TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Final Regulation
REGISTRAR'S NOTICE: The
State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Title of Regulation: 1VAC20-40. Voter Registration (amending 1VAC20-40-10).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Effective Date: September 23, 2020.
Agency Contact: Samantha Buckley, Policy Analyst II,
Department of Elections, Richmond, VA 23219, telephone (804) 864-8948, or email
samantha.buckley@elections.virginia.gov.
Summary:
Pursuant to Chapter 1064 of the 2020 Acts of Assembly, the
amendments (i) strike the mention of a photo as it relates to voter IDs and
(ii) establish that the expiration date on a Virginia driver's license shall
not be considered when determining the validity of a driver's license offered
for voting purposes
Article 1
General Provisions
1VAC20-40-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Abode" or "place of abode" means a
physical place where a person dwells. One may have multiple places of abode,
such as a second home.
"Address" or "residence address" for
purposes of voter registration and address confirmation means the address of
residence in the precinct required for voter registration. An alternative
mailing address may be included on a voter registration application when: (i)
the residence address of the applicant cannot receive mail; or (ii) the voter
is otherwise eligible by law to provide an alternative mailing address.
Alternative mailing addresses must be sufficient to enable the delivery of mail
by the United States Postal Service. The post office box for published lists
may be provided either by the United States Postal Service or a commercial mail
receiving agency (CMRA) described in the United States Postal Service Domestic
Mail Manual.
"Authorized personnel" means the designated
individuals of a general registrar's office or the Department of Elections who
are permitted to access the voter registration database and capture information
necessary to generate photo identification cards.
"Domicile" means a
person's primary home, the place where a person dwells and which he considers
to be the center of his domestic, social, and civil life. Domicile is primarily
a matter of intention, supported by an individual's factual circumstances. Once
a person has established domicile, establishing a new domicile requires that he
intentionally abandon his old domicile. For any applicant, the registrar shall
presume that domicile is at the address of residence given by the person on the
application. The registrar shall not solicit evidence to rebut this presumption
if the application appears to be legitimate, except as provided in 1VAC20-40-40
B and C.
"Permanent satellite location" means an office
managed, maintained, and operated under the control of the general registrar
for the locality that is consistently operational throughout the year and is
not the principal office of the general registrar. Offices of other agencies
where registration takes place pursuant to § 24.2-412 B of the Code of Virginia
are not considered permanent satellite locations.
"Residence," "residency," or
"resident" for all purposes of qualification to register and vote
means and requires both domicile and a place of abode.
"Valid" for all purposes related to voter
identification means (i) the document appears to be genuinely issued by the
agency or issuing entity appearing upon the document, (ii) the bearer of the
document reasonably appears to be the person whose photograph is contained
thereon, and (iii) (ii) the document shall be current or have
expired within the preceding 12 months. The expiration date on a Virginia
driver's license shall not be considered when determining the validity of a
driver's license offered for voting purposes. The officer of election shall
determine whether the document is officially acceptable based on its face.
"Voter photo identification card" means the
official voter registration card containing the voter's photograph and
signature referenced in § 24.2-404 A 3 of the Code of Virginia.
VA.R. Doc. No. R21-6483; Filed August 11, 2020, 2:59 p.m.
TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Proposed Regulation
Proposed Regulation
REGISTRAR'S NOTICE: The
State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Title of Regulation: 1VAC20-60. Election
Administration (amending 1VAC20-60-50).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: October 2, 2020.
Agency Contact: Daniel Davenport, Policy Analyst,
Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804)
593-2270, or email daniel.davenport@elections.virginia.gov.
Summary:
The proposed amendments add an alternative secure process
for dealing with overfull optical scan ballot containers at the general
registrar's office and satellite office locations.
1VAC20-60-50. Overfull optical scan ballot container.
A. If an optical scan reader in use in a
registrar's office or a polling place or a central absentee precinct
malfunctions because the connected ballot container includes too many ballots,
election officials may open the ballot container and empty the ballots with the
following safeguards:
1. The optical scan ballot container shall be opened in plain
sight of any authorized party representatives or other observers and, once the
ballots have been deposited into an auxiliary ballot container, both ballot
containers shall remain in plain sight in the polling place.
2. Any such auxiliary ballot container used shall meet the
requirements of § 24.2-623 of the Code of Virginia.
3. In a general, special, or dual-party primary election, a
minimum of two officers of election, not representing the same political party,
shall execute such a transfer of ballots. In a single-party primary election,
the transfer shall be conducted by a minimum of two officers of election who
may represent the same party.
B. In the event that an optical scan reader in a general
registrar's office or satellite location malfunctions because the connected
ballot container includes too many ballots or there is no storage for ballots,
election officials may follow either the process outlined in subsection A of
this section or the following alternative procedure:
1. The general registrar, assistant registrars, or officers
of election may remove the overflow ballots from the connected ballot container
and place them in a secure container.
2. That container will be sealed or locked by the general
registrar, assistant registrars, or officers of election with their signatures,
the date, and a record of the number of ballots that have been secured in that
container.
3. The sealed or locked container shall be immediately
transported to the general registrar's office by either the officers of
election, the general registrar, or an assistant general registrar.
4. At the general registrar's office, the container shall
be stored in a secure, locked location that is away from the access or view of
the public and that is accessible only to the general registrar or assistant
registrars.
VA.R. Doc. No. R21-6480; Filed August 11, 2020, 5:04 p.m.
TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Proposed Regulation
REGISTRAR'S NOTICE: The
State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Title of Regulation: 1VAC20-60. Election
Administration (adding 1VAC20-60-70).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: October 2, 2020.
Agency Contact: Daniel Davenport, Policy Analyst,
Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804)
393-0493, or email daniel.davenport@elections.virginia.gov.
Summary:
The proposed new section establishes logic and accuracy
testing requirements for electronic pollbooks.
1VAC20-60-70. Mandatory logic and accuracy testing for
electronic pollbooks.
All localities must perform logic and accuracy testing on
their electronic pollbooks (EPBs) and certify to the Department of Elections
that testing was completed by noon on the day prior to any election. This
testing must confirm that the EPBs will provide promptly an accurate and secure
record of those who have voted pursuant to § 24.2-611 of the Code of Virginia.
Specifically, the logic and accuracy testing must do the following:
1. The logic and accuracy testing must confirm that the
appropriate election-specific data files were downloaded to the electronic pollbook.
In dual primary elections, localities must show that applicable voter
registration files were downloaded from both political parties so that the
combined data files contain all voters and all absentee ballot information for
voters eligible to participate in the election.
2. The logic and accuracy testing must confirm that the
electronic pollbooks for each election are set to the correct type of election
being held in that jurisdiction. For example, the data on the electronic
pollbook must correlate with whether the upcoming election is a primary (single
or dual) or general election.
3. The logic and accuracy testing must show that all
precincts will provide the correct ballot styles to voters in the precincts.
The locality must provide certification to the Department of Elections that all
EPBs being used in an election have been tested in compliance with this
section.
If a locality repeatedly fails to perform logic and
accuracy testing on their electronic pollbooks, then the Department of
Elections and State Board of Elections may disallow the locality's use of
electronic pollbooks in subsequent elections.
VA.R. Doc. No. R21-6477; Filed August 11, 2020, 5:02 p.m.
TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Proposed Regulation
REGISTRAR'S NOTICE: The
State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Title of Regulation: 1VAC20-70. Absentee Voting (amending 1VAC20-70-20).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: October 2, 2020.
Agency Contact: Daniel Davenport, Policy Analyst,
Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804)
393-0493, or email daniel.davenport@elections.virginia.gov.
Summary:
The proposed amendments (i) clarify that a missing postmark
is an immaterial omission and that a ballot received by noon on the third day
after an election with no postmark will still count toward that election's
result and (ii) define "postmark."
1VAC20-70-20. Material omissions from absentee ballots.
A. Pursuant to the requirements of § 24.2-706 of the
Code of Virginia, a timely received absentee ballot contained in an Envelope B
shall not be rendered invalid if it contains an error or omission not material
to its proper processing.
B. The following omissions are always material and any
Envelope B containing such omissions shall be rendered invalid if any of the
following exists:
1. Except as provided in subdivisions C 2 and 3 of this
section, the voter did not include his full first name;
2. The voter did not provide his last name;
3. The voter omitted his generational suffix when one or more
individuals with the same name are registered at the same address, and it is
impossible to determine the identity of the voter;
4. The voter did not provide his house number and street name
or his rural route address;
5. The voter did not provide either his city or zip code;
6. The voter did not sign Envelope B; or
7. The voter's witness did not sign Envelope B.
C. The ballot shall not be rendered invalid if on the
Envelope B:
1. The voter included his full name in an order other than
"last, first, middle";
2. The voter used his first initial instead of his first full
name, so long as the voter provided his full middle name;
3. The voter provided a derivative of his legal name as his
first or middle name (e.g., "Bob" instead of "Robert");
4. If the voter provided his first name and last name, the
voter did not provide a middle name or a middle initial;
5. The voter did not provide his residential street identifier
(Street, Drive, etc.);
6. The voter did not provide a zip code, so long as the voter
provided his city;
7. The voter did not provide his city, so long as the voter
provided his zip code;
8. The voter omitted the date, or provided an incorrect or
incomplete date on which he signed Envelope B; or
9. The ballot is imperfectly sealed within Envelope B,
provided that the outer envelope with Envelope B and the ballot arrived sealed.
10. The illegibility of a voter's or witness' signature on an
Envelope B shall not be considered an omission or error.
D. For the purposes of this regulation, "city" may
include the voter's locality, town, or any acceptable mailing name for the
five-digit zip code of the voter's residence.
E. Whether an error or omission on an Envelope B not
specifically addressed by this regulation is material and shall render the
absentee ballot invalid shall be determined by a majority of the officers of
the election present.
F. The ballot shall not be rendered invalid based on a
missing or illegible postmark if the ballot is received by the general
registrar's office by noon on the third day after the election pursuant to §
24.2-709 of the Code of Virginia and the return envelope does not have a
postmark, or the postmark is missing or illegible.
G. For the purposes of this chapter, "postmark"
means an official postmark of the United States Postal Service (USPS) or any
other official indicia of confirmation of mailing by the USPS or other postal
or delivery service.
VA.R. Doc. No. R21-6478; Filed August 11, 2020, 4:59 p.m.
TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Proposed Regulation
REGISTRAR'S NOTICE: The
State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Title of Regulation: 1VAC20-70. Absentee Voting (adding 1VAC20-70-70).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: October 2, 2020.
Agency Contact: David Nichols, Director of Election
Services, Department of Elections, 1100 Bank Street, Richmond, VA 23219,
telephone (804) 864-8952, or email david.nichols@elections.virginia.gov.
Summary:
The proposed amendments establish requirements for absentee
ballot envelopes.
1VAC20-70-70. Mandatory mailing elements on absentee ballot
envelopes.
A. For the purposes of this regulation, the following
words and terms have the following meanings:
"Outer absentee envelope" means the envelope
containing the materials referred to in § 24.2-706 B 3 of the Code of Virginia.
"Special insignia" and "insignia" mean
the Official Election Mail logo registered by the United States Postal Service
with the United States Patent and Trademark Office.
B. All general registrars must place intelligent mail
barcodes on both the outer absentee envelope and on the return envelope.
C. Both the outer absentee envelope and return envelope
must include a special insignia to identify Official Election Mail. The
Department of Elections will ensure the proper insignia is available to the
general registrars of each county and city.
VA.R. Doc. No. R21-6479; Filed August 11, 2020, 4:56 p.m.
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
DEPARTMENT OF FORENSIC SCIENCE
Final Regulation
Title of Regulation: 6VAC40-30. Regulations for the
Approval of Field Tests for Detection of Drugs (amending 6VAC40-30-10, 6VAC40-30-30,
6VAC40-30-40, 6VAC40-30-50, 6VAC40-30-70, 6VAC40-30-80).
Statutory
Authority:
§ 9.1-1110 of the Code of Virginia.
Effective Date: October 1, 2020.
Agency Contact: Amy Jenkins, Department Counsel, Department
of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804)
786-6848, FAX (804) 786-6857, or email amy.jenkins@dfs.virginia.gov.
Summary:
The amendments (i) modify the definitions of "field
test" and "field test kit" to include presumptive mobile
instruments, (ii) provide a process by which the department evaluates
presumptive mobile instruments, (iii) establish a separate set of requirements
for maintenance of approved status for presumptive mobile instruments, and (iv)
provide the fee schedule for approval of presumptive mobile instruments.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
Part I
Definitions
6VAC40-30-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Agency" means any federal, state, or local
government law-enforcement organization in the Commonwealth.
"Approval authority" means the Director of the
Department of Forensic Science or the director's designee.
"Department" means the Department of Forensic
Science.
"Drug" means any controlled substance, imitation
controlled substance, or marijuana, as defined in § 18.2-247 of the Code of
Virginia.
"Field test" means any presumptive chemical test unit
or any presumptive mobile instrument used outside of a chemical forensic
laboratory environment to detect the presence of a drug.
"Field test kit" means a combination of
individual field tests units.
"List of approved field tests" means a list of
field tests or field test kits approved by the department for use by
law-enforcement agencies in the Commonwealth and periodically published by the
department in the Virginia Register of Regulations in accordance with §
19.2-188.1 of the Code of Virginia.
"Manufacturer" means any entity that makes or
assembles field test units or field test kits tests to be
used by any law-enforcement officer or agency in the Commonwealth for the
purpose of detecting a drug.
"Manufacturers' instructions and claims" means
those testing procedures, requirements, instructions, precautions, and
proposed conclusions that are published by the manufacturer and supplied with
the field tests or field test kits.
"Street drug preparations" means any drug or
combination of drugs and any other substance that has been encountered or is
likely to be encountered by a law-enforcement officer as a purported drug in
the Commonwealth.
6VAC40-30-30. Request for evaluation.
A. Any manufacturer that wishes to submit field tests or
field test kits for evaluation shall submit a written request for
evaluation to the department director at the following address:
Director
Department of Forensic Science
700 North Fifth Street
Richmond, VA 23219
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B. Materials For presumptive chemical tests,
materials sufficient for at least 10 field tests shall be supplied
for each drug for which the manufacturer requests evaluation. The materials shall
include all instructions, precautions, color charts, flow charts, and the
like which other accompanying informational materials that are
provided with the field test or field test kit and which that
describe the use and interpretation of the tests test. The
manufacturer shall also include exact specifications as to the chemical
composition of all chemical or reagents used in the presumptive chemical tests.
These specifications shall include the volume or weight of the chemicals and
the nature of their packaging. Safety Data Sheets for each chemical or reagent
shall be sufficient for this purpose.
C. The manufacturer shall also include exact
specifications as to the chemical composition of all chemicals or reagents used
in the field tests. These shall include the volume or weight of the chemicals
and the nature of their packaging. Material Safety Data Sheets for each
chemical or reagent shall be sufficient for this purpose For presumptive
mobile instruments, two nonsequentially manufactured instruments and supporting
materials shall be supplied for each model for which the manufacturer requests
evaluation. These materials shall include all instructions, all training
materials regarding the use of the instrument by law enforcement, the
instrument specifications, a list of compounds in the instrument's library, and
any foundational validation studies. If the manufacturer provides training for
users of the instruments beyond the written instructional materials, such
training shall be made available for the evaluation. The instruments shall be
returned to the manufacturer upon completion of the evaluation.
D. The department's evaluation process will require at least
120 days from the receipt of the written request and all needed materials from
the manufacturer.
E. The department will use commonly encountered street drug
preparations to examine those field tests submitted for evaluation. In order to
be approved, the field presumptive chemical test must correctly
react in a clearly observable fashion to the naked eye, and perform in
accordance with manufacturers' instructions and claims. In order to be
approved, the presumptive mobile instrument must perform in accordance with the
manufacturer's instructions and advertised claims and offer convenience and
efficiency in operation as determined by the department.
6VAC40-30-40. Notice of decision.
The department will notify each manufacturer in writing of
the approval or disapproval of each field test for which evaluation was
requested. Should any field test not be approved, the manufacturer may
resubmit their its request for evaluation of that field test
according to the previously outlined procedures. Resubmitted requests for
approval shall be accompanied by a detailed explanation of all modifications or
changes to the field test, the field test instructions, or the
manufacturer's claims since the department's most recent evaluation of the field
test.
6VAC40-30-50. Maintenance of approved status.
The department may require that this evaluation a
reevaluation be done as often as annually for routine purposes. If any
modifications are made to an any approved field test by the
manufacturer, other than additions to the compounds in a presumptive mobile
instrument's library, the department shall be notified in writing of the
changes. These modifications shall include any chemical, procedural,
instructional, or firmware or software modifications made to the field test.
The department may require reevaluation of any approved field test upon
receiving notification of any such modifications.
If unreported modifications are discovered by the department,
the department may require that all evaluations be repeated for the
particular manufacturer's a reevaluation of the approved field tests
test at any time. The department shall notify the manufacturer in
writing of this requirement. Any modified field test must be approved before
it can be used in accordance with § 19.2-188.1 of the Code of Virginia.
These changes shall include, but are not limited to any chemical, procedural or
instructional modifications made to the field test.
6VAC40-30-70. Liability.
A. The department assumes no liability as to the safety of
these field tests or field test kits, any chemicals contained therein,
or the procedures and instructions by which they are used.
B. The department further assumes no responsibility for any
incorrect results or interpretations obtained from these presumptive
chemical field tests.
Part III
Fees
6VAC40-30-80. Fees.
Manufacturers For presumptive chemical tests,
manufacturers shall pay the actual cost of the each street
drug preparation and will be charged a fee of $50 for each drug for which
individual evaluation is requested. For presumptive mobile instruments,
manufacturers shall pay the actual cost of each street drug preparation and a
fee of $2,500 for each model of the presumptive mobile instrument for which
evaluation is requested. The department will review the manufacturer's
request and notify the manufacturer in writing of the amount due before the
evaluation begins. Manufacturers who wish to withdraw a request for evaluation
shall immediately notify the department in writing. The department's assessment
of the amount of payment required will be based upon a detailed review of the
manufacturer's request, and that amount will be final. The evaluation
process will not be initiated before full payment is made to the Treasurer of
Virginia.
VA.R. Doc. No. R18-5420; Filed August 6, 2020, 12:29 p.m.
TITLE 8. EDUCATION
STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA
Final Regulation
REGISTRAR'S NOTICE: The
State Council of Higher Education for Virginia is claiming an exemption from
Article 2 of 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 or the appropriation act where no
agency discretion is involved. The State Council of Higher Education for
Virginia will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 8VAC40-31. Regulations Governing
Certification of Certain Institutions to Confer Degrees, Diplomas and
Certificates (amending 8VAC40-31-160).
Statutory Authority: §§ 23.1-203 and 23.1-215 of the
Code of Virginia.
Effective Date: September 30, 2020.
Agency Contact: Beverly Rebar, Senior Associate for
Academic and Legislative Affairs, State Council of Higher Education for
Virginia, 101 North 14th Street, 9th Floor, Monroe Building, Richmond, VA
23219, telephone (804) 371-0571, or email beverlyrebar@schev.edu.
Summary:
Pursuant to Chapter 1135 of the 2020 Acts of Assembly, the
amendments prohibit conditioning the enrollment of a student on entering into
an agreement that requires the student to (i) arbitrate any dispute between the
student and the school, regardless of whether the agreement permits the student
to opt out of the requirement to arbitrate any such dispute in the future or
(ii) resolve a dispute on an individual basis and waive the right to class or
group actions.
8VAC40-31-160. Certification criteria for all postsecondary
schools.
A. The criteria in this section shall apply to all
postsecondary schools for which certification is required. With regard to
postsecondary schools that are accredited by an accrediting agency recognized
by the U.S. Department of Education, the council may apply a presumption of
compliance with criteria in this section if the school has complied with an
accreditation standard directed to the same subject matter as the criteria. The
council need not apply this presumption if the accreditation standard is
deficient in satisfying an identifiable goal of the council. The council shall
articulate reasons that the accreditation standard is deficient.
B. The postsecondary school shall have a clear, accurate, and
comprehensive written statement, which shall be available to the public upon
request. The statement minimally shall include the following items:
1. The history and development of the postsecondary school;
2. An identification of any persons, entities, or institutions
that have a controlling ownership or interest in the postsecondary school;
3. The purpose of the postsecondary school, including a
statement of the relative degree of emphasis on instruction, research, and
public service as well as a statement demonstrating that the school's proposed
offerings are consistent with its stated purpose;
4. A description of the postsecondary school's activities,
including telecommunications activities away from its principal location, and a
list of all program areas in which courses are offered away from the principal
location;
5. A list of all locations in Virginia at which the
postsecondary school offers courses and a list of the degree and nondegree programs
currently offered or planned to be offered in Virginia;
6. For each Virginia location, and for the most recent
academic year, the total number of students who were enrolled as well as the
total number and percentage of students who were enrolled in each program
offered;
7. For each Virginia location, the total number of students
who completed or graduated from the school as of the end of the last academic
year and the total number and percentage of students who completed or graduated
from each program offered by the school as of the end of the last academic
year; and
8. For unaccredited institutions of higher education and
career-technical schools only, the total number of students who report
employment in their field of study within (i) six months of completion or
graduation and (ii) one year of completion or graduation.
C. The postsecondary school or branch shall have a current,
written document available to students and the general public upon request that
accurately states the powers, duties, and responsibilities of:
1. The governing board or owners of the school;
2. The chief operating officer, president, or director at that
branch in Virginia;
3. The principal administrators and their credentials at that
branch in Virginia; and
4. The students, if students participate in school governance.
D. The postsecondary school shall have, maintain, and provide
to all applicants a policy document accurately defining the minimum
requirements for eligibility for admission to the school and for acceptance at
the specific degree level or into all specific degree programs offered by the
postsecondary school that are relevant to the school's admissions standards. In
addition, the document shall explain:
1. The standards for academic credit or course completion
given for experience;
2. The criteria for acceptance of transfer credit where
applicable;
3. The criteria for refunds of tuition and fees;
4. Students' rights, privileges, and responsibilities; and
5. The established grievance process of the school, which
shall indicate that students should follow this process and may contact council
staff to file a complaint about the school as a last resort. The written policy
shall include a provision that students will not be subjected to adverse
actions by any school officials as a result of initiating a complaint.
E. The postsecondary school shall maintain records on all
enrolled students. At a minimum, these records shall include:
1. Each student's application for admission and admissions
records containing information regarding the educational qualifications of each
regular student admitted that are relevant to the postsecondary school's
admissions standards. Each student record must reflect the requirements and
justification for admission of the student to the postsecondary school.
Admissions records must be maintained by the school, its successors, or its
assigns for a minimum of three years after the student's last date of
attendance.
2. An original agreement titled "Student Enrollment
Agreement" signed by the student and an authorized representative of the
school. The use of electronic signatures is permissible so long as the use
complies with the Uniform Electronic Transactions Act (§ 59.1-479 et seq. of
the Code of Virginia).
a. (Reserved.)
b. (Reserved.)
c. No postsecondary school shall condition the enrollment
of a student on:
(1) Entering into an agreement that requires the student to
arbitrate any dispute between the student and the school, regardless of whether
the agreement permits the student to opt out of the requirement to arbitrate
any such dispute in the future; or
(2) Entering into an agreement that requires the student to
resolve a dispute on an individual basis and waive the right to class or group
actions.
2. 3. A transcript of the student's academic or
course work at the school, which shall be retained permanently in either hard
copy forms or in an electronic database with backup by the school, its
successors, or its assigns.
3. 4. A record of student academic or course
progress at the school including programs of study, dates of enrollment,
courses taken and completed, grades, and indication of the student's current
status (graduated, probation, etc.) must be retained permanently. Any changes
or alterations to student records must be accurately documented and signed by
an appropriate school official.
4. 5. A record of all financial transactions
between each individual student and the school including payments from the
student, payments from other sources on the student's behalf, and refunds.
Fiscal records must be maintained for a minimum of three years after the
student's last date of attendance. When tuition and fees are paid by the
student in installments, a clear disclosure of truth-in-lending statement must
be provided to and signed by the student.
5. 6. The school shall make the documents
referenced in subdivisions 1 through 4 of this subsection available to the
student upon request. Academic transcripts shall be provided upon request if
the student is in good financial standing.
F. Each school shall provide or make available to students,
prospective students, and other interested persons a catalog, bulletin,
brochure, or electronic media containing, at a minimum, the following
information:
1. The number of students enrolled in each program offered.
2. For each Virginia location, the total number of students
who completed or graduated from the school as of the end of the last academic
year and the total number and percentage of students who completed or graduated
from each program offered by the school as of the end of the last academic
year.
3. A description of any financial aid offered by the school
including repayment obligations, standards of academic progress required for
continued participation in the program, sources of loans or scholarships, the
percentage of students receiving federal financial aid (if applicable) and the
average student indebtedness at graduation.
4. A broad description, including academic or career-technical
objectives of each program offered, the number of hours of instruction in each
subject and total number of hours required for course completion, course
descriptions, and a statement of the type of credential awarded.
5. A statement of tuition and fees and other charges related
to enrollment, such as deposits, fees, books and supplies, tools and equipment,
and any other charges for which a student may be responsible.
6. The school's refund policy for tuition and fees pursuant to
subsection N of this section.
7. The school's procedures for handling complaints, including
procedures to ensure that a student will not be subject to unfair actions as a
result of his initiation of a complaint proceeding.
8. The name and address of the school's accrediting body, if
applicable.
9. The minimum requirements for satisfactory completion of
each degree level and degree program, or nondegree certificates or diplomas.
10. A statement that accurately describes the transferability
of any courses.
11. A statement that accurately represents the transferability
of any diplomas, certificates, or degrees offered by the school.
12. If the institution offers programs leading to the
Associate of Applied Science or Associate of Occupational Science degree, a
statement that these programs are terminal occupational or technical programs
and that credits generally earned in these programs are not applicable to other
degrees.
13. The academic or course work schedule for the period
covered by the publication.
14. A statement that accurately details the type and amount of
career advising and placement services offered by the school.
15. The name, location, and address of the main campus,
branch, or instructional site operating in Virginia.
G. The school must have a clearly defined process by which
the curriculum is established, reviewed, and evaluated. Evaluation of
school effectiveness must be completed on a regular basis and must include,
but not be limited to:
1. An explanation of how each program is consistent with the
mission of the school.
2. An explanation of the written process for evaluating each
degree level and program, or career-technical program, once initiated and an
explanation of the procedures for assessing the extent to which the educational
goals are being achieved.
3. Documented use of the results of these evaluations to
improve the degree and career-technical programs offered by the school.
H. Pursuant to § 23-276.3 B of the Code of Virginia, the
school must maintain records that demonstrate it is financially sound;
exercises proper management, financial controls and business practices; and can
fulfill its commitments for education or training. The school's financial
resources should be characterized by stability, which indicates the school is
capable of maintaining operational continuity for an extended period of time.
The stability indicator that will be used is the USDOE Financial Ratio
(composite score).
1. Institutions of higher education shall provide the results
of an annual audited, reviewed or compiled financial statement. Career-technical
schools shall provide the results of an annual audited, reviewed or compiled
financial statement or the school may elect to provide financial information on
forms provided by council staff. The financial report shall be prepared in
accordance with generally accepted accounting principles (GAAP) currently in
effect. The financial report shall cover the most recent annual accounting
period completed.
2. The USDOE composite score range is -1.0 to 3.0. Schools
with a score of 1.5 to 3.0 meet fully the stability requirement in subsection I
of this section; scores between 1.0 and 1.4 meet the minimum expectations; and
scores less than 1.0 do not meet the requirement and shall be immediately
considered for audit.
I. Pursuant to § 23-276.3 B of the Code of Virginia, the
school shall have and maintain a surety instrument issued by a surety company
or banking institution authorized to transact business in Virginia that is
adequate to provide refunds to students for the unearned non-Title IV portion
of tuition and fees for any given semester, quarter or term and to cover the
administrative cost associated with the instrument claim. The instrument shall
be based on the non-Title IV funds that have been received from students or
agencies for which the education has not yet been delivered. This figure shall
be indicated in an audited financial statement as a Current (non-Title IV)
Tuition Liability. A school certified under this regulation shall be exempt
from the surety instrument requirement if it can demonstrate a USDOE composite
financial responsibility score of 1.5 or greater on its current financial
statement; or if it can demonstrate a composite score between 1.0 and 1.4 on
its current financial statement and has scored at least 1.5 on a financial
statement in either of the prior two years. The school's eligibility for the
surety waiver shall be determined annually, at the time of recertification.
1. Public postsecondary schools originating in a state other
than Virginia that are operating a branch campus or instructional site in the
Commonwealth of Virginia are exempt from the surety bond requirement.
2. New schools and unaccredited existing schools must complete
at least five calendar years of academic instruction or certification to
qualify for the surety waiver or exemption.
3. Existing schools seeking a waiver of the surety instrument
requirement must submit an audited financial statement for the most recent
fiscal year end that reflects the appropriate composite score as indicated in
this subsection.
J. The school shall have a current written policy on faculty
accessibility that shall be distributed to all students. The school shall
ensure that instructional faculty are accessible to students for academic or
course advising at stated times outside a course's regularly scheduled class
hours at each branch and throughout the period during which the course is
offered.
K. All recruitment personnel must provide prospective
students with current and accurate information on the school through the use of
written and electronic materials and in oral admissions interviews:
1. The school shall be responsible and liable for the acts of
its admissions personnel.
2. No school, agent, or admissions personnel shall knowingly
make any statement or representation that is false, inaccurate or misleading
regarding the school.
L. All programs offered via telecommunications or distance
education must be comparable in content, faculty, and resources to those
offered in residence and must include regular student-faculty interaction by
computer, telephone, mail, or face-to-face meetings. Telecommunication programs
and courses shall adhere to the following minimum standards:
1. The educational objectives for each program or course shall
be clearly defined, simply stated, and of such a nature that they can be
achieved through telecommunications.
2. Instructional materials and technology methods must be
appropriate to meet the stated objectives of the program or course. The school
must consider and implement basic online navigation of any course or program,
an information exchange privacy and safety policy, a notice of minimum
technology specification for students and faculty, proper system monitoring,
and technology infrastructure capabilities sufficient to meet the demands of
the programs being offered.
3. The school shall provide faculty and student training and
support services specifically related to telecommunication activities.
4. The school shall provide for methods for timely interaction
between students and faculty.
5. The school shall develop standards that ensure that
accepted students have sufficient background, knowledge, and technical skills
to successfully undertake a telecommunications program.
M. The school shall maintain and ensure that students have
access to a library with a collection, staff, services, equipment, and
facilities that are adequate and appropriate for the purpose and enrollment of
the school. Library resources shall be current, well distributed among fields
in which the institution offers instructions, cataloged, logically organized,
and readily located. The school shall maintain a continuous plan for library
resource development and support, including objectives and selections of
materials. Current and formal written agreements with other libraries or with
other entities may be used. Institutions offering graduate work shall provide
access to library resources that include basic reference and bibliographic
works and major journals in each discipline in which the graduate program is
offered. Career-technical schools shall provide adequate and appropriate
resources for completion of course work.
N. In accordance with § 23-276.3 B of the Code of Virginia,
the school shall establish a tuition refund policy and communicate it to
students. Each school shall establish, disclose, and utilize a system of
tuition and fee charges for each program of instruction. These charges shall be
applied uniformly to all similarly circumstanced students. This requirement
does not apply to group tuition rates to business firms, industry, or
governmental agencies that are documented by written agreements between the
school and the respective organization.
1. The school shall adopt a minimum refund policy relative to
the refund of tuition, fees, and other charges. All fees and payments, with the
exception of the nonrefundable fee described in subdivision 2 of this
subsection, remitted to the school by a prospective student shall be refunded
if the student is not admitted, does not enroll in the school, does not begin
the program or course, withdraws prior to the start of the program, or is
dismissed prior to the start of the program.
2. A school may require the payment of a reasonable
nonrefundable initial fee, not to exceed $100, to cover expenses in connection
with processing a student's enrollment, provided it retains a signed statement
in which the parties acknowledge their understanding that the fee is
nonrefundable. No other nonrefundable fees shall be allowed prior to
enrollment.
3. The school shall provide a period of at least three
business days, excluding weekends and holidays, during which a student
applicant may cancel his enrollment without financial obligation other than the
nonrefundable fee described in subdivision 2 of this subsection.
4. Following the period described in subdivision 3 of this
subsection, a student applicant (one who has applied for admission to a school)
may cancel, by written notice, his enrollment at any time prior to the first
class day of the session for which application was made. When cancellation is
requested under these circumstances, the school is required to refund all
tuition paid by the student, less a maximum tuition fee of 15% of the stated
costs of the course or program or $100, whichever is less. A student applicant
will be considered a student as of the first day of classes.
5. The date of the institution's determination that the
student withdrew should be no later than 14 calendar days after the student's
last date of attendance as determined by the institution from its attendance
records. The institution is not required to administratively withdraw a student
who has been absent for 14 calendar days. However, after 14 calendar days, the
institution is expected to have determined whether the student intends to
return to classes or to withdraw. In addition, if the student is eventually
determined to have withdrawn, the end of the 14-day period begins the timeframe
for calculating the refunds. In the event that a written notice is submitted,
the effective date of termination shall be the date of the written notice. The
school may require that written notice be transmitted via registered or
certified mail, or by electronic transmission provided that such a stipulation
is contained in the written enrollment contract. The school is required to
submit refunds to individuals who have terminated their status as students
within 45 days after receipt of a written request or the date the student last
attended classes whichever is sooner. An institution that provides the majority
of its program offerings through distance learning shall have a plan for
student termination, which shall be provided to council staff for review with
its annual or recertification application.
6. In the case of a prolonged illness or accident, death in
the family, or other special circumstances that make attendance impossible or
impractical, a leave of absence may be granted to the student if requested in
writing by the student or designee. No monetary charges or accumulated absences
may be assessed to the student during a leave of absence. A school need not
treat a leave of absence as a withdrawal if it is an approved leave of absence.
A leave of absence is an approved leave of absence if:
a. The school has a formal, published policy regarding leaves
of absence;
b. The student followed the institution's policy in requesting
the leave of absence and submits a signed, dated request with the reasons for
the leave of absence;
c. The school determines that there is a reasonable
expectation that the student will return to the school;
d. The school approved the student's request in accordance
with the published policy;
e. The school does not impose additional charges to the
student as a result of the leave of absence;
f. The leave of absence does not exceed 180 days in any
12-month period; and
g. Upon the student's return from the leave of absence, the
student is permitted to complete the coursework he began prior to the leave of
absence.
7. If a student does not resume attendance at the institution
on or before the end of an approved leave of absence, the institution must treat
the student as a withdrawal, and the date that the leave of absence was
approved should be considered the last date of attendance for refund purposes.
8. The minimum refund policy for a school that financially
obligates the student for a quarter, semester, trimester or other period not
exceeding 4-1/2 calendar months shall be as follows:
a. For schools that utilize an add/drop period, a student who
withdraws during the add/drop period shall be entitled to 100% refund for the
period.
b. For unaccredited schools and schools that do not utilize an
add/drop period:
(1) A student who enters school but withdraws during the first
1/4 (25%) of the period is entitled to receive as a refund a minimum of 50% of
the stated cost of the course or program for the period.
(2) A student who enters a school but withdraws after
completing 1/4 (25%), but less than 1/2 (50%) of the period is entitled to
receive as a refund a minimum of 25% of the stated cost of the course or
program for the period.
(3) A student who withdraws after completing 1/2 (50%), or
more than 1/2 (50%), of the period is not entitled to a refund.
9. The minimum refund policy for a school that financially
obligates the student for the entire amount of tuition and fees for the
entirety of a program or course shall be as follows:
a. A student who enters the school but withdraws or is
terminated during the first quartile (25%) of the program shall be entitled to
a minimum refund amounting to 75% of the cost of the program.
b. A student who withdraws or is terminated during the second
quartile (more than 25% but less than 50%) of the program shall be entitled to
a minimum refund amounting to 50% of the cost of the program.
c. A student who withdraws or is terminated during the third
quartile (more than 50% but less than 75%) of the program shall be entitled to
a minimum refund amounting to 25% of the cost of the program.
d. A student who withdraws after completing more than three
quartiles (75%) of the program shall not be entitled to a refund.
10. The minimum refund policy for a school that offers its
programs completely via telecommunications or distance education shall be as
follows:
a. For a student canceling after the 5th calendar day
following the date of enrollment but prior to receipt by the school of the
first completed lesson assignment, all moneys paid to the school shall be
refunded, except the nonrefundable fee described in subdivision 2 of this
subsection.
b. If a student enrolls and withdraws or is discontinued after
submission of the first completed lesson assignment, but prior to the
completion of the program, minimum refunds shall be calculated as follows:
(1) A student who starts the program but withdraws up to and
including completion of the first quartile (25%) of the program is entitled to
receive as a refund a minimum of 75% of the stated cost of the course or
program for the period.
(2) A student who starts the program but withdraws after
completing up to the second quartile (more than 25%, but less than 50%) of the
program is entitled to receive as a refund a minimum of 50% of the stated cost
of the course or program for the period.
(3) A student who starts the program but withdraws after
completing up to the third quartile (more than 50%, but less than 75%) of the
program is entitled to receive as a refund a minimum of 25% of the stated cost
of the course or program for the period.
(4) A student who withdraws after completing the third
quartile (75%) or more of the program is not entitled to a refund.
c. The percentage of the program completed shall be determined
by comparing the number of completed lesson assignments received by the school
to the total number of lesson assignments required in the program.
d. If the school uses standard enrollment terms, such as
semesters or quarters, to measure student progress, the school may use the
appropriate refund policy as provided in subdivision 8 or 9 of this subsection.
11. Fractions of credit for courses completed shall be
determined by dividing the total amount of time required to complete the period
or the program by the amount of time the student actually spent in the program
or the period, or by the number of correspondence course lessons completed, as
described in the contract.
12. Expenses incurred by students for instructional supplies,
tools, activities, library, rentals, service charges, deposits, and all other
charges are not required to be considered in tuition refund computations when
these expenses have been represented separately to the student in the
enrollment contract and catalogue, or other documents, prior to enrollment in
the course or program. The school shall adopt and adhere to reasonable policies
regarding the handling of these expenses when calculating the refund.
13. For programs longer than one year, the policy outlined in
subdivisions 9, 10, and 11 of this subsection shall apply separately for each
academic year or portion thereof.
14. Schools shall comply with the cancellation and settlement
policy outlined in this section, including promissory notes or contracts for
tuition or fees sold to third parties.
15. When notes, contracts or enrollment agreements are sold to
third parties, the school shall continue to have the responsibility to provide
the training specified regardless of the source of any tuition, fees, or other
charges that have been remitted to the school by the student or on behalf of
the student.
O. The school shall keep relevant academic transcripts for
all teaching faculty to document that each has the appropriate educational
credentials in the area of teaching responsibility. In the event teaching
qualification is based on professional competencies or scholarly achievements,
relevant documentation to support reported experience must be retained by the
school.
P. If an internship, externship, or production work is
necessary as a part of the school's education program, the school must adhere
to the following:
1. When programs contain internships or externships, in any
form, the professional training must:
a. Be identified as part of the approved curriculum of the
school and be specified in terms of expected learning outcomes in a written
training plan.
b. Be monitored by an instructor of record during the entire
period of the internship.
c. Not be used to provide labor or as replacement for a
permanent employee.
d. Be performed according to a specified schedule of time
required for training including an expected completion date.
e. If the internship, externship, or production work is part
of the course requirement, the student may not be considered as a graduate or
issued a graduation credential until the internship, externship, or production
work has been satisfactorily completed.
2. When receiving compensation for services provided by
students as part of their education program, the school must clearly inform
customers that services are performed by students by (i) posting a notice in
plain view of the public or (ii) requiring students to wear nametags that
identify them as students while performing services related to their training.
Q. An institution shall notify council staff of the following
occurrences no later than 30 days prior to said occurrence:
1. Addition of new programs or modifications to existing
program. Program names must adhere to the CIP taxonomy maintained by the
National Center for Education Statistics.
2. Addition of a new branch location or instructional site.
3. Address change of a branch or instructional site in
Virginia.
Notification of the above-referenced occurrences shall be
submitted in writing on forms provided by and in a manner prescribed by the
council.
R. An institution shall notify the council of the following
occurrences no later than 30 days following said occurrence.
1. Naming of new school president.
2. Naming of new campus or branch director.
3. Naming of person responsible for the regulatory oversight
of the institution.
VA.R. Doc. No. R21-6430; Filed August 12, 2020, 11:32 a.m.
TITLE 8. EDUCATION
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY
Final Regulation
REGISTRAR'S NOTICE:
Virginia Polytechnic Institute and State 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:
8VAC105-11. Parking and Traffic (amending 8VAC105-11-10).
Statutory Authority: § 23.1-1301 of the Code of
Virginia.
Effective Date: August 17, 2020.
Agency Contact: Lori Buchanan, Business Services
Specialist, Vice President for Policy and Governance, 319 Burruss Hall,
Blacksburg, VA 24061, telephone (540) 231-9512, or email lorib90@vt.edu.
Summary:
The amendment updates the university's parking regulations
to reflect revised parking and traffic procedures.
8VAC105-11-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Parking and Traffic Procedures" means the Parking
and Traffic Operational Manual, 2020-21 Academic Year, Volume 28,
Virginia Tech Parking Transportation Services, effective
August 1, 2019 revised July 2020.
"Virginia Tech" means Virginia Polytechnic
Institute and State University.
"University owned or leased property" means any
property owned, leased, or controlled by Virginia Tech.
DOCUMENTS INCORPORATED BY
REFERENCE (8VAC105-11)
Parking and Traffic Operational Manual, Volume 26, 2019-2020
Academic Year, Virginia Tech Division of Operations, Parking and Transportation
(rev. 8/2019)
Parking
and Traffic Operational Manual, 2020-21 Academic Year, Volume 28, Transportation
Services, Virginia Tech (rev. 7/2020)
VA.R. Doc. No. R21-6481; Filed August 12, 2020, 3:15 p.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Fast-Track Regulation
Title of Regulation: 9VAC25-20. Fees for Permits and Certificates (amending 9VAC25-20-110, 9VAC25-20-120, 9VAC25-20-130, 9VAC25-20-142).
Statutory Authority: § 62.1-44.15:6 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (803) 698-4238, or email melissa.porterfield@deq.virginia.gov.
Basis: Section 62.1-44.15:6 of the Code of Virginia directs the State Water Control Board to adopt regulations to assess fees to issue, reissue, amend, or modify any permit or certificate.
Purpose: A periodic review was recently conducted for this regulation, and the result of the review was to amend the regulation to remove fees that are no longer needed. This amendment removes fees for municipal separate storm sewer system (MS4) and construction activity permitting fees from this regulation. Permit fees for MS4 and construction activities are assessed under the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870) and are no longer needed in 9VAC25-20. Removal of the MS4 and construction activity fees will minimize confusion concerning the applicable permit fees. The amendments protect public health, safety, or welfare by removing incorrect permit fee information for MS4 and construction activities.
Rationale for Using Fast-Track Rulemaking Process: A periodic review was recently conducted for this regulation and the result of the review was to amend the regulation to remove fees that are no longer needed. This amendment removes fees for MS4 and construction activity permitting from this regulation. Permit fees for MS4 and construction activities are assessed under the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870) and are no longer needed in 9VAC25-20 and therefore the changes are noncontroversial.
Substance: This amendment removes fees for MS4 and construction activity permitting from this regulation.
Issues: Removing fees for MS4 and construction activity permitting from this regulation will benefit the public and the agency. Removing these fees will minimize confusion concerning the applicable permit fees. 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. The State Water Control Board (Board) proposes to repeal obsolete text.
Background. The Virginia storm water management program has been administered by both the Department of Environmental Quality (DEQ) and the Department of Conservation and Recreation (DCR). DEQ administered the program through 9VAC25-750 General Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation for Discharges of Storm Water from Small Municipal Separate Storm Sewer Systems until the 2004 General Assembly adopted legislation (Chapter 372)1 that transferred the storm water permitting responsibility from DEQ to DCR. The fees for the program regulated through 9VAC25-750 are in 9VAC25-20 Fees for Permits and Certificates. After the General Assembly transferred the storm water permitting responsibility from DEQ to DCR, the Board repealed 9VAC25-750,2 but did not remove fee listings for storm water permits from 9 VAC 25-20. The Board now proposes to amend certain sections of 9VAC 25-20 to remove the fees associated with storm water permits. Other fees will remain unchanged.
The 2013 Virginia Acts of Assembly (Chapters 7563 and 7934) then transferred certain water quality programs from DCR to DEQ, including storm water. Consequently, a new DEQ regulation was promulgated: 9 VAC 25-870 Virginia Stormwater Management Program.5 Storm water permit fees are included in 9 VAC 25-870.
Estimated Benefits and Costs. The fees concerning storm water permits listed in 9VAC25-20 are obsolete and have not been assessed since 2004. The proposed removal of these fees from the regulation would have no impact on fees charged or collected, but would be beneficial in that it would reduce the likelihood that readers of the regulation are misled.
Businesses and Other Entities Affected. The proposed repeal of text would affect readers of the regulation. No costs would be introduced.
Small Businesses6 Affected. The proposed repeal of text does not appear to substantively affect small businesses.
Localities7 Affected.8 The proposed repeal of text does not appear to substantively affect localities and does not introduce costs for local governments.
Projected Impact on Employment. The proposed repeal of text does not affect total employment.
Effects on the Use and Value of Private Property. The proposed repeal of text does not appear to substantively affect the use and value of private property or real estate development costs.
______________________________
1See http://leg1.state.va.us/cgi-bin/legp504.exe?041+ful+CHAP0372
2See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=1872
3See http://leg1.state.va.us/cgi-bin/legp504.exe?131+ful+CHAP0756
4See http://leg1.state.va.us/cgi-bin/legp504.exe?131+ful+CHAP0793
5See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=4069
6Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."
7"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.
8§ 2.2-4007.04 defines “particularly affected" as bearing disproportionate material impact.
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:
As a result of a periodic review of 9VAC25-20, the amendments remove permitting fees for municipal separate storm sewer systems and construction activity, which are no longer administered under this chapter.
9VAC25-20-110. Fee schedules for individual VPDES and VPA new permit issuance, and individual VWP, SWW, and GWW new permit issuance and existing permit reissuance.
A. Virginia Pollutant Discharge Elimination System (VPDES) permits. The following fee schedules apply to applications for issuance of a new individual VPDES permit or certificate. (Note: All flows listed in the table below are facility "design" flows.)
VPDES Industrial Major | $24,000 |
VPDES Municipal Major | $21,300 |
VPDES Municipal Major Stormwater/MS4
| $21,300
|
VPDES Industrial Minor/No Standard Limits | $10,200 |
VPDES Industrial Minor/Standard Limits | $3,300 |
VPDES Industrial Stormwater | $7,200 |
VPDES Municipal Minor/Greater Than 100,000 GPD | $7,500 |
VPDES Municipal Minor/10,001 GPD-100,000 GPD | $6,000 |
VPDES Municipal Minor/1,001 GPD-10,000 GPD | $5,400 |
VPDES Municipal Minor/1,000 GPD or less | $2,000 |
VPDES Municipal - The authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge | $5,000* |
VPDES Municipal Minor Stormwater/MS4
| $2,000
|
*For a new VPDES permit that includes authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge, the $5,000 biosolids permit fee will be paid in addition to the required VPDES permit fee. |
B. Virginia Pollution Abatement (VPA) permits. The following fee schedules apply to applications for issuance of a new individual VPA permit or certificate.
VPA Concentrated Animal Feeding Operation | (Reserved) |
VPA Intensified Animal Feeding Operation | (Reserved) |
VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $15,000 |
VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $10,500 |
VPA Industrial Sludge Operation | $7,500 |
VPA Combined Sludge Operation - Industrial Sludge (excluding water treatment plant residuals) and Municipal Biosolids | $7,500 |
VPA Municipal Wastewater Operation | $13,500 |
VPA Municipal Biosolids Operation | $5,000 |
All other operations not specified above | $750 |
C. Virginia Water Protection (VWP) permits. The following fee schedules apply to applications for issuance of a new individual and reissuance of an existing individual VWP permit or certificate. Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity. (Note: Withdrawal amounts shown in the table below are maximum daily withdrawals.)
VWP Individual/Surface Water Impacts (Wetlands, Streams and/or Open Water) | $2,400 plus $220 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($60,000 maximum) |
VWP Individual/Minimum Instream Flow - Withdrawals equal to or greater than 3,000,000 gallons on any day | $25,000 |
VWP Individual/Minimum Instream Flow - Withdrawals between 2,000,000 and 2,999,999 gallons on any day | $20,000 |
VWP Individual/Minimum Instream Flow - Withdrawals between 1,000,000 and 1,999,999 gallons on any day | $15,000 |
VWP Individual/Minimum Instream Flow - Withdrawals less than 1,000,000 gallons on any day that do not otherwise qualify for a general VWP permit for water withdrawals | $10,000 |
VWP Individual/Reservoir - Major | $35,000 |
VWP Individual/Reservoir - Minor | $25,000 |
VWP Individual/Nonmetallic Mineral Mining | $2,400 plus $220 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($7,500 maximum) |
D. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual SWW permit or certificate.
Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) |
Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) |
Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) |
Surface Water Withdrawal | $12,000 |
E. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia. The following fee schedules apply to applications for issuance of a new individual, and reissuance of an existing individual GWW permit or certificate.
Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) |
Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) |
Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) |
Groundwater Withdrawal/Initial Permit for an Existing Withdrawal Based Solely on Historic Withdrawals | $1,200 |
Groundwater Withdrawal - effective through December 31, 2018 | $6,000 |
Groundwater Withdrawal - effective January 1, 2019 | $9,000 |
9VAC25-20-120. Fee schedules for major modification of individual permits or certificates requested by the permit or certificate holder.
The following fee schedules apply to applications for major modification of an individual permit or certificate requested by the permit or certificate holder:
1. Virginia Pollutant Discharge Elimination System (VPDES) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date. (Note: All flows listed in the table below are facility "design" flows.)
VPDES Industrial Major | $12,000 |
VPDES Municipal Major | $10,650 |
VPDES Municipal Major Stormwater/MS4
| $5,150
|
VPDES Industrial Minor/No Standard Limits | $5,100 |
VPDES Industrial Minor/Standard Limits | $3,300 |
VPDES Industrial Stormwater | $3,600 |
VPDES Municipal Minor/Greater Than 100,000 GPD | $3,750 |
VPDES Municipal Minor/10,001 GPD - 100,000 GPD | $3,000 |
VPDES Municipal Minor/1,001 GPD - 10,000 GPD | $2,700 |
VPDES Municipal - modification relating to the authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge | $1,000* |
VPDES Municipal Minor/1,000 GPD or Less | $1,000 |
VPDES Municipal Minor Stormwater/MS4
| $1,000
|
*The fee for modification of a VPDES permit due to changes relating to authorization for land application, distribution, or marketing of biosolids or land disposal of sewage sludge shall be $1,000, notwithstanding other modification fees incurred. The modification fee shall apply for any addition of land application sites to a permit. |
2. Virginia Pollution Abatement (VPA) permits. The application fees listed in the table below apply to a major modification that occurs (and becomes effective) before the stated permit expiration date.
VPA Concentrated Animal Feeding Operation | (Reserved) |
VPA Intensified Animal Feeding Operation | (Reserved) |
VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $7,500 |
VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $5,250 |
VPA Industrial Sludge Operation | $3,7501 |
VPA Combined Sludge Operation - Industrial Sludges (excluding water treatment plant residuals) and Municipal Biosolids | $3,7501 |
VPA Municipal Wastewater Operation | $6,750 |
VPA Municipal Biosolids Operation | $1,0001, 2 |
All other operations not specified above | $375 |
1 The modification fee shall apply for any addition of land application sites to a permit. 2When adding any industrial source (excluding water treatment plant residuals) to a permit that only authorizes the land application of municipal biosolids, the modification fee for a VPA combined sludge operation shall apply. |
3. Virginia Water Protection (VWP) permits. (Note: Only one permit application fee shall be assessed per application; for a permit application involving more than one of the operations described below, the governing fee shall be based upon the primary purpose of the proposed activity.)
VWP Individual/Surface Water Impacts (Wetlands, Streams and/or Open Water) | $1,200 plus $110 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($30,000 maximum) |
VWP Individual/Minimum Instream Flow | $5,000 |
VWP Individual/Reservoir (Major or Minor) | $12,500 |
VWP Individual/Nonmetallic Mineral Mining | $1,200 plus $110 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 87,120 sq. ft. (two acres) ($3,750 maximum) |
4. Surface Water Withdrawal (SWW) permits or certificates issued in response to Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) |
Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) |
Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) |
Surface Water Withdrawal | $6,000 |
5. Groundwater Withdrawal (GWW) permits issued in response to Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.
Agricultural withdrawal not exceeding 150 million gallons in any single month | (Reserved) |
Agricultural withdrawal greater than 150 million gallons but less than 300 million gallons in any single month | (Reserved) |
Agricultural withdrawal of 300 million gallons or greater in any single month | (Reserved) |
Groundwater Withdrawal/Initial Permit for an Existing Withdrawal Based Solely on Historic Withdrawals | $600 |
Groundwater Withdrawal | $3,000 |
9VAC25-20-130. Fees for filing registration statements or applications for general permits issued by the board.
The following fees apply to filing of applications or registration statements for all general permits issued by the board, except:
1. The fee for filing a registration statement for coverage under 9VAC25-110 (General VPDES Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 GPD) is $0.
2. The fee for filing a registration statement for coverage under 9VAC25-120 (General VPDES Permit Regulation for Discharges From from Petroleum Contaminated Sites) is $0.
3. The fee for filing an application or registration statement for coverage under a VWP General Permit issued by the board shall be:
VWP General/Less Than 4,356 sq. ft. (1/10 acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $0 |
VWP General/4,356 sq. ft. to 21,780 sq. ft. (1/10 acre to 1/2 acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $600 |
VWP General/21,781 sq. ft. to 43,560 sq. ft. (greater than 1/2 acre to one acre) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $1,200 |
VWP General/43,561 sq. ft. to 87,120 sq. ft. (greater than one acre to two acres) of Surface Water Impact (Wetlands, Streams and/or Open Water) | $1,200 plus $120 for each 4,356 sq. ft. (1/10 acre) (or portion thereof) of incremental impact over 43,560 sq. ft. (one acre) ($2,400 maximum) |
VWP General/Minimum Instream Flow/Reservoir - Water withdrawals and/or pond construction | $2,400 |
4. VPDES Storm Water General Permits.a. Except as specified in subdivision 4 b of this section, the The fee for filing a registration statement for coverage under a VPDES storm water general general/industrial stormwater permit issued by the board shall be: $500.
VPDES General/Industrial Storm Water Management
| $500
|
VPDES General/Storm Water Management - Phase I Land Clearing (Large Construction Activity - Sites or common plans of development equal to or greater than 5 acres)
| $500
|
VPDES General/Storm Water Management - Phase II Land Clearing (Small Construction Activity - Sites or common plans of development less than 5 acres)
| $300
|
b. Owners of facilities that are covered under the Industrial Activity (VAR5) and Construction Site (VAR10) storm water general permits that expire on June 30, 2004, and who are reapplying for coverage under the new general permits that are effective on July 1, 2004, must submit an application fee of $600 to reapply.
5. Except as specified in subdivisions 1, 2, 3 and 4 of this section, the fee for filing an application or registration statement for coverage under any general permit issued by the board shall be $600.
9VAC25-20-142. Permit maintenance fees.
A. The following annual permit maintenance fees apply to each individual VPDES and VPA permit, including expired permits that have been administratively continued, except those exempted by 9VAC25-20-50 B or 9VAC25-20-60 A 4:
1. Base fee rate for Virginia Pollutant Discharge Elimination System (VPDES) permitted facilities. (Note: All flows listed in the table below are facility "design" flows.)
VPDES Industrial Major | $7,876 |
VPDES Municipal Major/Greater Than 10 MGD | $7,794 |
VPDES Municipal Major/2 MGD - 10 MGD | $7,138 |
VPDES Municipal Major/Less Than 2 MGD | $6,317 |
VPDES Municipal Major Stormwater/MS4
| $6,235
|
VPDES Industrial Minor/No Standard Limits | $3,347 |
VPDES Industrial Minor/Standard Limits | $1,969 |
VPDES Industrial Minor/Water Treatment System | $1,969 |
VPDES Industrial Stormwater | $2,363 |
VPDES Municipal Minor/Greater Than 100,000 GPD | $2,461 |
VPDES Municipal Minor/10,001 GPD - 100,000 GPD | $1,969 |
VPDES Municipal Minor/1,001 GPD - 10,000 GPD | $1,772 |
VPDES Municipal Minor/1,000 GPD or Less | $656 |
VPDES Municipal Minor Stormwater/MS4
| $656
|
2. Base fee rate for Virginia Pollution Abatement (VPA) permits.
VPA Industrial Wastewater Operation/Land Application of 10 or More Inches Per Year | $2,461 |
VPA Industrial Wastewater Operation/Land Application of Less Than 10 Inches Per Year | $1,723 |
VPA Industrial Sludge Operation | $1,231 |
VPA Combined Sludge Operation - Industrial Sludges (excluding water treatment plant residuals) and Municipal Biosolids | $1,231 |
VPA Municipal Wastewater Operation | $2,215 |
VPA Municipal Biosolids Operation | $100 |
VPA Concentrated Animal Feeding Operation | (Reserved) |
VPA Intensified Animal Feeding Operation | (Reserved) |
All other operations not specified above | $123 |
3. The amount of the annual permit maintenance fee due from the owner for VPDES and VPA permits for a specified year as required by 9VAC25-20-40 C shall be calculated according to the following formulae:
| F = | B x C |
| C = | 1 + ∆CPI |
| ∆CPI = | CPI - 215.15 |
215.15 |
Where:
F = the permit maintenance fee amount due for the specified calendar year, expressed in dollars.
B = the base fee rate for the type of VPDES or VPA permit from subdivision 1 or 2 of this subsection, expressed in dollars.
C = the Consumer Price Index adjustment factor.
∆CPI = the difference between CPI and 215.15 (the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30, 2009), expressed as a proportion of 215.15.
CPI = the average of the Consumer Price Index values for all-urban consumers for the 12-month period ending on April 30 of the calendar year before the specified year for which the permit maintenance fee is due. (The Consumer Price Index for all-urban consumers is published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All items, CUUR0000SA0).
For example, if calculating the 2010 permit maintenance fee (F) for a VPDES Industrial Major source:
CPI = 215.15 (the average of CPI values from May 1, 2008, to April 30, 2009, inclusive would be used for the 2010 permit maintenance fee calculation).
∆CPI = zero for the 2010 permit maintenance fee calculation (i.e., (CPI - 215.15)/215.15 = (215.15 - 215.15)/215.15 = 0). (Note: ∆CPI for other years would not be zero.)
C = 1.0 for the 2010 permit maintenance fee calculation (i.e., 1 + ∆CPI = 1 + 0 = 1.0).
B = $7,876 (i.e. the value for a VPDES Industrial Major source, taken from subdivision 1 of this subsection).
F = $7,876 for the 2010 permit maintenance fee calculation for this VPDES Industrial Major source (i.e., $7,876 x 1.0 = $7,876).
4. Permit maintenance fees (F) calculated for each facility shall be rounded to the nearest dollar.
5. The total amount of permit fees collected by the board (permit maintenance fees plus permit application fees) shall not exceed 50% of direct costs for administration, compliance, and enforcement of VPDES and VPA permits. The director shall take whatever action is necessary to ensure that this limit is not exceeded.
B. Additional permit maintenance fees.
1. An additional permit maintenance fee of $1,000 shall be paid annually by permittees in a toxics management program. Any facility that performs acute or chronic biological testing for compliance with a limit or special condition requiring monitoring in a VPDES permit is included in the toxics management program.
2. An additional permit maintenance fee of $1,000 shall be paid annually by permittees that have more than five process wastewater discharge outfalls at a single facility (not including "internal" outfalls).
3. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the total permit maintenance fees for all permits held as of April 1, 2004, shall not exceed $32,818 per year.
C. If the category of a facility (as described in subdivision A 1 or A 2 of this section) changes as the result of a permit modification, the permit maintenance fee based upon the permit category as of April 1 shall be submitted by October 1.
D. Annual permit maintenance fees may be discounted for participants in the Environmental Excellence Program as described in 9VAC25-20-145.
VA.R. Doc. No. R21-5834; Filed August 10, 2020, 3:17 p.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Final Regulation
REGISTRAR'S NOTICE: The
State Water Control 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) in accordance with § 2.2-4006 A 4
c of the Code of Virginia, which excludes regulations that are necessary to
meet the requirements of federal law or regulations, provided such regulations
do not differ materially from those required by federal law or regulation. The
State 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: 9VAC25-31. Virginia Pollutant
Discharge Elimination System (VPDES) Permit Regulation (amending 9VAC25-31-10, 9VAC25-31-25,
9VAC25-31-40, 9VAC25-31-100, 9VAC25-31-120, 9VAC25-31-130, 9VAC25-31-170,
9VAC25-31-190, 9VAC25-31-200, 9VAC25-31-220, 9VAC25-31-280, 9VAC25-31-380,
9VAC25-31-800).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123,
124, 403, and 503.
Effective Date: October 1, 2020.
Agency Contact: Elleanore Daub, Department of
Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4067, FAX (804) 698-4178, or email elleanore.daub@deq.virginia.gov.
Summary:
The amendments (i) incorporate the June 12, 2019, National
Pollutant Discharge and Elimination System (NPDES) Applications and Program
Updates rule that applies to 40 CFR 122.21 and 40 CFR 124, which
modernizes and clarifies permit applications by including items such as email
information and North American Industry Classification System (NAICS) codes;
(ii) conform throughout the regulation "storm water" (two words) to
"stormwater" (one word) to be consistent with the NPDES Multi-Sector
General Permit for Stormwater Discharges Associated with Industrial Activity;
(iii) make two definitions consistent with 40 CFR 122.26; (iv) update the 40
CFR reference being incorporated to July 1, 2019; (v) include a reference to Virginia
Environmental Laboratory Accredited Program requirements; (vi) update a
reference to wastewater works operator license regulations; and (vii) correct
citations throughout the regulation.
Part I
Definitions and General Program Requirements
9VAC25-31-10. Definitions.
"Act" means Federal Water Pollution Control Act,
also known as the Clean Water Act (CWA), as amended, 33 USC § 1251 et
seq.
"Administrator" means the Administrator of the
United States Environmental Protection Agency, or an authorized representative.
"Animal feeding operation" or "AFO" means
a lot or facility (other than an aquatic animal production facility) where the
following conditions are met: (i) animals (other than aquatic animals) have
been, are, or will be stabled or confined and fed or maintained for a total of
45 days or more in any 12-month period, and (ii) crops, vegetation forage
growth, or post-harvest residues are not sustained in the normal growing season
over any portion of the lot or facility.
"Applicable standards and limitations" means all
state, interstate, and federal standards and limitations to which a discharge,
a sewage sludge use or disposal practice, or a related activity is subject
under the CWA (33 USC § 1251 et seq.) and the law, including effluent limitations,
water quality standards, standards of performance, toxic effluent standards or
prohibitions, best management practices, pretreatment standards, 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 Director of the
Department of Environmental Quality.
"Approved POTW Pretreatment Program" or
"Program" or "POTW Pretreatment Program" means a program
administered by a POTW that meets the criteria established in Part VII
(9VAC25-31-730 et seq.) of this chapter and which has been approved by the
director or by the administrator in accordance with 9VAC25-31-830.
"Approved program" or "approved state"
means a state or interstate program which that has been approved
or authorized by EPA under 40 CFR Part 123.
"Aquaculture project" means a defined managed water
area which that uses discharges of pollutants into that
designated area for the maintenance or production of harvestable freshwater,
estuarine, or marine plants or animals.
"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 practices" or "BMPs"
means schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to implement the prohibitions listed
in 9VAC25-31-770 and to prevent or reduce the pollution of surface waters. BMPs
also include treatment requirements, operating procedures, and practices to
control plant site run-off, spillage or leaks, sludge or waste disposal, or
drainage from raw material storage.
"Biosolids" means a sewage sludge that has received
an established treatment and is managed in a manner to meet the required
pathogen control and vector attraction reduction, and contains concentrations
of regulated pollutants below the ceiling limits established in 40 CFR Part 503
and 9VAC25-31-540, such that it meets the standards established for use of
biosolids for land application, marketing, or distribution in accordance with
this chapter. Liquid biosolids contains less than 15% dry residue by weight.
Dewatered biosolids contains 15% or more dry residue by weight.
"Board" means the Virginia State Water Control
Board or State Water Control Board.
"Bypass" means the intentional diversion of waste
streams from any portion of a treatment facility.
"Class I sludge management facility" means any POTW
identified under Part VII (9VAC25-31-730 et seq.) of this chapter as being
required to have an approved pretreatment program and any other treatment works
treating domestic sewage classified as a Class I sludge management facility by
the regional administrator, in conjunction with the director, because of the
potential for its sludge use or disposal practices to adversely affect public
health and the environment.
"Concentrated animal feeding operation" or
"CAFO" means an AFO that is defined as a Large CAFO or as a Medium
CAFO, or that is designated as a Medium CAFO or a Small CAFO. Any AFO may be
designated as a CAFO by the director in accordance with the provisions of
9VAC25-31-130 B.
1. "Large CAFO." An AFO is defined as a Large CAFO
if it stables or confines as many or more than the numbers of animals specified
in any of the following categories:
a. 700 mature dairy cows, whether milked or dry;
b. 1,000 veal calves;
c. 1,000 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls and
cow/calf pairs;
d. 2,500 swine each weighing 55 pounds or more;
e. 10,000 swine each weighing less than 55 pounds;
f. 500 horses;
g. 10,000 sheep or lambs;
h. 55,000 turkeys;
i. 30,000 laying hens or broilers, if the AFO uses a liquid
manure handling system;
j. 125,000 chickens (other than laying hens), if the AFO uses
other than a liquid manure handling system;
k. 82,000 laying hens, if the AFO uses other than a liquid
manure handling system;
l. 30,000 ducks, if the AFO uses other than a liquid manure
handling system; or
m. 5,000 ducks if the AFO uses a liquid manure handling
system.
2. "Medium CAFO." The term Medium CAFO includes any
AFO with the type and number of animals that fall within any of the ranges
below that has been defined or designated as a CAFO. An AFO is defined as a
Medium CAFO if:
a. The type and number of animals that it stables or confines
falls within any of the following ranges:
(1) 200 to 699 mature dairy cattle, whether milked or dry;
(2) 300 to 999 veal calves;
(3) 300 to 999 cattle other than mature dairy cows or veal
calves. Cattle includes but is not limited to heifers, steers, bulls and
cow/calf pairs;
(4) 750 to 2,499 swine each weighing 55 pounds or more;
(5) 3,000 to 9,999 swine each weighing less than 55 pounds;
(6) 150 to 499 horses;
(7) 3,000 to 9,999 sheep or lambs;
(8) 16,500 to 29,999 laying hens or broilers, if the AFO uses
a liquid manure handling system;
(9) 37,500 to 124,999 chickens (other than laying hens), if
the AFO uses other than a liquid manure handling system;
(10) 25,000 to 81,999 laying hens, if the AFO uses other than
a liquid manure handling system;
(11) 10,000 to 29,999 ducks, if the AFO uses other than a
liquid manure handling system;
(12) 1,500 to 4,999 ducks, if the AFO uses a liquid manure
handling system; and
b. Either one of the following conditions are met:
(1) Pollutants are discharged into surface waters of the state
through a man-made ditch, flushing system, or other similar man-made device; or
(2) Pollutants are discharged directly into surface waters of
the state that originate outside of and pass over, across, or through the
facility or otherwise come into direct contact with the animals confined in the
operation.
3. "Small CAFO." An AFO that is designated as a CAFO
and is not a Medium CAFO.
"Concentrated aquatic animal production facility"
means a hatchery, fish farm, or other facility which that meets
the criteria of this definition, or which that the board
designates under 9VAC25-31-140. A hatchery, fish farm, or other facility is a
concentrated aquatic animal production facility if it contains, grows, or holds
aquatic animals in either of the following categories:
1. Cold water fish species or other cold water aquatic animals
in ponds, raceways, or other similar structures which discharge at least 30
days per year but does not include:
a. Facilities which produce less than 9,090 harvest weight
kilograms (approximately 20,000 pounds) of aquatic animals per year; and
b. Facilities which feed less than 2,272 kilograms
(approximately 5,000 pounds) of food during the calendar month of maximum
feeding; or
2. Warm water fish species or other warm water aquatic animals
in ponds, raceways, or other similar structures which discharge at least 30
days per year, but does not include:
a. Closed ponds which discharge only during periods of excess
run-off; or
b. Facilities which produce less than 45,454 harvest weight
kilograms (approximately 100,000 pounds) of aquatic animals per year.
Cold water aquatic animals include, but are not limited
to, the Salmonidae family of fish (e.g., trout and salmon).
Warm water aquatic animals include, but are not limited
to, the Ictaluridae, Centrarchidae and Cyprinidae families of fish (e.g.,
respectively, catfish, sunfish and minnows).
"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).
"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 authority" refers to the POTW if the
POTW's pretreatment program submission has been approved in accordance with the
requirements of 9VAC25-31-830 or the approval authority if the submission has
not been approved.
"Co-permittee" means a permittee to a VPDES permit
that is only responsible for permit conditions relating to the discharge for
which it is the operator.
"CWA" means the 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, Public Law
97-117, and Public Law 100-4.
"CWA and regulations" means the Clean Water Act
(CWA) and applicable 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" or "DEQ" means the
Virginia Department of Environmental Quality.
"Designated project area" means the portions of
surface within which the permittee or permit applicant plans to confine the
cultivated species, using a method or plan or operation (including, but not
limited to, physical confinement) which, on the basis of reliable
scientific evidence, is expected to ensure that specific individual organisms
comprising an aquaculture crop will enjoy increased growth attributable to the
discharge of pollutants and be harvested within a defined geographic area.
"Direct discharge" means the discharge of a
pollutant.
"Director" means the Director of the Department of
Environmental Quality or an authorized representative.
"Discharge," when used without qualification, means
the discharge of a pollutant.
"Discharge," when used in Part VII (9VAC25-31-730
et seq.) of this chapter, means "indirect discharge" as defined in
this section.
"Discharge of a
pollutant" means:
1. Any addition of any pollutant or combination of pollutants
to surface 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 run-off which that is collected or channeled
by man; discharges through pipes, sewers, or other conveyances owned by a
state, municipality, or other person which 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 permittee and approved by the board, for the reporting of self-monitoring
results by permittees.
"Draft permit" means a document indicating the
board's tentative decision to issue or deny, modify, revoke and reissue,
terminate, or reissue a permit. A notice of intent to terminate a permit, and a
notice of intent to deny a permit are types of draft permits. A denial of a
request for modification, revocation and reissuance, or termination is not a
draft permit. A proposed permit is not a draft permit.
"Effluent limitation" means any restriction imposed
by the board on quantities, discharge rates, and concentrations of pollutants which
that 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 source" means any source which that
is not a new source or a new discharger.
"Facilities or equipment" means buildings,
structures, process or production equipment or machinery which that
form a permanent part of a new source and which 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 VPDES 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 VPDES program.
"General permit" means a VPDES permit authorizing a
category of discharges under the CWA and the law within a geographical area.
"Hazardous substance" means any substance
designated under the Code of Virginia and 40 CFR Part 116 pursuant to § 311
of the CWA.
"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 discharge" means the introduction of
pollutants into a POTW from any nondomestic source regulated under § 307(b),
(c) or (d) of the CWA and the law.
"Indirect discharger" means a nondomestic
discharger introducing pollutants to a POTW.
"Individual control strategy" means a final VPDES
permit with supporting documentation showing that effluent limits are consistent
with an approved wasteload allocation or other documentation that shows that
applicable water quality standards will be met not later than three years after
the individual control strategy is established.
"Industrial residual" means solid or semisolid
industrial waste including solids, residues, and precipitates separated or
created by the unit processes of a device or system used to treat industrial
wastes.
"Industrial user" or "user" means a
source of indirect discharge.
"Industrial wastes" means liquid or other wastes
resulting from any process of industry, manufacture, trade, or business, or
from the development of any natural resources.
"Interference" means an indirect discharge which
that, alone or in conjunction with an indirect discharge or discharges
from other sources, both: (i) inhibits or disrupts the POTW, its treatment
processes or operations, or its sludge processes, use, or disposal; and
(ii) therefore is a cause of a violation of any requirement of the POTW's VPDES
permit (including an increase in the magnitude or duration of a violation) or
of the prevention of biosolids use or sewage sludge disposal in compliance with
the following statutory provisions and regulations or permits issued thereunder
(or more stringent state or local regulations): Section 405 of the Clean Water
Act, the Solid Waste Disposal Act (SWDA) (including Title II, more commonly
referred to as the Resource Conservation and Recovery Act (RCRA) (42 USC § 6901
et seq.), and including state regulations contained in any state sludge
management plan prepared pursuant to Subtitle D of the SWDA) the Clean Air Act
(42 USC § 701 et seq.), the Toxic Substances Control Act (15 USC § 2601 et
seq.), and the Marine Protection, Research and Sanctuaries Act (33 USC § 1401
et seq.).
"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.
"Land application" means, in regard to sewage,
biosolids, and industrial residuals, the distribution of treated wastewater of
acceptable quality, referred to as effluent, or stabilized sewage sludge of
acceptable quality, referred to as biosolids, or industrial residuals by
spreading or spraying on the surface of the land, injecting below the surface
of the land, or incorporating into the soil with a uniform application rate for
the purpose of fertilizing crops or vegetation or conditioning the soil. Sites
approved for land application of biosolids in accordance with this chapter are
not considered to be treatment works. Bulk disposal of stabilized sludge or
industrial residuals in a confined area, such as in landfills, is not land
application. For the purpose of this chapter, the use of biosolids in
agricultural research and the distribution and marketing of exceptional quality
biosolids are not land application.
"Land application area" means, in regard to an AFO,
land under the control of an AFO owner or operator that is owned, rented, or
leased to which manure, litter, or process wastewater from the production area
may be applied.
"Land application area" means, in regard to
biosolids, the area in the permitted field, excluding the setback area, where
biosolids may be applied.
"Local ordinance" means an ordinance adopted by
counties, cities, or towns in accordance with § 62.1-44.16 or 62.1-44.19:3 of
the Code of Virginia.
"Log sorting facilities" and "log storage
facilities" mean facilities whose discharges result from the holding of
unprocessed wood, for example, logs or roundwood with bark or after removal of
bark held in self-contained bodies of water (mill ponds or log ponds) or stored
on land where water is applied intentionally on the logs (wet decking).
"Major facility" means any VPDES facility or
activity classified as such by the regional administrator in conjunction with
the board.
"Malodor" means an unusually strong or offensive
odor associated with biosolids or sewage sludge as distinguished from odors
normally associated with biosolids or sewage sludge.
"Man-made" means constructed by man and used for
the purpose of transporting wastes.
"Manure" means manure, bedding, compost and raw
materials or other materials commingled with manure or set aside for disposal.
"Maximum daily discharge limitation" means the
highest allowable daily discharge.
"Municipal separate storm sewer" means a conveyance
or system of conveyances, including (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters, ditches,
man-made channels, or storm drains, drains): (i) owned or
operated by 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, storm water 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 of the state; (ii) designed or used for
collecting or conveying storm water stormwater; (iii) that is not
a combined sewer; and (iv) that is not part of a publicly owned treatment works
(POTW).
"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 permits, and
imposing and enforcing pretreatment requirements under §§ 307, 402, 318, and
405 of the CWA. The term includes an approved program.
"National pretreatment standard,"
"pretreatment standard," or "standard," when used in Part
VII (9VAC25-31-730 et seq.) of this chapter, means any regulation containing
pollutant discharge limits promulgated by the EPA in accordance with §
307(b) and (c) of the CWA, which applies to industrial users. This term
includes prohibitive discharge limits established pursuant to 9VAC25-31-770.
"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 That is not a new source; and
4. Which That has never received a finally
effective VPDES permit for discharges at that site.
This definition includes an indirect discharger which
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
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 source," except when used in Part VII
(9VAC25-31-730 et seq.) of this chapter, 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 which that are applicable to such source; or
2. After proposal of standards of performance in accordance
with § 306 of the CWA which 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.
"New source," when used in Part VII of this
chapter, means any building, structure, facility, or installation from which
there is or may be a discharge of pollutants, the construction of which
commenced after the publication of proposed pretreatment standards under §
307(c) of the CWA which that will be applicable to such source if
such standards are thereafter promulgated in accordance with that section,
provided that:
1. a. The building, structure, facility, or installation is
constructed at a site at which no other source is located;
b. The building, structure, facility, or installation totally
replaces the process or production equipment that causes the discharge of pollutants
at an existing source; or
c. The production of wastewater generating processes of the
building, structure, facility, or installation are substantially independent of
an existing source at the same site. In determining whether these are substantially
independent, factors such 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 should be considered.
2. Construction on a site at which an existing source is
located results in a modification rather than a new source if the construction
does not create a new building, structure, facility, or installation meeting
the criteria of subdivision 1 b or c of this definition but otherwise alters,
replaces, or adds to existing process or production equipment.
3. Construction of a new source as defined under this
subdivision 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
that 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 that are intended to be
used in its operation within a reasonable time. Options to purchase or
contracts which that can be terminated or modified without
substantial loss, and contracts for feasibility, engineering, and design
studies do not constitute a contractual obligation under this subdivision.
"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 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.
"Owner" or "operator" means the owner or
operator of any facility or activity subject to regulation under the VPDES
program.
"Pass through" means a discharge which that
exits the POTW into state waters in quantities or concentrations which that,
alone or in conjunction with a discharge or discharges from other sources, is a
cause of a violation of any requirement of the POTW's VPDES permit (including
an increase in the magnitude or duration of a violation).
"Permit" means an authorization, certificate,
license, or equivalent control document issued by the board to implement the
requirements of this chapter. Permit includes a VPDES general permit. Permit
does not include any permit which that has not yet been the
subject of final agency action, such as a draft permit or a proposed permit.
"Person" means an individual, corporation,
partnership, association, a governmental body, a municipal corporation, or any
other legal entity.
"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 storm water stormwater run-off.
"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.
"POTW treatment plant" means that portion of the
POTW which that is designed to provide treatment (including
recycling and reclamation) of municipal sewage and industrial waste.
"Pretreatment" means the reduction of the amount of
pollutants, the elimination of pollutants, or the alteration of the nature of
pollutant properties in wastewater prior to or in lieu of discharging or
otherwise introducing such pollutants into a POTW. The reduction or alteration
may be obtained by physical, chemical, or biological processes, process
changes or by other means, except as prohibited in Part VII of this chapter.
Appropriate pretreatment technology includes control equipment, such as
equalization tanks or facilities, for protection against surges or slug
loadings that might interfere with or otherwise be incompatible with the POTW.
However, where wastewater from a regulated process is mixed in an equalization
facility with unregulated wastewater or with wastewater from another regulated
process, the effluent from the equalization facility must meet an adjusted
pretreatment limit calculated in accordance with Part VII of this chapter.
"Pretreatment requirements" means any requirements
arising under Part VII (9VAC25-31-730 et seq.) of this chapter including the
duty to allow or carry out inspections, entry or monitoring activities; any
rules, regulations, or orders issued by the owner of a publicly owned treatment
works; or any reporting requirements imposed by the owner of a publicly owned
treatment works or by the regulations of the board. Pretreatment requirements
do not include the requirements of a national pretreatment standard.
"Primary industry category" means any industry
category listed in the NRDC settlement agreement (Natural Resources Defense
Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833
(D.D.C. 1979)); also listed in 40 CFR Part 122 Appendix A.
"Privately owned treatment works" or
"PVOTW" means any device or system which 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.
"Process wastewater" means any water which that,
during manufacturing or processing, comes into direct contact with or results
from the production or use of any raw material, intermediate product, finished
product, byproduct, or waste product. Process wastewater from an AFO means
water directly or indirectly used in the operation of the AFO for any of the
following: spillage or overflow from animal or poultry watering systems;
washing, cleaning, or flushing pens, barns, manure pits, or other AFO
facilities; direct contact swimming, washing, or spray cooling of the animals;
or dust control. Process wastewater from an AFO also includes any water that comes
into contact with any raw materials, products, or byproducts including manure,
litter, feed, milk, eggs, or bedding.
"Production area" means that part of an AFO that
includes the animal confinement area, the manure storage area, the raw
materials storage area, and the waste containment areas. The animal confinement
area includes but is not limited to open lots, housed lots, feedlots,
confinement houses, stall barns, free stall barns, milkrooms, milking centers,
cowyards, barnyards, medication pens, walkers, animal walkways, and stables.
The manure storage area includes but is not limited to lagoons, runoff
ponds, storage sheds, stockpiles, under house or pit storages, liquid
impoundments, static piles, and composting piles. The raw materials storage
areas includes but is not limited to include feed silos, silage
bunkers, and bedding materials. The waste containment area includes but is
not limited to settling basins, and areas within berms and diversions that
separate uncontaminated storm water stormwater. Also included in
the definition of production area is any egg washing or egg processing
facility, and any area used in the storage, handling, treatment, or disposal of
mortalities.
"Proposed permit" means a VPDES permit prepared
after the close of the public comment period (and, when applicable, any public
hearing and administrative appeals) which is sent to EPA for review before
final issuance. A proposed permit is not a draft permit.
"Publicly owned treatment works" or
"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.
"Recommencing discharger" means a source which
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.
"Rock crushing and gravel washing facilities" means
facilities which that process crushed and broken stone, gravel,
and riprap.
"Schedule of compliance" means a schedule of
remedial measures included in a permit, including an enforceable sequence of
interim requirements (for example, actions, operations, or milestone events)
leading to compliance with the law, the CWA and regulations.
"Secondary industry category" means any industry
category which that is not a primary industry category.
"Secretary" means the Secretary of the Army, acting
through the Chief of Engineers.
"Septage" means the liquid and solid material
pumped from a septic tank, cesspool, or similar domestic sewage treatment
system, or a holding tank when the system is cleaned or maintained.
"Setback area" means the area of land between the
boundary of the land application area and adjacent features where biosolids or
other managed pollutants may not be land applied.
"Severe property damage" means substantial physical
damage to property, damage to the treatment facilities which causes them to
become inoperable, or substantial and permanent loss of natural resources which
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.
"Sewage from vessels" means human body wastes and
the wastes from toilets and other receptacles intended to receive or retain
body wastes that are discharged from vessels and regulated under § 312 of CWA.
"Sewage sludge" means any solid, semisolid, or
liquid residue removed during the treatment of municipal wastewater or domestic
sewage. Sewage sludge includes, but is not limited to, solids removed
during primary, secondary, or advanced wastewater treatment, scum, domestic
septage, portable toilet pumpings, type III marine sanitation device pumpings,
and sewage sludge products. Sewage sludge does not include grit or screenings,
or ash generated during the incineration of sewage sludge.
"Sewage sludge use" or "disposal
practice" means the collection, storage, treatment, transportation,
processing, monitoring, use of biosolids, or disposal of sewage sludge.
"Significant industrial user" or "SIU"
means:
1. Except as provided in subdivisions 2 and 3 of this
definition:
a. All industrial users subject to categorical pretreatment
standards under 9VAC25-31-780 and incorporated by reference in 9VAC25-31-30;
and
b. Any other industrial user that: discharges an average of
25,000 gallons per day or more of process wastewater to the POTW (excluding
sanitary, noncontact cooling and boiler blowdown wastewater); contributes a
process wastestream which makes up 5.0% or more of the average dry weather
hydraulic or organic capacity of the POTW treatment plant; or is designated as such
by the control authority, on the basis that the industrial user has a
reasonable potential for adversely affecting the POTW's operation or for
violating any pretreatment standard or requirement.
2. The control authority may determine that an industrial user
subject to categorical pretreatment standards under 9VAC25-31-780 and 40 CFR chapter
Chapter I, subchapter Subchapter N is a nonsignificant
categorical industrial user rather than a significant industrial user on a
finding that the industrial user never discharges more than 100 gallons per day
(gpd) of total categorical wastewater (excluding sanitary, noncontact cooling
and boiler blowdown wastewater, unless specifically included in the
pretreatment standard) and the following conditions are met:
a. The industrial user, prior to control authority's finding,
has consistently complied with all applicable categorical pretreatment
standards and requirements;
b. The industrial user annually submits the certification
statement required in 9VAC25-31-840 together with any additional information
necessary to support the certification statement; and
c. The industrial user never discharges any untreated
concentrated wastewater.
3. Upon a finding that an industrial user meeting the criteria
in subdivision 1 b of this definition has no reasonable potential for adversely
affecting the POTW's operation or for violating any pretreatment standard or
requirement, the control authority may at any time, on its own initiative or in
response to a petition received from an industrial user or POTW, and in
accordance with Part VII (9VAC25-31-730 et seq.) of this chapter, determine
that such industrial user is not a significant industrial user.
"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 storm water stormwater discharges.
"Silvicultural point source" means any discernible,
confined and discrete conveyance related to rock crushing, gravel washing, log
sorting, or log storage facilities which that are operated in
connection with silvicultural activities and from which pollutants are
discharged into surface waters. The term does not include nonpoint source
silvicultural activities such as nursery operations, site preparation,
reforestation and subsequent cultural treatment, thinning, prescribed burning,
pest and fire control, harvesting operations, surface drainage, or road
construction and maintenance from which there is natural run-off. However, some
of these activities (such as stream crossing for roads) may involve point
source discharges of dredged or fill material which may require a CWA § 404
permit.
"Site" means the land or water area where any
facility or activity is physically located or conducted, including adjacent
land used in connection with the facility or activity.
"Sludge-only facility" means any treatment works
treating domestic sewage whose methods of biosolids use or sewage sludge
disposal are subject to regulations promulgated pursuant to the law and §
405(d) of the CWA, and is required to obtain a VPDES permit.
"Source" means any building, structure, facility,
or installation from which there is or may be a discharge of pollutants.
"Standards for biosolids use or sewage sludge
disposal" means the regulations promulgated pursuant to the law and § 405(d)
of the CWA which that govern minimum requirements for sludge
quality, management practices, and monitoring and reporting applicable to
sewage sludge or the use of biosolids or disposal of sewage sludge by any
person.
"State" means the Commonwealth of Virginia.
"State/EPA agreement" means an agreement between
the regional administrator and the state which coordinates EPA and state
activities, responsibilities and programs including those under the CWA and the
law.
"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.
"Storm water" means storm water "Stormwater"
means stormwater run-off, snow melt run-off, and surface run-off and
drainage.
"Storm water "Stormwater"
discharge associated with industrial activity" means the discharge from
any conveyance which that is used for collecting and conveying storm
water stormwater and which that is directly related to
manufacturing, processing, or raw materials storage areas at an
industrial plant. The term does not include discharges from facilities or
activities excluded from the VPDES program under 9VAC25-31. For the
categories of industries identified in this definition, the term includes,
but is not limited to, storm water stormwater discharges from
industrial plant yards; immediate access roads and rail lines used or traveled
by carriers of raw materials, manufactured products, waste material, or
byproducts used or created by the facility; material handling sites; refuse
sites; sites used for the application or disposal of process wastewaters; sites
used for the storage and maintenance of material handling equipment; sites used
for residual treatment, storage, or disposal; shipping and receiving areas;
manufacturing buildings; storage areas (including tank farms) for raw
materials, and intermediate and final products; and areas where industrial
activity has taken place in the past and significant materials remain and are
exposed to storm water stormwater. For the purposes of this
definition, material handling activities include the storage, loading and
unloading, transportation, or conveyance of any raw material, intermediate
product, final product, byproduct, or waste product. The term excludes areas
located on plant lands separate from the plant's industrial activities, such as
office buildings and accompanying parking lots lots, as long as
the drainage from the excluded areas is not mixed with storm water stormwater
drained from the above described areas. Industrial facilities (including
industrial facilities that are federally, state, or municipally owned or
operated that meet the description of the facilities listed in subdivisions 1
through 10 of this definition) include those facilities designated under the
provisions of 9VAC25-31-120 A 1 c or under 9VAC25-31-120 A 7 a (1) or (2) of
the VPDES Permit Regulation. The following categories of facilities are
considered to be engaging in industrial activity for purposes of this
subsection:
1. Facilities subject to storm water stormwater
effluent limitations guidelines, new source performance standards, or toxic
pollutant effluent standards under 40 CFR Subchapter N (except facilities with
toxic pollutant effluent standards that are exempted under category 10) 10
of this definition);
2. Facilities classified as Standard Industrial
Classifications (SIC) 24 (except 2434), 26 (except 265 and 267), 28
(except 283) 283 and 285), 29, 311, 32 (except 323), 33, 3441,
373 (Office of Management and Budget (OMB) SIC Manual, 1987);
3. Facilities classified as Standard Industrial
Classifications SIC 10 through 14 (mineral industry) (OMB SIC
Manual, 1987) including active or inactive mining operations (except for
areas of coal mining operations no longer meeting the definition of a
reclamation area under 40 CFR 434.11(l) because the performance bond issued to
the facility by the appropriate SMCRA Surface Mining Control and
Reclamation Act of 1977 (SMCRA) (30 USC § 1201 et seq.) authority has been
released, or except for areas of non-coal mining operations which that
have been released from applicable state or federal reclamation requirements
after December 17, 1990) and oil and gas exploration, production, processing,
or treatment operations, or transmission facilities that discharge storm
water stormwater contaminated by contact with or that has come into
contact with, any overburden, raw material, intermediate products, finished
products, byproducts, or waste products located on the site of such operations;
operations (inactive mining operations are mining sites that are not
being actively mined, but which have an identifiable owner/operator owner
or operator; inactive mining sites do not include sites where mining claims
are being maintained prior to disturbances associated with the extraction,
beneficiation, or processing of mined materials, nor sites where minimal
activities are undertaken for the sole purpose of maintaining a mining claim);
4. Hazardous waste treatment, storage, or disposal facilities,
including those that are operating under interim status or a permit under
Subtitle C of RCRA (42 USC § 6901 et seq.);
5. Landfills, land application sites, and open dumps that
receive or have received any industrial wastes (waste that is received from any
of the facilities described under this subsection) including those that are
subject to regulation under Subtitle D of RCRA (42 USC § 6901 et seq.);
6. Facilities involved in the recycling of materials,
including metal scrapyards, battery reclaimers, salvage yards, and automobile
junkyards, including but limited to those classified as Standard Industrial
Classification SIC 5015 and 5093;
7. Steam electric power generating facilities, including coal
handling sites;
8. Transportation facilities classified as Standard
Industrial Classifications SIC 40, 41, 42 (except 4221-25), 43, 44,
45, and 5171 which that have vehicle maintenance shops, equipment
cleaning operations, or airport deicing operations. Only those portions of the
facility that are either involved in vehicle maintenance (including vehicle rehabilitation,
mechanical repairs, painting, fueling, and lubrication), equipment cleaning
operations, airport deicing operations, or which that are
otherwise identified under subdivisions 1 through 7 or 9 and 10 of this
definition are associated with industrial activity;
9. Treatment works treating domestic sewage or any other
sewage sludge or wastewater treatment device or system, used in the storage
treatment, recycling, and reclamation of municipal or domestic sewage,
including land dedicated to the disposal of sewage sludge that are located
within the confines of the facility, with a design flow of 1.0 mgd or more, or
required to have an approved pretreatment program. Not included are farm lands,
domestic gardens, or lands used for sludge management where sludge is
beneficially reused and which are not physically located in the confines of the
facility, or areas that are in compliance with § 405 of the CWA; and
10. Facilities under Standard Industrial Classifications
SIC 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 30, 31 (except 311),
323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25.
"Submission" means: (i) a request by a POTW for
approval of a pretreatment program to the regional administrator or the
director; (ii) a request by POTW to the regional administrator or the director
for authority to revise the discharge limits in categorical pretreatment
standards to reflect POTW pollutant removals; or (iii) a request to the EPA by
the director for approval of the Virginia pretreatment program.
"Surface waters" means:
1. All waters which are currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce, including all
waters which 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. Which 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. Which 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 Clean Water Act, the final authority regarding
the Clean Water Act 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.
"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.
"Treatment facility" means only those mechanical
power driven devices necessary for the transmission and treatment of pollutants
(e.g., pump stations, unit treatment processes).
"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 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; and
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.
"Treatment works treating domestic sewage" means a
POTW or any other sewage sludge or wastewater treatment devices or systems,
regardless of ownership (including federal facilities), used in the storage,
treatment, recycling, and reclamation of municipal or domestic sewage, including
land dedicated for the disposal of sewage sludge. This definition does not
include septic tanks or similar devices. For purposes of this definition,
domestic sewage includes waste and wastewater from humans or household
operations that are discharged to or otherwise enter a treatment works.
"TWTDS" means treatment works treating domestic
sewage.
"Uncontrolled sanitary landfill" means a landfill
or open dump, whether in operation or closed, that does not meet the
requirements for run-on or run-off controls established pursuant to subtitle D
of the Solid Waste Disposal Act (42 USC § 6901 et seq.).
"Upset," except when used in Part VII
(9VAC25-31-730 et seq.) of this chapter, means an exceptional incident in which
there is unintentional and temporary noncompliance with technology based permit
effluent limitations because of factors beyond the reasonable control of the
permittee. 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, or in the applicable effluent
limitations guidelines which that allows modification to or
waiver of the generally applicable effluent limitation requirements or time
deadlines of the CWA. This includes provisions which 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.
"Vegetated buffer" means a permanent strip of dense
perennial vegetation established parallel to the contours of and perpendicular
to the dominant slope of the field for the purposes of slowing water runoff,
enhancing water infiltration, and minimizing the risk of any potential
nutrients or pollutants from leaving the field and reaching surface waters.
"Virginia Pollutant Discharge Elimination System
permit" or "VPDES permit" means a document issued by the board
pursuant to this chapter authorizing, under prescribed conditions, the
potential or actual discharge of pollutants from a point source to surface
waters and the use of biosolids or disposal of sewage sludge. Under the
approved state program, a VPDES permit is equivalent to an NPDES permit.
"VPDES 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 VPDES permit.
"Wastewater," when used in Part VII (9VAC25-31-730
et seq.) of this chapter, means liquid and water carried industrial wastes and
domestic sewage from residential dwellings, commercial buildings, industrial
and manufacturing facilities and institutions, whether treated or untreated, which
that are contributed to the POTW.
"Wastewater works operator" means any individual
employed or appointed by any owner, and who is designated by such owner to be
the person in responsible charge, such as a supervisor, a shift operator, or a
substitute in charge, and whose duties include testing or evaluation to control
wastewater works operations. Not included in this definition are
superintendents or directors of public works, city engineers, or other
municipal or industrial officials whose duties do not include the actual
operation or direct supervision of wastewater works.
"Water Management Division Director" means the
director of the Region III Water Management Division of the Environmental
Protection Agency or this person's delegated representative.
"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.
9VAC25-31-25. 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 and incorporated in this chapter that regulation shall be as it
exists and has been published in the July 1, 2017 2019, update. The
final rules published in the Federal Register on July 5, 2017 (82 FR 30997),
which corrects 40 CFR 441.30, and on August 28, 2017 (82 FR 40836), which
amends 40 CFR Part 136, are also incorporated by reference in this chapter.
9VAC25-31-40. Exclusions.
The following discharges do not require VPDES 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
which 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 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 (The National Oil and
Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution
by Oil and Hazardous Substances).
5. Any introduction of pollutants from nonpoint source
agricultural and silvicultural activities, including storm water stormwater
run-off 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 board may otherwise require.
Part II
Permit Applications and Special VPDES Permit Programs
9VAC25-31-100. Application for a permit.
A. Duty to apply. The following shall submit a complete
application to the department in accordance with this section. The requirements
for concentrated animal feeding operations are described in subdivisions C 1
and 2 of 9VAC25-31-130.
1. Any person who discharges or proposes to discharge
pollutants; and
2. Any person who owns or operates a sludge-only facility
whose biosolids use or sewage sludge disposal practice is regulated by
9VAC25-31-420 through 9VAC25-31-720 and who does not have an effective permit.
B. Exceptions. The following are not required to submit a
complete application to the department in accordance with this section unless
the board requires otherwise:
1. Persons covered by general permits;
2. Persons excluded from the requirement for a permit by this
chapter; or
3. A user of a privately owned treatment works.
C. Who applies.
1. The owner of the facility or operation.
2. 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 permit.
3. Notwithstanding the requirements of subdivision 2 of this
subsection, biosolids land application by the operator may be authorized by the
owner's permit.
D. Time to apply.
1. 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.
Facilities proposing a new discharge of storm water stormwater
associated with industrial activity shall submit an application 180 days before
that facility commences industrial activity which may result in a discharge of storm
water stormwater associated with that industrial activity. 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 180-day requirement
to avoid delay. New discharges composed entirely of storm water stormwater,
other than those dischargers identified in 9VAC25-31-120 A 1, shall apply for
and obtain a permit according to the application requirements in 9VAC25-31-120
B.
2. All TWTDS whose biosolids use or sewage sludge disposal
practices are regulated by 9VAC25-31-420 through 9VAC25-31-720 must submit
permit applications according to the applicable schedule in subdivision 2 a or
b of this subsection.
a. A TWTDS with a currently effective VPDES permit must submit
a permit application at the time of its next VPDES permit renewal application.
Such information must be submitted in accordance with subsection D of this
section.
b. Any other TWTDS not addressed under subdivision 2 a of this
subsection must submit the information listed in subdivisions 2 b (1) through
(5) of this subsection to the department within one year after publication of a
standard applicable to its biosolids use or sewage sludge disposal practice or
practices, using a form provided by the department. The board will determine
when such TWTDS must submit a full permit application.
(1) The TWTDS's name, mailing address, location, and status as
federal, state, private, public or other entity;
(2) The applicant's name, address, telephone number, electronic
mail address, and ownership status;
(3) A description of the biosolids use or sewage sludge
disposal practices. Unless the biosolids meets the requirements of subdivision
Q 9 d of this section, the description must include the name and address of any
facility where biosolids or sewage sludge is sent for treatment or disposal and
the location of any land application sites;
(4) Annual amount of sewage sludge generated, treated, used or
disposed (estimated dry weight basis); and
(5) The most recent data the TWTDS may have on the quality of
the biosolids or sewage sludge.
c. Notwithstanding subdivision 2 a or b of this subsection,
the board may require permit applications from any TWTDS at any time if the
board determines that a permit is necessary to protect public health and the
environment from any potential adverse effects that may occur from toxic
pollutants in sewage sludge.
d. Any TWTDS that commences operations after promulgation of
an applicable standard for biosolids use or sewage sludge disposal shall submit
an application to the department at least 180 days prior to the date proposed
for commencing operations.
E. Duty to reapply. All permittees with a currently effective
permit shall submit a new application at least 180 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 applications to
be submitted later than the expiration date of the existing permit.
F. Completeness.
1. The board shall not issue a permit before receiving a
complete application for a permit except for VPDES general permits. An
application for a 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 permit shall be judged independently
of the status of any other permit application or permit for the same facility
or activity.
2. No application for a VPDES permit to discharge sewage into
or adjacent to state waters from a privately owned treatment works serving, or
designed to serve, 50 or more residences shall be considered complete unless
the applicant has provided the department with notification from the State
Corporation Commission that the applicant is incorporated in the Commonwealth
and is in compliance with all regulations and relevant orders of the State
Corporation Commission.
3. No application for a new individual VPDES permit
authorizing a new discharge of sewage, industrial wastes, or other wastes shall
be considered complete unless it contains notification from the county, city,
or town in which the discharge is to take place that the location and operation
of the discharging facility are consistent with applicable ordinances adopted
pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of
Virginia. The county, city, or town shall inform in writing the
applicant and the board of the discharging facility's compliance or
noncompliance not more than 30 days from receipt by the chief administrative
officer, or his agent, of a request from the applicant. Should the county, city,
or town fail to provide such written notification within 30 days, the
requirement for such notification is waived. The provisions of this subsection
shall not apply to any discharge for which a valid VPDES permit had been issued
prior to March 10, 2000.
4. A permit application shall not be considered complete if
the board has waived application requirements under subsection J or P K
or Q of this section and the EPA has disapproved the waiver
application. If a waiver request has been submitted to the EPA more than
210 days prior to permit expiration and the EPA has not disapproved the
waiver application 181 days prior to permit expiration, the permit application lacking
the information subject to the waiver application shall be considered complete.
5. Except as specified in subdivision 5 a of this
subsection, a permit application shall not be considered complete unless all
required quantitative data are collected in accordance with sufficiently
sensitive analytical methods approved under 40 CFR Part 136 or required under
40 CFR Chapter I, Subchapter N (Effluent Guidelines and Standards) or O
(Sewage Sludge).
a. For the purposes of this requirement, a method approved
under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N or
O is "sufficiently sensitive" when:
(1) The method minimum level (ML) is at or below the level
of the applicable water quality criterion for the measured pollutant or
pollutant parameter;
(2) The method ML is above the applicable water quality
criterion, but the amount of the pollutant or pollutant parameter in a facility's
discharge is high enough that the method detects and quantifies the level of
the pollutant or pollutant parameter in the discharge; or
(3) The method has the lowest ML of the analytical methods
approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N
or O for the measured pollutant or pollutant parameter.
b. When there is no analytical method that has been
approved under 40 CFR 136, required under 40 CFR Chapter I, Subchapter N or O,
and is not otherwise required by the director, the applicant may use any
suitable method but shall provide a description of the method. When selecting a
suitable method, other factors such as a method's precision, accuracy, or
resolution, may be considered when assessing the performance of the method.
5. 6. In accordance with § 62.1-44.19:3 A of the
Code of Virginia, no application for a permit or variance to authorize the
storage of biosolids shall be complete unless it contains certification from
the governing body of the locality in which the biosolids is to be stored that
the storage site is consistent with all applicable ordinances. The governing
body shall confirm or deny consistency within 30 days of receiving a request
for certification. If the governing body does not so respond, the site shall be
deemed consistent.
6. 7. No application for a permit to land apply
biosolids in accordance with Part VI (9VAC25-31-420 et seq.) of this chapter
shall be complete unless it includes the written consent of the landowner to apply
biosolids on his property.
G. Information requirements. All applicants for VPDES
permits, other than POTWs and other TWTDS, shall provide the following
information to the department, using the application form provided by the
department (additional information required of applicants is set forth in
subsections H through L and Q through R of this section).
1. The activities conducted by the applicant which that
require it to obtain a VPDES permit;
2. Name, mailing address, and location of the facility for
which the application is submitted;
3. Up to four SIC and NAICS codes which that
best reflect the principal products or services provided by the facility;
4. The operator's name, address, telephone number, electronic
mail address, 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 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; and
i. 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,
depicting the facility and each of its intake and discharge structures; each of
its hazardous waste treatment, storage, or disposal facilities; each well where
fluids from the facility are injected underground; and those wells, springs,
other surface water bodies, and drinking water wells listed in public records
or otherwise known to the applicant in the map area; and
8. A brief description of the nature of the business;
9. An indication of whether the facility uses cooling water
and the source of the cooling water; and
10. An indication of whether the facility is requesting any
of the variances in subsection M of this section, if known at the time of
application.
H. Application requirements for existing manufacturing,
commercial, mining, and silvicultural dischargers. Existing manufacturing,
commercial mining, and silvicultural dischargers applying for VPDES permits,
except for those facilities subject to the requirements of subsection I of this
section, shall provide the following information to the department, using
application forms provided by the department.
1. The latitude and longitude of each outfall to the nearest
15 seconds and the name of the receiving water.
2. A line drawing of the water flow through the facility with
a water balance, showing operations contributing wastewater to the effluent and
treatment units. Similar processes, operations, or production areas may be
indicated as a single unit, labeled to correspond to the more detailed
identification under subdivision 3 of this subsection. The water balance must
show approximate average flows at intake and discharge points and between
units, including treatment units. If a water balance cannot be determined (for
example, for certain mining activities), the applicant may provide instead a
pictorial description of the nature and amount of any sources of water and any
collection and treatment measures.
3. A narrative identification of each type of process, operation,
or production area which that contributes wastewater to the
effluent for each outfall, including process wastewater, cooling water, and storm
water stormwater run-off; the average flow which each process
contributes; and a description of the treatment the wastewater receives,
including the ultimate disposal of any solid or fluid wastes other than by
discharge. Processes, operations, or production areas may be described in
general terms (for example, dye-making reactor, distillation tower). For a privately
owned treatment works, this information shall include the identity of each user
of the treatment works. The average flow of point sources composed of storm
water stormwater may be estimated. The basis for the rainfall event
and the method of estimation must be indicated.
4. If any of the discharges described in subdivision 3 of this
subsection are intermittent or seasonal, a description of the frequency,
duration and flow rate of each discharge occurrence (except for storm water
stormwater run-off, spillage or leaks).
5. If an effluent guideline promulgated under § 304 of the CWA
applies to the applicant and is expressed in terms of production (or other
measure of operation), a reasonable measure of the applicant's actual
production reported in the units used in the applicable effluent guideline. The
reported measure must reflect the actual production of the facility as
required by 9VAC25-31-230 B 2.
6. If the applicant is subject to any present requirements or
compliance schedules for construction, upgrading or operation of waste
treatment equipment, an identification of the abatement requirement, a
description of the abatement project, and a listing of the required and
projected final compliance dates.
7. Information on the discharge of pollutants specified in
this subdivision (except information on storm water stormwater
discharges which that is to be provided as specified in
9VAC25-31-120).
a. When quantitative data for a pollutant are required, the
applicant must collect a sample of effluent and analyze it for the pollutant in
accordance with analytical methods approved under 40 CFR Part 136 unless use
of another method is required under 40 CFR Subchapter N or O. When no
analytical method is approved, the applicant may use any suitable method but
must provide a description of the method. When an applicant has two or more
outfalls with substantially identical effluents, the board may allow the
applicant to test only one outfall and report that the quantitative data also
apply to the substantially identical outfalls. The requirements in subdivisions
7 e and f of this subsection that an 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. When
this subdivision requires analysis of pH, temperature, cyanide, total phenols,
residual chlorine, oil and grease, fecal coliform (including E. coli) and
Enterococci (previously known as fecal streptococcus at 40 CFR 122.26
(d)(2)(iii)(A)(3)), or volatile organics, grab samples must be collected for
those pollutants. For all other pollutants, a 24-hour composite samples
sample, using a minimum of four grab samples, must be used unless
specified otherwise at 40 CFR 136. 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 storm
water stormwater discharges, the board may waive composite sampling
for any outfall for which the 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. Results of
analyses of individual grab samples for any parameter may be averaged to obtain
the daily average. Grab samples that are not required to be analyzed
immediately (see Table II at 40 CFR 136.3 (e)) may be composited in the
laboratory, provided that container, preservation, and holding time
requirements are met (see Table II at 40 CFR 136.3(e)) and that sample
integrity is not compromised by compositing.
b. For storm water 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 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 storm water 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
(applicants submitting permit applications for storm water stormwater
discharges under 9VAC25-31-120 C may collect flow-weighted composite samples
using different protocols with respect to the time duration between the
collection of sample aliquots, subject to the approval of the board). However,
a minimum of one grab sample may be taken for storm water 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 storm water 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 9VAC25-31-120 B 1. For all storm water stormwater
permit applicants taking flow-weighted composites, quantitative data must be
reported for all pollutants specified in 9VAC25-31-120 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, and additional time for submitting data on a
case-by-case basis. An 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 storm water stormwater
run-off from the facility.)
c. Every applicant must report quantitative data for every
outfall for the following pollutants:
(1) Biochemical oxygen demand (BOD5);
(2) Chemical oxygen demand;
(3) Total organic carbon;
(4) Total suspended solids;
(5) Ammonia (as N);
(6) Temperature (both winter and summer); and
(7) 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 subdivision 7 c of this subsection if the applicant
has demonstrated that such a waiver is appropriate because information adequate
to support issuance of a permit can be obtained with less stringent
requirements.
e. Each applicant with processes in one or more primary
industry category (see 40 CFR Part 122 Appendix A) contributing to a discharge
must report quantitative data for the following pollutants in each outfall
containing process wastewater, except as indicated in subdivisions 7 c (3),
7 e (3), (4), and (5) of this subsection:
(1) The organic toxic pollutants in the fractions designated
in Table I of 40 CFR Part 122 Appendix D for the applicant's industrial
category or categories unless the applicant qualifies as a small business under
subdivision 8 of this subsection. Table II of 40 CFR Part 122 Appendix D lists
the organic toxic pollutants in each fraction. The fractions result from the
sample preparation required by the analytical procedure which uses gas
chromatography/mass spectrometry. A determination that an applicant falls
within a particular industrial category for the purposes of selecting fractions
for testing is not conclusive as to the applicant's inclusion in that category
for any other purposes.
(2) The pollutants listed in Table III of 40 CFR Part 122
Appendix D (the toxic metals, cyanide, and total phenols).
(3) Subdivision H 7 e (1) of this section and the
corresponding portions of the VPDES Application Form 2C are suspended as they
apply to coal mines.
(4) Subdivision H 7 e (1) of this section and the
corresponding portions of Item V-C of the VPDES Application Form 2C are
suspended as they apply to:
(a) Testing and reporting for all four organic fractions in
the Greige Mills Subcategory of the Textile Mills industry (subpart C-Low water
use processing of 40 CFR Part 410), and testing and reporting for the pesticide
fraction in all other subcategories of this industrial category.
(b) Testing and reporting for the volatile, base/neutral and
pesticide fractions in the Base and Precious Metals Subcategory of the Ore
Mining and Dressing industry (subpart B of 40 (40 CFR Part 440)
440, Subpart B) and testing and reporting for all four fractions
in all other subcategories of this industrial category.
(c) Testing and reporting for all four GC/MS fractions in the
Porcelain Enameling industry.
(5) Subdivision H 7 e (1) of this section and the
corresponding portions of Item V-C of the VPDES Application Form 2C are
suspended as they apply to:
(a) Testing and reporting for the pesticide fraction in the
Tall Oil Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory
(subpart F) of the Gum and Wood Chemicals industry (40 CFR Part 454), and
testing and reporting for the pesticide and base-neutral fractions in all other
subcategories of this industrial category.
(b) Testing and reporting for the pesticide fraction in the
leather tanning and finishing, paint and ink formulation, and photographic
supplies industrial categories.
(c) Testing and reporting for the acid, base/neutral, and
pesticide fractions in the petroleum refining industrial category.
(d) Testing and reporting for the pesticide fraction in the
Papergrade Sulfite Subcategories (subparts J and U) of the Pulp and Paper
industry (40 CFR Part 430); testing and reporting for the base/neutral and
pesticide fractions in the following subcategories: Deink (subpart Q),
Dissolving Kraft (subpart F), and Paperboard from Waste Paper (subpart E);
testing and reporting for the volatile, base/neutral, and pesticide fractions
in the following subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical
(subparts B and C), and Nonintegrated-Fine Papers (subpart R); and testing and
reporting for the acid, base/neutral, and pesticide fractions in the following
subcategories: Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp
(subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart
G), Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart
S).
(e) Testing and reporting for the base/neutral fraction in the
Once-Through Cooling Water, Fly Ash and Bottom Ash Transport Water process
waste streams of the Steam Electric Power Plant industrial category.
f. Each 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
(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 applicant must report quantitative data. For
every pollutant discharged which that is not so limited in an
effluent limitations guideline, the applicant must either report quantitative
data or briefly describe the reasons the pollutant is expected to be
discharged.
g. 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 (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 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 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 applicant must either submit quantitative data or briefly describe the
reasons the pollutant is expected to be discharged. An 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
(the organic toxic pollutants).
h. Each 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
(certain hazardous substances and asbestos) are discharged from each outfall.
For every pollutant expected to be discharged, the applicant must briefly
describe the reasons the pollutant is expected to be discharged, and report any
quantitative data it has for any pollutant.
i. Each 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.
j. Where quantitative data are required in subdivisions H 7
a through i of this section, existing data may be used, if available, in lieu
of sampling done solely for the purpose of the application, provided that all
data requirements are met; sampling was performed, collected, and analyzed no
more than four and one-half years prior to submission; all data are
representative of the discharge; and all available representative data are
considered in the values reported.
8. An applicant which qualifies as a small business under one
of the following criteria is exempt from the requirements in subdivision 7 e
(1) or 7 f of this subsection to submit quantitative data for the pollutants listed
in Table II of 40 CFR Part 122 Appendix D (the organic toxic pollutants):
a. For coal mines, a probable total annual production of less
than 100,000 tons per year; or
b. For all other applicants, gross total annual sales
averaging less than $100,000 per year (in second quarter 1980 dollars).
9. A listing of any toxic pollutant which that
the applicant currently uses or manufactures as an intermediate or final
product or byproduct. The board may waive or modify this requirement for any
applicant if the applicant demonstrates that it would be unduly burdensome to
identify each toxic pollutant and the board has adequate information to issue
the permit.
10. Reserved.
11. An identification of any biological toxicity tests which
that the applicant knows or has reason to believe have been made within
the last three years on any of the applicant's discharges or on a receiving
water in relation to a discharge.
12. If a contract laboratory or consulting firm performed any
of the analyses required by subdivision 7 of this subsection, the identity of
each laboratory or firm and the analyses performed.
13. In addition to the information reported on the application
form, applicants shall provide to the board, at its request, such other
information, including pertinent plans, specifications, maps and such other
relevant information as may be required, in scope and details satisfactory to
the board, as the board may reasonably require to assess the discharges of the
facility and to determine whether to issue a VPDES permit. The additional
information may include additional quantitative data and bioassays to assess
the relative toxicity of discharges to aquatic life and requirements to
determine the cause of the toxicity.
I. Application requirements for manufacturing, commercial,
mining and silvicultural facilities which discharge only nonprocess wastewater.
Except for storm water stormwater discharges, all manufacturing,
commercial, mining, and silvicultural dischargers applying for VPDES
permits which that discharge only nonprocess wastewater not
regulated by an effluent limitations guideline or new source performance
standard shall provide the following information to the department using
application forms provided by the department:
1. Outfall number, latitude and longitude to the nearest 15
seconds, and the name of the receiving water;
2. Date of expected commencement of discharge;
3. An identification of the general type of waste discharged,
or expected to be discharged upon commencement of operations, including
sanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water.
An identification of cooling water additives (if any) that are used or expected
to be used upon commencement of operations, along with their composition if
existing composition is available;
4. a. Quantitative data for the pollutants or parameters
listed below, unless testing is waived by the board. The quantitative data may
be data collected over the past 365 days, if they remain representative of
current operations, and must include maximum daily value, average daily value,
and number of measurements taken. The applicant must collect and analyze
samples in accordance with 40 CFR Part 136. Grab samples must be used
for pH, temperature, oil and grease, total residual chlorine, and fecal
coliform. For all other pollutants, 24-hour composite samples must be used.
When analysis of pH, temperature, residual chlorine, oil and grease, or
fecal coliform (including E. coli), and Enterococci (previously known as fecal
streptococcus) and volatile organics is required in subdivisions I 4 a (1)
through (11) of this section, grab samples must be collected for those
pollutants. For all other pollutants, a 24-hour composite sample, using a
minimum of four grab samples, must be used unless specified otherwise at 40 CFR
Part 136. For a composite sample, only one analysis of the composite of
aliquots is required. New dischargers must include estimates for the
pollutants or parameters listed below instead of actual sampling data, along
with the source of each estimate. All levels must be reported or estimated as
concentration and as total mass, except for flow, pH, and temperature.
(1) Biochemical oxygen demand (BOD5).
(2) Total suspended solids (TSS).
(3) Fecal coliform (if believed present or if sanitary waste
is or will be discharged).
(4) Total residual chlorine (if chlorine is used).
(5) Oil and grease.
(6) Chemical oxygen demand (COD) (if noncontact cooling water
is or will be discharged).
(7) Total organic carbon (TOC) (if noncontact cooling water is
or will be discharged).
(8) Ammonia (as N).
(9) Discharge flow.
(10) pH.
(11) Temperature (winter and summer).
b. The board may waive the testing and reporting requirements
for any of the pollutants or flow listed in subdivision 4 a of this subsection
if the applicant submits a request for such a waiver before or with his
application which that demonstrates that information adequate to
support issuance of a permit can be obtained through less stringent
requirements.
c. If the applicant is a new discharger, he must submit the
information required in subdivision 4 a of this subsection by providing
quantitative data in accordance with that section no later than two years after
commencement of discharge. However, the applicant need not submit testing
results which that he has already performed and reported under
the discharge monitoring requirements of his VPDES permit.
d. The requirements of subdivisions 4 a and 4 c of this
subsection that an applicant must provide quantitative data or estimates of
certain pollutants do not apply to pollutants present in a discharge solely as
a result of their presence in intake water. However, an applicant must report
such pollutants as present. Net credit may be provided for the presence of
pollutants in intake water if the requirements of 9VAC25-31-230 G are met;
5. A description of the frequency of flow and duration of any
seasonal or intermittent discharge (except for storm water stormwater
run-off, leaks, or spills);
6. A brief description of any treatment system used or to be
used;
7. Any additional information the applicant wishes to be
considered, such as influent data for the purpose of obtaining net credits
pursuant to 9VAC25-31-230 G;
8. Signature of certifying official under 9VAC25-31-110; and
9. Pertinent plans, specifications, maps and such other
relevant information as may be required, in scope and details satisfactory to
the board.
J. Application requirements for new and existing concentrated
animal feeding operations and aquatic animal production facilities. New and
existing concentrated animal feeding operations and concentrated aquatic animal
production facilities shall provide the following information to the
department, using the application form provided by the department:
1. For concentrated animal feeding operations:
a. The name of the owner or operator;
b. The facility location and mailing address;
c. Latitude and longitude of the production area (entrance to
the production area);
d. A topographic map of the geographic area in which the CAFO
is located showing the specific location of the production area, in lieu of the
requirements of subdivision G 7 of this section;
e. Specific information about the number and type of animals, whether
in open confinement or housed under roof (beef cattle, broilers, layers, swine
weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy
cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys,
other);
f. The type of containment and storage (anaerobic lagoon,
roofed storage shed, storage ponds, underfloor pits, above ground storage
tanks, below ground storage tanks, concrete pad, impervious soil pad, other)
and total capacity for manure, litter, and process wastewater storage
(tons/gallons);
g. The total number of acres under control of the applicant
available for land application of manure, litter, or process wastewater;
h. Estimated amounts of manure, litter, and process wastewater
generated per year (tons/gallons); and
i. For CAFOs required to seek coverage under a permit after
December 31, 2009, a nutrient management plan that at a minimum satisfies the
requirements specified in subsection E of 9VAC25-31-200 and subdivision C 5 of
9VAC25-31-130, including, for all CAFOs subject to 40 CFR Part 412 Subpart
C or Subpart D, the requirements of 40 CFR 412.4(c), as applicable.
2. For concentrated aquatic animal production facilities:
a. The maximum daily and average monthly flow from each
outfall;
b. The number of ponds, raceways, and similar structures;
c. The name of the receiving water and the source of intake
water;
d. For each species of aquatic animals, the total yearly and
maximum harvestable weight;
e. The calendar month of maximum feeding and the total mass of
food fed during that month; and
f. Pertinent plans, specifications, maps and such other
relevant information as may be required, in scope and details satisfactory to
the board.
K. Application requirements for new and existing POTWs and
treatment works treating domestic sewage. Unless otherwise indicated, all POTWs
and other dischargers designated by the board must provide to the department,
at a minimum, the information in this subsection using an application form
provided by the department. Permit applicants must submit all information
available at the time of permit application. The information may be provided by
referencing information previously submitted to the department. The board may waive
any requirement of this subsection if it has access to substantially identical
information. The board may also waive any requirement of this subsection that
is not of material concern for a specific permit, if approved by the regional
administrator. The waiver request to the regional administrator must include
the board's justification for the waiver. A regional administrator's
disapproval of the board's proposed waiver does not constitute final agency
action but does provide notice to the board and permit applicant(s) applicant
that the EPA may object to any board-issued permit issued in the absence
of the required information.
1. All applicants must provide the following information:
a. Name, mailing address, and location of the facility for
which the application is submitted;
b. Name, mailing address, and telephone number, and
electronic mail address of the applicant and indication as to whether the
applicant is the facility's owner, operator, or both;
c. Identification of all environmental permits or construction
approvals received or applied for (including dates) under any of the following
programs:
(1) Hazardous Waste Management program under the Resource
Conservation and Recovery Act (RCRA), Subpart C;
(2) Underground Injection Control program under the Safe
Drinking Water Act (SDWA);
(3) NPDES program under the Clean Water Act (CWA);
(4) Prevention of Significant Deterioration (PSD) program
under the Clean Air Act;
(5) Nonattainment program under the Clean Air Act;
(6) National Emission Standards for Hazardous Air Pollutants
(NESHAPS) preconstruction approval under the Clean Air Act;
(7) Ocean dumping permits under the Marine Protection Research
and Sanctuaries Act;
(8) Dredge or fill permits under § 404 of the CWA; and
(9) Other relevant environmental permits, including state
permits;
d. The name and population of each municipal entity served by
the facility, including unincorporated connector districts. Indicate whether
each municipal entity owns or maintains the collection system and whether the
collection system is separate sanitary or combined storm and sanitary, if
known;
e. Information concerning whether the facility is located in
Indian country and whether the facility discharges to a receiving stream that
flows through Indian country;
f. The facility's design flow rate (the wastewater flow rate
the plant was built to handle), annual average daily flow rate, and maximum
daily flow rate for each of the previous three years;
g. Identification of type(s) types of collection
system(s) systems used by the treatment works (i.e., separate
sanitary sewers or combined storm and sanitary sewers) and an estimate of the
percent of sewer line that each type comprises; and
h. The following information for outfalls to surface waters
and other discharge or disposal methods:
(1) For effluent discharges to surface waters, the total
number and types of outfalls (e.g., treated effluent, combined sewer overflows,
bypasses, constructed emergency overflows);
(2) For wastewater discharged to surface impoundments:
(a) The location of each surface impoundment;
(b) The average daily volume discharged to each surface
impoundment; and
(c) Whether the discharge is continuous or intermittent;
(3) For wastewater applied to the land:
(a) The location of each land application site;
(b) The size of each land application site, in acres;
(c) The average daily volume applied to each land application
site, in gallons per day; and
(d) Whether land application is continuous or intermittent;
(4) For effluent sent to another facility for treatment prior
to discharge:
(a) The means by which the effluent is transported;
(b) The name, mailing address, contact person, and
phone number, and electronic mail address of the organization
transporting the discharge, if the transport is provided by a party other than
the applicant;
(c) The name, mailing address, contact person, phone number, electronic
mail address, and VPDES permit number (if any) of the receiving facility;
and
(d) The average daily flow rate from this facility into the
receiving facility, in millions of gallons per day; and
(5) For wastewater disposed of in a manner not included in
subdivisions 1 h (1) through (4) of this subsection (e.g., underground
percolation, underground injection):
(a) A description of the disposal method, including the
location and size of each disposal site, if applicable;
(b) The annual average daily volume disposed of by this
method, in gallons per day; and
(c) Whether disposal through this method is continuous or
intermittent; and
i. An indication of whether applicant is operating under or
requesting to operate under a variance as specified in subsection N of this
section, if known at the time of application.
2. All applicants with a design flow greater than or equal to
0.1 mgd must provide the following information:
a. The current average daily volume of inflow and
infiltration, in gallons per day, and steps the facility is taking to minimize
inflow and infiltration;
b. A topographic map (or other map if a topographic map is
unavailable) extending at least one mile beyond property boundaries of the
treatment plant, including all unit processes, and showing:
(1) Treatment plant area and unit processes;
(2) The major pipes or other structures through which
wastewater enters the treatment plant and the pipes or other structures through
which treated wastewater is discharged from the treatment plant. Include
outfalls from bypass piping, if applicable;
(3) Each well where fluids from the treatment plant are
injected underground;
(4) Wells, springs, and other surface water bodies listed in
public records or otherwise known to the applicant within 1/4 mile of the
treatment works' property boundaries;
(5) Sewage sludge management facilities (including on-site
treatment, storage, and disposal sites); and
(6) Location at which waste classified as hazardous under RCRA
enters the treatment plant by truck, rail, or dedicated pipe;
c. Process flow diagram or schematic:
(1) A diagram showing the processes of the treatment plant,
including all bypass piping and all backup power sources or redundancy in the
system. This includes a water balance showing all treatment units, including
disinfection, and showing daily average flow rates at influent and discharge
points, and approximate daily flow rates between treatment units; and
(2) A narrative description of the diagram; and
d. The following information regarding scheduled improvements:
(1) The outfall number of each outfall affected;
(2) A narrative description of each required improvement;
(3) Scheduled or actual dates of completion for the following:
(a) Commencement of construction;
(b) Completion of construction;
(c) Commencement of discharge; and
(d) Attainment of operational level; and
(4) A description of permits and clearances concerning other
federal or state requirements.
3. Each applicant must provide the following information for
each outfall, including bypass points, through which effluent is discharged, as
applicable:
a. The following information about each outfall:
(1) Outfall number;
(2) State, county, and city or town in which outfall is
located;
(3) Latitude and longitude, to the nearest second;
(4) Distance from shore and depth below surface;
(5) Average daily flow rate, in million gallons per day;
(6) The following information for each outfall with a seasonal
or periodic discharge:
(a) Number of times per year the discharge occurs;
(b) Duration of each discharge;
(c) Flow of each discharge; and
(d) Months in which discharge occurs; and
(7) Whether the outfall is equipped with a diffuser and the
type (e.g., high-rate) of diffuser used.
b. The following information, if known, for each outfall
through which effluent is discharged to surface waters:
(1) Name of receiving water;
(2) Name of watershed/river/stream system and United States
Soil Conservation Service 14-digit watershed code;
(3) Name of State Management/River Basin and United States
Geological Survey 8-digit hydrologic cataloging unit code; and
(4) Critical flow of receiving stream and total hardness of
receiving stream at critical low flow (if applicable).
c. The following information describing the treatment provided
for discharges from each outfall to surface waters:
(1) The highest level of treatment (e.g., primary, equivalent
to secondary, secondary, advanced, other) that is provided for the discharge
for each outfall and:
(a) Design biochemical oxygen demand (BOD5 or CBOD5)
removal (percent);
(b) Design suspended solids (SS) removal (percent); and, where
applicable;
(c) Design phosphorus (P) removal (percent);
(d) Design nitrogen (N) removal (percent); and
(e) Any other removals that an advanced treatment system is
designed to achieve.
(2) A description of the type of disinfection used, and
whether the treatment plant dechlorinates (if disinfection is accomplished
through chlorination).
4. Effluent monitoring for specific parameters.
a. As provided in subdivisions 4 b through 4 k of this subsection,
all applicants must submit to the department effluent monitoring information
for samples taken from each outfall through which effluent is discharged to
surface waters, except for CSOs. The board may allow applicants to submit
sampling data for only one outfall on a case-by-case basis, where the applicant
has two or more outfalls with substantially identical effluent. The board may
also allow applicants to composite samples from one or more outfalls that
discharge into the same mixing zone. For POTWs applying prior to
commencement of discharge, data shall be submitted no later than 24 months
after the commencement of discharge;
b. All applicants must sample and analyze for the following
pollutants:
(1) Biochemical oxygen demand (BOD5 or CBOD5);
(2) Fecal coliform;
(3) Design flow rate;
(4) pH;
(5) Temperature; and
(6) Total suspended solids.
c. All applicants with a design flow greater than or equal to
0.1 mgd must sample and analyze for the following pollutants:
(1) Ammonia (as N);
(2) Chlorine (total residual, TRC);
(3) Dissolved oxygen;
(4) Nitrate/Nitrite;
(5) Kjeldahl nitrogen;
(6) Oil and grease;
(7) Phosphorus; and
(8) Total dissolved solids.
d. Facilities that do not use chlorine for disinfection, do
not use chlorine elsewhere in the treatment process, and have no reasonable
potential to discharge chlorine in their effluent may delete chlorine.
e. All POTWs with a design flow rate equal to or greater than
one million gallons per day, all POTWs with approved pretreatment programs or
POTWs required to develop a pretreatment program, and other POTWs, as required
by the board must sample and analyze for the pollutants listed in Table 2 of 40
CFR Part 122 Appendix J, and for any other pollutants for which the board or
EPA have established water quality standards applicable to the receiving
waters.
f. The board may require sampling for additional pollutants,
as appropriate, on a case-by-case basis.
g. Applicants must provide data from a minimum of three
samples taken within 4-1/2 years prior to the date of the permit application.
Samples must be representative of the seasonal variation in the discharge from
each outfall. Existing data may be used, if available, in lieu of sampling done
solely for the purpose of this application. The board may require additional
samples, as appropriate, on a case-by-case basis.
h. All existing data for pollutants specified in subdivisions
4 b through 4 f of this subsection that is collected within 4-1/2 years of the
application must be included in the pollutant data summary submitted by the
applicant. If, however, the applicant samples for a specific pollutant on a
monthly or more frequent basis, it is only necessary, for such pollutant, to
summarize all data collected within one year of the application.
i. Applicants must collect samples of effluent and analyze
such samples for pollutants in accordance with analytical methods approved
under 40 CFR Part 136 unless an alternative is specified in the existing VPDES
permit. Grab samples must be used for When analysis of pH,
temperature, cyanide, total phenols, residual chlorine, oil and grease, and
fecal coliform (including E. coli), or volatile organics is required in
subdivisions K 4 b, c, and e of this section, grab samples must be collected
for those pollutants. For all other pollutants, 24-hour composite samples
must be used. For a composite sample, only one analysis of the composite of
aliquots is required.
j. The effluent monitoring data provided must include at least
the following information for each parameter:
(1) Maximum daily discharge, expressed as concentration or
mass, based upon actual sample values;
(2) Average daily discharge for all samples, expressed as
concentration or mass, and the number of samples used to obtain this value;
(3) The analytical method used; and
(4) The threshold level (i.e., method detection limit, minimum
level, or other designated method endpoints) for the analytical method used.
k. Unless otherwise required by the board, metals must be
reported as total recoverable.
5. Effluent monitoring for
whole effluent toxicity.
a. All applicants must provide an identification of any whole
effluent toxicity tests conducted during the 4-1/2 years prior to the date of
the application on any of the applicant's discharges or on any receiving water
near the discharge. For POTWs applying prior to commencement of discharge,
data shall be submitted no later than 24 months after the commencement of
discharge.
b. As provided in subdivisions 5 c through i of this
subsection, the following applicants must submit to the department the results
of valid whole effluent toxicity tests for acute or chronic toxicity for
samples taken from each outfall through which effluent is discharged to surface
waters, except for combined sewer overflows:
(1) All POTWs with design flow rates greater than or equal to
one million gallons per day;
(2) All POTWs with approved pretreatment programs or POTWs
required to develop a pretreatment program;
(3) Other POTWs, as required by the board, based on
consideration of the following factors:
(a) The variability of the pollutants or pollutant parameters
in the POTW effluent (based on chemical-specific information, the type of
treatment plant, and types of industrial contributors);
(b) The ratio of effluent flow to receiving stream flow;
(c) Existing controls on point or nonpoint sources, including
total maximum daily load calculations for the receiving stream segment and the
relative contribution of the POTW;
(d) Receiving stream characteristics, including possible or
known water quality impairment, and whether the POTW discharges to a coastal
water, or a water designated as an outstanding natural resource water; or
(e) Other considerations (including, but not limited to,
the history of toxic impacts and compliance problems at the POTW) that the
board determines could cause or contribute to adverse water quality impacts.
c. Where the POTW has two or more outfalls with substantially
identical effluent discharging to the same receiving stream segment, the board
may allow applicants to submit whole effluent toxicity data for only one outfall
on a case-by-case basis. The board may also allow applicants to composite
samples from one or more outfalls that discharge into the same mixing zone.
d. Each applicant required to perform whole effluent toxicity
testing pursuant to subdivision 5 b of this subsection must provide:
(1) Results of a minimum of four quarterly tests for a year,
from the year preceding the permit application; or
(2) Results from four tests performed at least annually in the
4-1/2 year period prior to the application, provided the results show no
appreciable toxicity using a safety factor determined by the board.
e. Applicants must conduct tests with multiple species (no
less than two species, e.g., fish, invertebrate, plant) and test for acute or
chronic toxicity, depending on the range of receiving water dilution. The board
recommends that applicants conduct acute or chronic testing based on the
following dilutions: (i) acute toxicity testing if the dilution of the effluent
is greater than 100:1 at the edge of the mixing zone or (ii) chronic toxicity
testing if the dilution of the effluent is less than or equal to 100:1 at the
edge of the mixing zone.
f. Each applicant required to perform whole effluent toxicity
testing pursuant to subdivision 5 b of this subsection must provide the number
of chronic or acute whole effluent toxicity tests that have been conducted
since the last permit reissuance.
g. Applicants must provide the results using the form provided
by the department, or test summaries if available and comprehensive, for each
whole effluent toxicity test conducted pursuant to subdivision 5 b of this
subsection for which such information has not been reported previously to the
department.
h. Whole effluent toxicity testing conducted pursuant to
subdivision 5 b of this subsection must be conducted using methods approved
under 40 CFR Part 136, as directed by the board.
i. For whole effluent toxicity data submitted to the
department within 4-1/2 years prior to the date of the application, applicants
must provide the dates on which the data were submitted and a summary of the
results.
j. Each POTW required to perform whole effluent toxicity
testing pursuant to subdivision 5 b of this subsection must provide any
information on the cause of toxicity and written details of any toxicity
reduction evaluation conducted, if any whole effluent toxicity test conducted
within the past 4-1/2 years revealed toxicity.
6. Applicants must submit the following information about
industrial discharges to the POTW:
a. Number of significant industrial users (SIUs) and nonsignificant
categorical industrial users (CIUs) discharging to the POTW (NSCIUs),
including SIUs and NSCIUs that truck or haul waste, discharging to the POTW;
and
b. POTWs with one or more SIUs shall provide the following
information for each SIU, as defined in 9VAC25-31-10, that discharges to the
POTW:
(1) Name and mailing address;
(2) Description of all industrial processes that affect or
contribute to the SIU's discharge;
(3) Principal products and raw materials of the SIU that
affect or contribute to the SIU's discharge;
(4) Average daily volume of wastewater discharged, indicating
the amount attributable to process flow and nonprocess flow;
(5) Whether the SIU is subject to local limits;
(6) Whether the SIU is subject to categorical standards and,
if so, under which category and subcategory; and
(7) Whether any problems at the POTW (e.g., upsets, pass
through, interference) have been attributed to the SIU in the past 4-1/2 years.
c. The information required in subdivisions 6 a and b of this
subsection may be waived by the board for POTWs with pretreatment programs if
the applicant has submitted either of the following that contain information
substantially identical to that required in subdivisions 6 a and b of this
subsection:
(1) An annual report submitted within one year of the
application; or
(2) A pretreatment program.
7. Discharges from hazardous waste generators and from waste
cleanup or remediation sites. POTWs receiving Resource Conservation and
Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes generated at
another type of cleanup or remediation site must provide the following
information:
a. If the POTW receives, or has been notified that it will
receive, by truck, rail, or dedicated pipe any wastes that are regulated as
RCRA hazardous wastes pursuant to 40 CFR Part 261, the applicant must report
the following:
(1) The method by which the waste is received (i.e., whether
by truck, rail, or dedicated pipe); and
(2) The hazardous waste number and amount received annually of
each hazardous waste.
b. If the POTW receives, or has been notified that it will
receive, wastewaters that originate from remedial activities, including those
undertaken pursuant to CERCLA and § 3004(u) or 3008(h) of RCRA, the
applicant must report the following:
(1) The identity and description of the site or facility at
which the wastewater originates;
(2) The identities of the wastewater's hazardous constituents,
as listed in Appendix VIII of 40 CFR Part 261, if known; and
(3) The extent of treatment, if any, the wastewater receives
or will receive before entering the POTW.
c. Applicants are exempt from the requirements of subdivision
7 b of this subsection if they receive no more than 15 kilograms per month of
hazardous wastes, unless the wastes are acute hazardous wastes as specified in
40 CFR 261.30(d) and 261.33(e).
8. Each applicant with combined sewer systems must provide the
following information:
a. The following information regarding the combined sewer
system:
(1) A map indicating the location of the following:
(a) All CSO discharge points;
(b) Sensitive use areas potentially affected by CSOs (e.g.,
beaches, drinking water supplies, shellfish beds, sensitive aquatic ecosystems,
and outstanding national resource waters); and
(c) Waters supporting threatened and endangered species
potentially affected by CSOs; and
(2) A diagram of the combined sewer collection system that
includes the following information:
(a) The location of major sewer trunk lines, both combined and
separate sanitary;
(b) The locations of points where separate sanitary sewers
feed into the combined sewer system;
(c) In-line and off-line storage structures;
(d) The locations of flow-regulating devices; and
(e) The locations of pump stations.
b. The following information for each CSO discharge point
covered by the permit application:
(1) The following information on each outfall:
(a) Outfall number;
(b) State, county, and city or town in which outfall is
located;
(c) Latitude and longitude, to the nearest second;
(d) Distance from shore and depth below surface;
(e) Whether the applicant monitored any of the following in
the past year for this CSO: (i) rainfall, (ii) CSO flow volume, (iii) CSO
pollutant concentrations, (iv) receiving water quality, or (v) CSO frequency;
and
(f) The number of storm events monitored in the past year;
(2) The following information about CSO overflows from each
outfall:
(a) The number of events in the past year;
(b) The average duration per event, if available;
(c) The average volume per CSO event, if available; and
(d) The minimum rainfall that caused a CSO event, if
available, in the last year;
(3) The following information about receiving waters:
(a) Name of receiving water;
(b) Name of watershed/stream system and the United States Soil
Conservation Service watershed (14-digit) code, if known; and
(c) Name of State Management/River Basin and the United States
Geological Survey hydrologic cataloging unit (8-digit) code, if known; and
(4) A description of any known water quality impacts on the
receiving water caused by the CSO (e.g., permanent or intermittent beach
closings, permanent or intermittent shellfish bed closings, fish kills, fish
advisories, other recreational loss, or exceedance of any applicable state
water quality standard).
9. All applicants must provide the name, mailing address,
telephone number, electronic mail address, and responsibilities of all
contractors responsible for any operational or maintenance aspects of the
facility.
10. All applications must be signed by a certifying official
in compliance with 9VAC25-31-110.
11. Pertinent plans, specifications, maps and such other
relevant information as may be required, in scope and details satisfactory to
the board.
L. Application requirements for new sources and new
discharges. New manufacturing, commercial, mining and silvicultural dischargers
applying for VPDES permits (except for new discharges of facilities subject to
the requirements of subsection H I of this section or new
discharges of storm water stormwater associated with industrial
activity which that are subject to the requirements of
9VAC25-31-120 B 1 and this subsection) shall provide the following information
to the department, using the application forms provided by the department:
1. The expected outfall location in latitude and longitude to
the nearest 15 seconds and the name of the receiving water;
2. The expected date of commencement of discharge;
3. a. Description of the treatment that the wastewater will
receive, along with all operations contributing wastewater to the effluent,
average flow contributed by each operation, and the ultimate disposal of any
solid or liquid wastes not discharged;
b. A line drawing of the water flow through the facility with
a water balance as described in subdivision H 2;
c. If any of the expected discharges will be intermittent or
seasonal, a description of the frequency, duration and maximum daily flow rate
of each discharge occurrence (except for storm water stormwater
run-off, spillage, or leaks);
4. If a new source performance standard promulgated under § 306
of the CWA or an effluent limitation guideline applies to the applicant and is
expressed in terms of production (or other measure of operation), a reasonable
measure of the applicant's expected actual production reported in the units
used in the applicable effluent guideline or new source performance standard
for each of the first three years. Alternative estimates may also be submitted
if production is likely to vary;
5. The requirements in subdivisions H subdivisions I
4 a, b, and c of this section that an applicant must provide estimates of
certain pollutants expected to be present do not apply to pollutants present in
a discharge solely as a result of their presence in intake water; however, an
applicant must report such pollutants as present. Net credits may be provided
for the presence of pollutants in intake water if the requirements of
9VAC25-31-230 G are met. All levels (except for discharge flow, temperature,
and pH) must be estimated as concentration and as total mass.
a. Each applicant must report estimated daily maximum, daily
average, and source of information for each outfall for the following
pollutants or parameters. The board may waive the reporting requirements for
any of these pollutants and parameters if the applicant submits a request for
such a waiver before or with his application which demonstrates that
information adequate to support issuance of the permit can be obtained through
less stringent reporting requirements:
(1) Biochemical oxygen demand (BOD).
(2) Chemical oxygen demand (COD).
(3) Total organic carbon (TOC).
(4) Total suspended solids (TSS).
(5) Flow.
(6) Ammonia (as N).
(7) Temperature (winter and summer).
(8) pH.
b. Each applicant must report estimated daily maximum, daily
average, and source of information for each outfall for the following
pollutants, if the applicant knows or has reason to believe they will be
present or if they are limited by an effluent limitation guideline or new
source performance standard either directly or indirectly through limitations
on an indicator pollutant: all pollutants in Table IV of 40 CFR Part 122
Appendix D (certain conventional and nonconventional pollutants).
c. Each applicant must report estimated daily maximum, daily
average and source of information for the following pollutants if he knows or
has reason to believe that they will be present in the discharges from any
outfall:
(1) The pollutants listed in Table III of 40 CFR Part 122
Appendix D (the toxic metals, in the discharge from any outfall, Total cyanide,
and total phenols);
(2) The organic toxic pollutants in Table II of 40 CFR Part
122 Appendix D (except bis (chloromethyl) ether, dichlorofluoromethane and
trichlorofluoromethane). This requirement is waived for applicants with
expected gross sales of less than $100,000 per year for the next three years,
and for coal mines with expected average production of less than 100,000 tons
of coal per year.
d. The applicant is required to report that 2,3,7,8
Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he uses or manufactures
one of the following compounds, or if he knows or has reason to believe that
TCDD will or may be present in an effluent:
(1) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS
#93-76-5);
(2) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex,
2,4,5-TP) (CAS #93-72-1);
(3) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate
(Erbon) (CAS #136-25-4);
(4) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate
(Ronnel) (CAS #299-84-3);
(5) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or
(6) Hexachlorophene (HCP) (CAS #70-30-4);
e. Each applicant must report any pollutants listed in Table V
of 40 CFR Part 122 Appendix D (certain hazardous substances) if he believes
they will be present in any outfall (no quantitative estimates are required
unless they are already available).
f. No later than two years 24 months after the
commencement of discharge from the proposed facility, the applicant is required
to submit the information required in subsection G H of this
section. However, the applicant need not complete those portions of subsection G
H of this section requiring tests which he has that have
already been performed and reported under the discharge monitoring
requirements of his the VPDES permit;
6. Each applicant must report the existence of any technical
evaluation concerning his wastewater treatment, along with the name and
location of similar plants of which he has knowledge;
7. Any optional information the permittee wishes to have
considered;
8. Signature of certifying official under 9VAC25-31-110; and
9. Pertinent plans, specifications, maps, and such
other relevant information as may be required, in scope and details
satisfactory to the board.
M. Variance requests by non-POTWs. 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 permit; or
(2) For a request from best available technology economically
achievable (BAT) and/or or best conventional pollutant control
technology (BCT), by no later than:
(a) July 3, 1989, for a request based on an effluent
limitation guideline promulgated before February 4, 1987, to the extent July 3,
1989, is not later than that provided under previously promulgated regulations;
or
(b) 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 which 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 permit number, the outfall number(s) number, 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 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 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 Division Director 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 permit on the 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 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 permit. A copy of the request shall be sent simultaneously to the
department.
N. Variance requests by POTWs. A discharger which is a
publicly owned treatment works (POTW) may request a variance from otherwise
applicable effluent limitations under any of the following statutory provisions
as specified in this paragraph:
1. A request for a modification under § 301(h) of the CWA of
requirements of § 301(b)(1)(B) of the CWA for discharges into marine
waters must be filed in accordance with the requirements of 40 CFR Part 125,
Subpart G.
2. A modification under § 302(b)(2) of the CWA of the
requirements under § 302(a) of the CWA for achieving water quality based
effluent limitations shall be requested no later than the close of the public comment
period for the draft permit on the permit from which the modification is
sought.
O. Expedited variance procedures and time extensions.
1. Notwithstanding the time requirements in subsections M and
N of this section, the board may notify a permit applicant before a draft
permit is issued that the draft permit will likely contain limitations which
are eligible for variances. In the notice the board may require the applicant
as a condition of consideration of any potential variance request to submit a
request explaining how the requirements of 40 CFR Part 125 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
permit application has been submitted. The draft or final permit may contain
the alternative limitations which that may become effective upon
final grant of the variance.
2. A discharger who cannot file a timely complete request
required under subdivisions M 2 a (2) or M 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.
P. Recordkeeping. Except for information required by
subdivision D 2 of this section, which shall be retained for a period of at
least five years from the date the application is signed (or longer as required
by Part VI (9VAC25-31-420 et seq.) of this chapter), applicants shall keep
records of all data used to complete 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.
Q. Sewage sludge management. All TWTDS subject to subdivision
D 2 a of this section must provide the information in this subsection to the
department using an application form approved by the department. New applicants
must submit all information available at the time of permit application. The
information may be provided by referencing information previously submitted to
the department. The board may waive any requirement of this subsection if it
has access to substantially identical information. The board may also waive any
requirement of this subsection that is not of material concern for a specific
permit, if approved by the regional administrator. The waiver request to the
regional administrator must include the board's justification for the waiver. A
regional administrator's disapproval of the board's proposed waiver does not
constitute final agency action, but does provide notice to the board and the
permit applicant that the EPA may object to any board issued permit
issued in the absence of the required information.
1. All applicants must submit the following information:
a. The name, mailing address, and location of the TWTDS for
which the application is submitted;
b. Whether the facility is a Class I Sludge Management
Facility;
c. The design flow rate (in million gallons per day);
d. The total population served;
e. The TWTDS's status as federal, state, private, public, or
other entity;
f. The name, mailing address, and telephone number,
and electronic mail address of the applicant; and
g. Indication whether the applicant is the owner, operator, or
both.
2. All applicants must submit the facility's VPDES permit
number, if applicable, and a listing of all other federal, state, and local
permits or construction approvals received or applied for under any of the
following programs:
a. Hazardous Waste Management program under the Resource
Conservation and Recovery Act (RCRA);
b. UIC program under the Safe Drinking Water Act (SDWA);
c. NPDES program under the Clean Water Act (CWA);
d. Prevention of Significant Deterioration (PSD) program under
the Clean Air Act;
e. Nonattainment program under the Clean Air Act;
f. National Emission Standards for Hazardous Air Pollutants
(NESHAPS) preconstruction approval under the Clean Air Act;
g. Dredge or fill permits under § 404 of the CWA;
h. Other relevant environmental permits, including state or
local permits.
3. All applicants must identify any generation, treatment,
storage, land application of biosolids, or disposal of sewage sludge that
occurs in Indian country.
4. All applicants must submit a topographic map (or other map
if a topographic map is unavailable) extending one mile beyond property
boundaries of the facility and showing the following information:
a. All sewage sludge management facilities, including on-site
treatment, storage, and disposal sites; and
b. Wells, springs, and other surface water bodies that are
within 1/4 mile of the property boundaries and listed in public records or
otherwise known to the applicant.
5. All applicants must submit a line drawing and/or or
a narrative description that identifies all sewage sludge management practices
employed during the term of the permit, including all units used for
collecting, dewatering, storing, or treating sewage sludge; the destination(s)
destination of all liquids and solids leaving each such unit; and all
processes used for pathogen reduction and vector attraction reduction.
6. All applicants must submit an odor control plan that
contains at minimum:
a. Methods used to minimize odor in producing biosolids;
b. Methods used to identify malodorous biosolids before land
application (at the generating facility);
c. Methods used to identify and abate malodorous biosolids
that have been delivered to the field, prior to land application; and
d. Methods used to abate malodor from biosolids if land
applied.
7. The applicant must submit biosolids monitoring data for the
pollutants for which limits in biosolids have been established in Part VI
(9VAC25-31-420 et seq.) of this chapter for the applicant's use or disposal
practices on the date of permit application with the following conditions:
a. When applying for authorization to land apply a biosolids
source not previously included in a VPDES or Virginia Pollution Abatement
Permit, the biosolids shall be sampled and analyzed for PCBs. The sample
results shall be submitted with the permit application or request to add the
source.
b. The board may require sampling for additional pollutants,
as appropriate, on a case-by-case basis.
c. Applicants must provide data from a minimum of three
samples taken within 4-1/2 years prior to the date of the permit application.
Samples must be representative of the biosolids and should be taken at least
one month apart. Existing data may be used in lieu of sampling done solely for
the purpose of this application.
d. Applicants must collect and analyze samples in accordance
with analytical methods specified in 9VAC25-31-490, 40 CFR Part 503 (March 26,
2007), and 40 CFR Part 136 (March 26, 2007).
e. The monitoring data provided must include at least the
following information for each parameter:
(1) Average monthly concentration for all samples (mg/kg dry
weight), based upon actual sample values;
(2) The analytical method used; and
(3) The method detection level.
8. If the applicant is a person who prepares biosolids or
sewage sludge, as defined in 9VAC25-31-500, the applicant must provide the
following information:
a. If the applicant's facility generates biosolids or sewage
sludge, the total dry metric tons per 365-day period generated at the facility.
b. If the applicant's facility receives biosolids or sewage
sludge from another facility, the following information for each facility from
which biosolids or sewage sludge is received:
(1) The name, mailing address, and location of the other
facility;
(2) The total dry metric tons per 365-day period received from
the other facility; and
(3) A description of any treatment processes occurring at the
other facility, including blending activities and treatment to reduce pathogens
or vector attraction characteristics.
c. If the applicant's facility changes the quality of
biosolids or sewage sludge through blending, treatment, or other activities,
the following information:
(1) Whether the Class A pathogen reduction requirements in
9VAC25-31-710 A or the Class B pathogen reduction requirements in 9VAC25-31-710
B are met, and a description of any treatment processes used to reduce
pathogens in sewage sludge;
(2) Whether any of the vector attraction reduction options of
9VAC25-31-720 B 1 through 8 are met, and a description of any treatment
processes used to reduce vector attraction properties in sewage sludge; and
(3) A description of any other blending, treatment, or other
activities that change the quality of sewage sludge.
d. If biosolids from the applicant's facility meets the ceiling
concentrations in 9VAC25-31-540 B Table 1, the pollutant concentrations in
9VAC25-31-540 B Table 3, the Class A pathogen requirements in 9VAC25-31-710 A,
and one of the vector attraction reduction requirements in 9VAC25-31-720 B 1
through 8, and if the biosolids is applied to the land, the applicant must
provide the total dry metric tons per 365-day period of sewage sludge subject
to this subsection that is applied to the land.
e. If biosolids from the applicant's facility is sold or given
away in a bag or other container for application to the land, and the biosolids
is not subject to subdivision 8 d of this subsection, the applicant must
provide the following information:
(1) The total dry metric tons per 365-day period of biosolids
subject to this subsection that is sold or given away in a bag or other
container for application to the land; and
(2) A copy of all labels or notices that accompany the
biosolids being sold or given away.
f. If biosolids or sewage sludge from the applicant's facility
is provided to another person who prepares biosolids, as defined in
9VAC25-31-500, and the biosolids is not subject to subdivision 8 d of this
subsection, the applicant must provide the following information for each
facility receiving the biosolids or sewage sludge:
(1) The name and, mailing address, and
electronic mail address of the receiving facility;
(2) The total dry metric tons per 365-day period of biosolids
or sewage sludge subject to this subsection that the applicant provides to the
receiving facility;
(3) A description of any treatment processes occurring at the
receiving facility, including blending activities and treatment to reduce
pathogens or vector attraction characteristic;
(4) A copy of the notice and necessary information that the applicant
is required to provide the receiving facility under 9VAC25-31-530 G; and
(5) If the receiving facility places biosolids in bags or
containers for sale or give-away for application to the land, a copy of any
labels or notices that accompany the biosolids.
9. If biosolids from the applicant's facility is applied to
the land in bulk form and is not subject to subdivision 8 d, e, or f of this
subsection, the applicant must provide the following information:
a. Written permission of landowners on the most current form
approved by the board.
b. The total dry metric tons per 365-day period of biosolids
subject to this subsection that is applied to the land.
c. If any land application sites are located in states other
than the state where the biosolids is prepared, a description of how the
applicant will notify the permitting authority for the state(s) state
where the land application sites are located.
d. The following information for each land application site
that has been identified at the time of permit application:
(1) The DEQ control number, if previously assigned,
identifying the land application field or site. If a DEQ control number has not
been assigned, provide the site identification code used by the permit
applicant to report activities and the site's location;
(2) The site's latitude and longitude in decimal degrees to
three decimal places and method of determination;
(3) A legible topographic map and aerial photograph, including
legend, of proposed application areas to scale as needed to depict the
following features:
(a) Property boundaries;
(b) Surface water courses;
(c) Water supply wells and springs;
(d) Roadways;
(e) Rock outcrops;
(f) Slopes;
(g) Frequently flooded areas (National Resources Conservation
Service (NRCS) designation);
(h) Occupied dwellings within 400 feet of the property
boundaries and all existing extended dwelling and property line setback
distances;
(i) Publicly accessible properties and occupied buildings
within 400 feet of the property boundaries and the associated extended setback
distances; and
(j) The gross acreage of the fields where biosolids will be
applied;
(4) County map or other map of sufficient detail to show
general location of the site and proposed transport vehicle haul routes to be
utilized from the treatment plant;
(5) County tax maps labeled with Tax Parcel ID or IDs for each
farm to be included in the permit, which may include multiple fields, to depict
properties within 400 feet of the field boundaries;
(6) A USDA soil survey map, if available, of proposed sites
for land application of biosolids;
(7) The name, mailing address, and telephone number,
and electronic mail address of each site owner, if different from the
applicant;
(8) The name, mailing address, and telephone number,
and electronic mail address of the person who applies biosolids to the
site, if different from the applicant;
(9) Whether the site is agricultural land, forest, a public
contact site, or a reclamation site, as such site types are defined in
9VAC25-31-500;
(10) Description of agricultural practices including a list of
proposed crops to be grown;
(11) Whether either of the vector attraction reduction options
of 9VAC25-31-720 B 9 or 10 is met at the site, and a description of any
procedures employed at the time of use to reduce vector attraction properties
in biosolids;
(12) Pertinent calculations justifying storage and land area
requirements for biosolids application including an annual biosolids balance
incorporating such factors as precipitation, evapotranspiration, soil
percolation rates, wastewater loading, and monthly storage (input and drawdown);
and
(13) Other information that describes how the site will be
managed, as specified by the board.
e. The following information for each land application site
that has been identified at the time of permit application, if the applicant
intends to apply bulk biosolids subject to the cumulative pollutant loading
rates in 9VAC25-31-540 B Table 2 to the site:
(1) Whether the applicant has contacted the permitting
authority in the state where the bulk biosolids subject to 9VAC25-31-540 B
Table 2 will be applied, to ascertain whether bulk biosolids subject to
9VAC25-31-540 B Table 2 has been applied to the site on or since July 20, 1993,
and if so, the name of the permitting authority and the name and,
phone number, and electronic mail address, if available, of a contact
person at the permitting authority; and
(2) Identification of facilities other than the applicant's
facility that have sent, or are sending, biosolids subject to the cumulative
pollutant loading rates in 9VAC25-31-540 B Table 2 to the site since July 20,
1993, if, based on the inquiry in subdivision 9 e (1) of this subsection, bulk
biosolids subject to cumulative pollutant loading rates in 9VAC25-31-540 B
Table 2 has been applied to the site since July 20, 1993.
10. Biosolids storage facilities not located at the site of
the wastewater treatment plant. Plans and specifications for biosolids storage
facilities not located at the site of the wastewater treatment plant generating
the biosolids, including routine and on-site storage, shall be submitted for
issuance of a certificate to construct and a certificate to operate in
accordance with the Sewage Collection and Treatment Regulations (9VAC25-790)
and shall depict the following information:
a. Site layout on a recent 7.5 minute topographic quadrangle
or other appropriate scaled map;
b. Location of any required soil, geologic, and hydrologic
test holes or borings;
c. Location of the following field features within 0.25 miles
of the site boundary (indicate on map) with the approximate distances from the
site boundary:
(1) Water wells (operating or abandoned);
(2) Surface waters;
(3) Springs;
(4) Public water supplies;
(5) Sinkholes;
(6) Underground and surface mines;
(7) Mine pool (or other) surface water discharge points;
(8) Mining spoil piles and mine dumps;
(9) Quarries;
(10) Sand and gravel pits;
(11) Gas and oil wells;
(12) Diversion ditches;
(13) Occupied dwellings, including industrial and commercial
establishments;
(14) Landfills and dumps;
(15) Other unlined impoundments;
(16) Septic tanks and drainfields; and
(17) Injection wells;
d. Topographic map (10-foot contour preferred) of sufficient
detail to clearly show the following information:
(1) Maximum and minimum percent slopes;
(2) Depressions on the site that may collect water;
(3) Drainage ways that may attribute to rainfall run-on to or
run-off from this site; and
(4) Portions of the site, if any, that are located within the
100-year floodplain;
e. Data and specifications for the liner proposed for seepage
control;
f. Scaled plan view and cross-sectional view of the facilities
showing inside and outside slopes of all embankments and details of all
appurtenances;
g. Calculations justifying impoundment capacity; and
h. Groundwater monitoring plans for the facilities if required
by the department. The groundwater monitoring plan shall include pertinent
geohydrological data to justify upgradient and downgradient well location and
depth.
11. Staging. Generic plans are required for staging of
biosolids.
12. A biosolids management plan shall be provided that
includes the following minimum site specific information at the time of permit
application:
a. A comprehensive, general description of the operation shall
be provided, including biosolids source or sources, quantities, flow diagram
illustrating treatment works biosolids flows and solids handling units, site
description, methodology of biosolids handling for application periods,
including storage and nonapplication period storage, and alternative management
methods when storage is not provided.
b. A nutrient management plan approved by the Department of
Conservation and Recreation as required for application sites prior to board
authorization under the following conditions:
(1) Sites operated by an owner or lessee of a confined animal
feeding operation, as defined in subsection A of § 62.1-44.17:1 of the
Code of Virginia, or confined poultry feeding operation, as defined in
subsection A of § 62.1-44.17:1.1 of the Code of Virginia;
(2) Sites where land application is proposed more frequently
than once every three years at greater than 50% of the annual agronomic rate;
(3) Mined or disturbed land sites where land application is
proposed at greater than agronomic rates; or
(4) Other sites based on site-specific conditions that
increase the risk that land application may adversely impact state waters.
13. Biosolids transport.
a. General description of transport vehicles to be used;
b. Procedures for biosolids offloading at the biosolids
facilities and the land application site together with spill prevention,
cleanup (including vehicle cleaning), field reclamation, and emergency spill
notification and cleanup measures; and
c. Voucher system used for documentation and recordkeeping.
14. Field operations.
a. Storage.
(1) Routine storage at facilities not located at the site of
the wastewater treatment plant – supernatant handling and disposal, biosolids
handling, and loading of transport vehicles, equipment cleaning, freeboard
maintenance, and inspections for structural integrity;
(2) On-site storage – procedures for department/board approval
and implementation;
(3) Staging – procedures to be followed including either
designated site locations provided in the "Design Information" or the
specific site criteria for such locations including the liner/cover
requirements and the time limit assigned to such use; and
(4) Field reestablishment of offloading (staging) areas.
b. Application methodology.
(1) Description and specifications on spreader vehicles;
(2) Procedures for calibrating equipment for various biosolids
contents to ensure uniform distribution and appropriate loading rates on a
day-to-day basis; and
(3) Procedures used to ensure that operations address the
following constraints: application of biosolids to frozen ground, pasture/hay
fields, crops for direct human consumption and saturated or ice-covered or
snow-covered ground; establishment of setback distances, slopes, prohibited
access for beef and dairy animals, and soil pH requirements; and proper site
specific biosolids loading rates on a field-by-field basis.
15. An applicant for a permit authorizing the land application
of biosolids shall provide to the department, and to each locality in which the
applicant proposes to land apply biosolids, written evidence of financial
responsibility. Evidence of financial responsibility shall be provided in
accordance with requirements specified in Article 6 (9VAC25-32-770 et seq.) of
Part IX (9VAC25-32-303 et seq.) of the Virginia Pollution Abatement (VPA)
Permit Regulation.
16. If sewage sludge from the applicant's facility is placed
on a surface disposal site, the applicant must provide the following
information:
a. The total dry metric tons of sewage sludge from the
applicant's facility that is placed on surface disposal sites per 365-day
period.
b. The following information for each surface disposal site
receiving sewage sludge from the applicant's facility that the applicant does
not own or operate:
(1) The site name or number, contact person, mailing address, and
telephone number, and electronic mail address for the surface disposal
site; and
(2) The total dry metric tons from the applicant's facility
per 365-day period placed on the surface disposal site.
c. The following information for each active sewage sludge
unit at each surface disposal site that the applicant owns or operates:
(1) The name or number and the location of the active sewage
sludge unit;
(2) The unit's latitude and longitude to the nearest second,
and method of determination;
(3) If not already provided, a topographic map (or other map
if a topographic map is unavailable) that shows the unit's location;
(4) The total dry metric tons placed on the active sewage
sludge unit per 365-day period;
(5) The total dry metric tons placed on the active sewage
sludge unit over the life of the unit;
(6) A description of any liner for the active sewage sludge
unit, including whether it has a maximum permeability of 1 X 10-7cm/sec;
(7) A description of any leachate collection system for the
active sewage sludge unit, including the method used for leachate disposal, and
any federal, state, and local permit number(s) for leachate disposal;
(8) If the active sewage sludge unit is less than 150 meters
from the property line of the surface disposal site, the actual distance from
the unit boundary to the site property line;
(9) The remaining capacity (dry metric tons) for the active
sewage sludge unit;
(10) The date on which the active sewage sludge unit is
expected to close, if such a date has been identified;
(11) The following information for any other facility that
sends sewage sludge to the active sewage sludge unit:
(a) The name, contact person, and mailing address,
and electronic mail address of the facility; and
(b) Available information regarding the quality of the sewage
sludge received from the facility, including any treatment at the facility to
reduce pathogens or vector attraction characteristics;
(12) Whether any of the vector attraction reduction options of
9VAC25-31-720 B 9 through 11 is met at the active sewage sludge unit, and a
description of any procedures employed at the time of disposal to reduce vector
attraction properties in sewage sludge;
(13) The following information, as applicable to any
groundwater monitoring occurring at the active sewage sludge unit:
(a) A description of any groundwater monitoring occurring at
the active sewage sludge unit;
(b) Any available groundwater monitoring data, with a
description of the well locations and approximate depth to groundwater;
(c) A copy of any groundwater monitoring plan that has been prepared
for the active sewage sludge unit;
(d) A copy of any certification that has been obtained from a
qualified groundwater scientist that the aquifer has not been contaminated; and
(14) If site-specific pollutant limits are being sought for
the sewage sludge placed on this active sewage sludge unit, information to
support such a request.
17. If sewage sludge from the applicant's facility is fired in
a sewage sludge incinerator, the applicant must provide the following
information:
a. The total dry metric tons of sewage sludge from the
applicant's facility that is fired in sewage sludge incinerators per 365-day
period.
b. The following information for each sewage sludge
incinerator firing the applicant's sewage sludge that the applicant does not
own or operate:
(1) The name and/or or number, contact person,
mailing address, and telephone number, and electronic mail address
of the sewage sludge incinerator; and
(2) The total dry metric tons from the applicant's facility
per 365-day period fired in the sewage sludge incinerator.
18. If sewage sludge from the applicant's facility is sent to
a municipal solid waste landfill (MSWLF), the applicant must provide the
following information for each MSWLF to which sewage sludge is sent:
a. The name, contact person, mailing address, electronic
mail address, location, and all applicable permit numbers of the MSWLF;
b. The total dry metric tons per 365-day period sent from this
facility to the MSWLF;
c. A determination of whether the sewage sludge meets
applicable requirements for disposal of sewage sludge in a MSWLF, including the
results of the paint filter liquids test and any additional requirements that
apply on a site-specific basis; and
d. Information, if known, indicating whether the MSWLF
complies with criteria set forth in the Solid Waste Management Regulations,
9VAC20-81.
19. All applicants must provide the name, mailing address,
telephone number, electronic mail address, and responsibilities of all
contractors responsible for any operational or maintenance aspects of the
facility related to biosolids or sewage sludge generation, treatment, use, or
disposal.
20. At the request of the board, the applicant must provide
any other information necessary to determine the appropriate standards for
permitting under Part VI (9VAC25-31-420 et seq.) of this chapter, and must
provide any other information necessary to assess the biosolids use and sewage
sludge disposal practices, determine whether to issue a permit, or identify
appropriate permit requirements; and pertinent plans, specifications, maps and
such other relevant information as may be required, in scope and details
satisfactory to the board.
21. All applications must be signed by a certifying official
in compliance with 9VAC25-31-110.
R. Applications for facilities
with cooling water intake structures.
1. Application requirements. New facilities with new or
modified cooling water intake structures. New facilities with cooling water
intake structures as defined in 9VAC25-31-165 must report the information
required under subdivisions 2, 3, and 4 of this subsection and under
9VAC25-31-165. Requests for alternative requirements under 9VAC25-31-165 must
be submitted with the permit application.
2. Source water physical data. These include:
a. A narrative description and scaled drawings showing the
physical configuration of all source water bodies used by the facility,
including area dimensions, depths, salinity and temperature regimes, and other
documentation that supports the determination of the water body type where each
cooling water intake structure is located;
b. Identification and characterization of the source water
body's hydrological and geomorphologic features, as well as the methods used to
conduct any physical studies to determine the intake's area of influence within
the water body and the results of such studies; and
c. Location maps.
3. Cooling water intake structure data. These include:
a. A narrative description of the configuration of each
cooling water intake structure and where it is located in the water body and in
the water column;
b. Latitude and longitude in degrees, minutes, and seconds for
each cooling water intake structure;
c. A narrative description of the operation of each cooling
water intake structure, including design intake flow, daily hours of operation,
number of days of the year in operation and seasonal changes, if applicable;
d. A flow distribution and water balance diagram that includes
all sources of water to the facility, recirculation flows and discharges; and
e. Engineering drawings of the cooling water intake structure.
4. Source water baseline biological characterization data.
This information is required to characterize the biological community in the
vicinity of the cooling water intake structure and to characterize the
operation of the cooling water intake structures. The department may also use
this information in subsequent permit renewal proceedings to determine if the
design and construction technology plan as required in 9VAC25-31-165 should be
revised. This supporting information must include existing data if available.
Existing data may be supplemented with data from newly conducted field studies.
The information must include:
a. A list of the data in subdivisions 4 b through 4 f of this
subsection that is not available and efforts made to identify sources of the
data;
b. A list of species (or relevant taxa) for all life stages
and their relative abundance in the vicinity of the cooling water intake
structure;
c. Identification of the species and life stages that would be
most susceptible to impingement and entrainment. Species evaluated should
include the forage base as well as those most important in terms of
significance to commercial and recreational fisheries;
d. Identification and evaluation of the primary period of
reproduction, larval recruitment, and period of peak abundance for relevant
taxa;
e. Data representative of the seasonal and daily activities
(e.g., feeding and water column migration) of biological organisms in the
vicinity of the cooling water intake structure;
f. Identification of all threatened, endangered, and other
protected species that might be susceptible to impingement and entrainment at
the cooling water intake structures;
g. Documentation of any public participation or consultation
with federal or state agencies undertaken in development of the plan; and
h. If information requested in this subdivision 4 is
supplemented with data collected using field studies, supporting documentation
for the source water baseline biological characterization must include a
description of all methods and quality assurance procedures for sampling, and
data analysis including a description of the study area; taxonomic
identification of sampled and evaluated biological assemblages (including all
life stages of fish and shellfish); and sampling and data analysis methods. The
sampling and/or data analysis methods used must be appropriate for a
quantitative survey and based on consideration of methods used in other
biological studies performed within the same source water body. The study area
should include, at a minimum, the area of influence of the cooling water intake
structure.
9VAC25-31-120. Storm water Stormwater discharges.
A. Permit requirements.
1. Prior to October 1, 1994, discharges composed entirely of storm
water stormwater shall not be required to obtain a VPDES permit
except:
a. A discharge with respect to which a permit has been issued
prior to February 4, 1987;
b. A discharge associated with industrial activity; or
c. A discharge which 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 storm water stormwater
run-off, except for those discharges from conveyances which do not require a
permit under subdivision 2 of this subsection or agricultural storm water
stormwater run-off which is exempted from the definition of point
source.
2. The board may not require a permit for discharges of storm
water stormwater run-off from mining operations or oil and gas
exploration, production, processing or treatment operations, or transmission
facilities, composed entirely of flows which are from conveyances or systems of
conveyances (including but not limited to pipes, conduits, ditches, and
channels) used for collecting and conveying precipitation run-off and which 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. In addition to meeting the requirements of subsection B of
this section, an operator of a storm water stormwater discharge
associated with industrial activity which 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, which best reflects
the principal products or services provided by each facility; and any existing
VPDES permit number.
4. For storm water stormwater discharges
associated with industrial activity from point sources which discharge through
a nonmunicipal or nonpublicly owned separate storm sewer system, the board, in
its discretion, may issue: a single VPDES permit, with each discharger a
co-permittee to a permit issued to the operator of the portion of the system
that discharges into surface waters; or, individual permits to each discharger
of storm water stormwater associated with industrial activity
through the nonmunicipal conveyance system.
a. All storm water stormwater discharges
associated with industrial activity that discharge through a storm water
stormwater discharge system that is not a municipal separate storm sewer
must be covered by an individual permit, or a permit issued to the operator of
the portion of the system that discharges to surface waters, with each
discharger to the nonmunicipal conveyance a co-permittee to that permit.
b. Where there is more than one operator of a single system of
such conveyances, all operators of storm water stormwater
discharges associated with industrial activity must submit applications.
c. Any permit covering more than one operator shall identify
the effluent limitations, or other permit conditions, if any, that apply to
each operator.
5. Conveyances that discharge storm water stormwater
run-off combined with municipal sewage are point sources that must obtain VPDES
permits in accordance with the procedures of 9VAC25-31-100 and are not subject
to the provisions of this section.
6. Whether a discharge from a municipal separate storm sewer
is or is not subject to VPDES regulation 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.
7. a. On and after October 1, 1994, for discharges composed
entirely of storm water, stormwater, that are not required by
subdivision 1 of this subsection to obtain a permit, operators shall be
required to obtain a VPDES permit only if:
(1) The board or the EPA regional administrator determines
that storm water 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
(2) 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 nonmunicipal sources designated pursuant to
subdivisions 7 a (1) and (2) of this subsection shall seek coverage under a
VPDES permit in accordance with subdivision B 1 of this section.
c. Operators of storm water stormwater discharges
designated pursuant to subdivisions 7 a (1) and (2) of this subsection shall
apply to the board for a permit within 180 days of receipt of notice, unless
permission for a later date is granted by the board.
B. Application requirements for storm water stormwater
discharges associated with industrial activity.
1. Dischargers of storm water stormwater
associated with industrial activity are required to apply for an individual
permit or seek coverage under a promulgated storm water stormwater
general permit. Facilities that are required to obtain an individual permit, or
any discharge of storm water stormwater which the board is
evaluating for designation under subdivision A 1 c of this section, shall
submit a VPDES application in accordance with the requirements of 9VAC25-31-100
as modified and supplemented by the provisions of this subsection.
a. Except as provided in subdivisions 1 b and c of this
subsection, the operator of a storm water stormwater discharge
associated with industrial activity subject to this section shall provide:
(1) A site map showing topography (or indicating the outline
of drainage areas served by the outfall or outfalls covered in the application
if a topographic map is unavailable) of the facility including: each of its
drainage and discharge structures; the drainage area of each storm water
stormwater outfall; paved areas and buildings within the drainage area
of each storm water stormwater outfall, each past or present area
used for outdoor storage or disposal of significant materials, each existing
structural control measure to reduce pollutants in storm water stormwater
run-off, materials loading and access areas, areas where pesticides,
herbicides, soil conditioners and fertilizers are applied, each of its
hazardous waste treatment, storage or disposal facilities (including each area
not required to have a RCRA permit which that is used for
accumulating hazardous waste under 40 CFR 262.34); each well where fluids from
the facility are injected underground; springs, and other surface water bodies
which receive storm water stormwater discharges from the
facility;
(2) An estimate of the area of impervious surfaces (including
paved areas and building roofs) and the total area drained by each outfall
(within a mile radius of the facility) and a narrative description of the
following: Significant materials that in the three years prior to the submittal
of this application have been treated, stored or disposed in a manner to allow
exposure to storm water stormwater; method of treatment, storage
or disposal of such materials; materials management practices employed, in the
three years prior to the submittal of this application, to minimize contact by
these materials with storm water stormwater runoff; materials
loading and access areas; the location, manner and frequency in which
pesticides, herbicides, soil conditioners and fertilizers are applied; the
location and a description of existing structural and nonstructural control
measures to reduce pollutants in storm water stormwater runoff;
and a description of the treatment the storm water stormwater
receives, including the ultimate disposal of any solid or fluid wastes other
than by discharge;
(3) A certification that all outfalls that should contain storm
water stormwater discharges associated with industrial activity have
been tested or evaluated for the presence of nonstorm water nonstormwater
discharges which that are not covered by a VPDES permit; tests
for such nonstorm water nonstormwater discharges may include
smoke tests, fluorometric dye tests, analysis of accurate schematics, as well
as other appropriate tests. The certification shall include a description of
the method used, the date of any testing, and the onsite drainage points that
were directly observed during a test;
(4) Existing information regarding significant leaks or spills
of toxic or hazardous pollutants at the facility that have taken place within
the three years prior to the submittal of this application;
(5) Quantitative data based on samples collected during storm
events and collected in accordance with 9VAC25-31-100 of this part from all
outfalls containing a storm water stormwater discharge associated
with industrial activity for the following parameters:
(a) Any pollutant limited in an effluent guideline to which
the facility is subject;
(b) Any pollutant listed in the facility's VPDES permit for
its process wastewater (if the facility is operating under an existing VPDES
permit);
(c) Oil and grease, pH, BOD5, COD, TSS, total
phosphorus, total Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
(d) Any information on the discharge required under
9VAC25-31-100 G 7 f and g;
(e) Flow measurements or estimates of the flow rate, and the
total amount of discharge for the storm event or events sampled, and the method
of flow measurement or estimation; and
(f) The date and duration (in hours) of the storm event or
events sampled, rainfall measurements or estimates of the storm event (in
inches) which generated the sampled run-off and the duration between the storm
event sampled and the end of the previous measurable (greater than 0.1 inch
rainfall) storm event (in hours);
(6) Operators of a discharge which is composed entirely of storm
water stormwater are exempt from the requirements of 9VAC25-31-100 G
2, G 3, G 4, G 5, G 7 c, G 7 d, G 7 e, and G 7 h; and
(7) Operators of new sources or new discharges which that
are composed in part or entirely of storm water stormwater must
include estimates for the pollutants or parameters listed in subdivision 1 a
(5) of this subsection instead of actual sampling data, along with the source
of each estimate. Operators of new sources or new discharges composed in part
or entirely of storm water stormwater must provide quantitative
data for the parameters listed in subdivision 1 a (5) of this subsection within
two years after commencement of discharge, unless such data has already been
reported under the monitoring requirements of the VPDES permit for the
discharge. Operators of a new source or new discharge which that
is composed entirely of storm water stormwater are exempt from
the requirements of 9VAC25-31-100 K 3 b, K 3 c, and K 5.
b. The operator of an existing or new discharge composed
entirely of storm water stormwater from an oil or gas
exploration, production, processing, or treatment operation, or transmission
facility is not required to submit a permit application in accordance with
subdivision 1 a of this subsection, unless the facility:
(1) Has had a discharge of storm water stormwater
resulting in the discharge of a reportable quantity for which notification is
or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at any time since
November 16, 1987;
(2) Has had a discharge of storm water stormwater
resulting in the discharge of a reportable quantity for which notification is
or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987;
or
(3) Contributes to a violation of a water quality standard.
c. The operator of an existing or new discharge composed
entirely of storm water stormwater from a mining operation is not
required to submit a permit application unless the discharge has come into
contact with any overburden, raw material, intermediate products, finished
product, byproduct, or waste products located on the site of such
operations.
d. Applicants shall provide such other information the board
may reasonably require to determine whether to issue a permit.
2. No application for a VPDES permit authorizing direct or
indirect discharge of stormwater runoff from a new municipal solid waste
landfill into a local watershed protection district established and designated
as such by city ordinance prior to January 1, 2006, shall be considered
complete unless it contains certification from the local governing body of the
city in which the discharge is to take place, that the discharge is consistent
with the city's ordinance establishing and designating the local watershed
protection district. This requirement shall apply to applications for new or
modified individual VPDES permits and for new or modified coverage under
general VPDES permits. This requirement does not apply to any municipal solid
waste landfill in operation on or before January 1, 2006.
C. Application deadlines. Any operator of a point source
required to obtain a permit under this section that does not have an effective
VPDES permit authorizing discharges from its storm water stormwater
outfalls shall submit an application in accordance with the following
deadlines:
1. Individual applications.
a. Except as provided in subdivision 1 b of this subsection,
for any storm water stormwater discharge associated with
industrial activity as defined in this chapter which is not authorized by a storm
water stormwater general permit, a permit application made pursuant
to subsection B of this section shall be submitted to the department by October
1, 1992;
b. For any storm water stormwater discharge
associated with industrial activity from a facility that is owned or operated
by a municipality with a population of less than 100,000 that is not authorized
by a general or individual permit, other than an airport, powerplant, or
uncontrolled sanitary landfill, permit applications must be submitted to the
department by March 10, 2003;
2. A permit application shall be submitted to the department
within 180 days of notice, unless permission for a later date is granted by the
board, for:
a. A storm water stormwater discharge which
either the board or the regional administrator, determines that the discharge
contributes to a violation of a water quality standard or is a significant
contributor of pollutants to surface waters; or
b. A storm water stormwater discharge subject to
subdivision B 1 d of this section;
3. Facilities with existing VPDES permits for storm water
stormwater discharges associated with industrial activity shall maintain
existing permits. Facilities with permits for storm water stormwater
discharges associated with industrial activity which expire on or after May 18,
1992, shall submit a new application in accordance with the requirements of
9VAC25-31-100 and 9VAC25-31-120 B (Form 1, Form 2F, and other applicable forms)
180 days before the expiration of such permits.
D. Petitions.
1. Any person may petition the board to require a VPDES permit
for a discharge which that is composed entirely of storm water
stormwater which contributes to a violation of a water quality standard
or is a significant contributor of pollutants to surface waters.
2. The board shall make a final determination on any petition
received under this section within 90 days after receiving the petition.
E. Conditional exclusion for no exposure of industrial
activities and materials to storm water. stormwater. Discharges
composed entirely of storm water stormwater are not storm
water stormwater discharges associated with industrial activity if
there is no exposure of industrial materials and activities to rain, snow, snowmelt
or run-off and the discharger satisfies the conditions in subdivisions 1
through 4 of this subsection. No exposure means that all industrial materials
and activities are protected by a storm resistant shelter to prevent exposure
to rain, snow, snowmelt, and run-off. Industrial materials or activities
include, but are not limited to, material handling equipment or
activities, industrial machinery, raw materials, intermediate products,
by-products, final products, or waste products. Material handling activities
include the storage, loading and unloading, transportation, or conveyance of
any raw material, intermediate product, final product or waste product.
1. To qualify for this exclusion, the operator of the
discharge must:
a. Provide a storm resistant shelter to protect industrial
materials and activities from exposure to rain, snow, snow melt, and run-off;
b. Complete and sign (according to 9VAC25-31-110) a
certification that there are no discharges of storm water stormwater
contaminated by exposure to industrial materials and activities from the entire
facility, except as provided in subdivision 2 of this subsection;
c. Submit the signed certification to the department once
every five years. As of the start date in Table 1 of 9VAC25-31-1020, all certifications
submitted in compliance with this section shall be submitted electronically by
the owner or operator to the department in compliance with this section and 40
CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110,
and Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is
not intended to undo existing requirements for electronic reporting. Prior to
this date, and independent of Part XI of this chapter, owners or operators may
be required to report electronically if specified by a particular permit;
d. Allow the department to inspect the facility to determine
compliance with the no exposure conditions;
e. Allow the department to make any no exposure inspection
reports available to the public upon request; and
f. For facilities that discharge through an MS4, upon request,
submit a copy of the certification of no exposure to the MS4 operator, as well
as allow inspection and public reporting by the MS4 operator.
2. Storm resistant shelter is not required for:
a. Drums, barrels, tanks, and similar containers that are
tightly sealed, provided those containers are not deteriorated and do not leak
("sealed" means banded or otherwise secured and without operational
taps or valves);
b. Adequately maintained vehicles used in material handling;
and
c. Final products, other than products that would be mobilized
in storm water stormwater discharge (e.g., rock salt).
3. a. This conditional exclusion from the requirement for a
VPDES permit is available on a facility-wide basis only, not for individual
outfalls. If a facility has some discharges of storm water stormwater
that would otherwise be no exposure discharges, individual permit requirements
should be adjusted accordingly.
b. If circumstances change and industrial materials or
activities become exposed to rain, snow, snow melt, or run-off, the conditions
for this exclusion no longer apply. In such cases, the discharge becomes
subject to enforcement for unpermitted discharge. Any conditionally exempt
discharger who anticipates changes in circumstances should apply for and obtain
permit authorization prior to the change of circumstances.
c. Notwithstanding the provisions of this subsection, the
board retains the authority to require permit authorization (and deny this
exclusion) upon making a determination that the discharge causes, has a
reasonable potential to cause, or contributes to an instream excursion above an
applicable water quality standard, including designated uses.
4. The no exposure certification requires the submission of
the following information, at a minimum, to aid the board in determining if the
facility qualifies for the no exposure exclusion:
a. The legal name, address, and phone number of the
discharger.
b. The facility name and address, the county name and the
latitude and longitude where the facility is located.
c. Certification that indicates that none of the following
materials or activities are, or will be in the foreseeable future, exposed to
precipitation:
(1) Using, storing, or cleaning industrial machinery or
equipment, and areas where residuals from using, storing, or cleaning
industrial machinery or equipment remain and are exposed to storm water stormwater;
(2) Materials or residuals on the ground or in storm water
stormwater inlets from spills/leaks;
(3) Materials or products from past industrial activity;
(4) Material handling equipment (except adequately maintained
vehicles);
(5) Materials or products during loading/unloading or
transporting activities;
(6) Materials or products stored outdoors (except final
products intended for outside use, e.g., new cars, where exposure to storm
water stormwater does not result in the discharge of pollutants);
(7) Materials contained in open, deteriorated or leaking storage
drums, barrels, tanks, and similar containers;
(8) Materials or products handled/stored on roads or railways
owned or maintained by the discharger;
(9) Waste material (except waste in covered, nonleaking
containers, e.g., dumpsters);
(10) Application or disposal of process wastewater (unless
otherwise permitted); and
(11) Particulate matter or visible deposits of residuals from
roof stacks/vents not otherwise regulated, i.e., under an air quality control
permit, and evident in the storm water stormwater outflow.
d. All no exposure certifications must include the following
certification statement and be signed in accordance with the signatory
requirements of 9VAC25-31-110: "I certify under penalty of law that I have
read and understand the eligibility requirements for claiming a condition of no
exposure and obtaining an exclusion from VPDES storm water stormwater
permitting; and that there are no discharges of storm water stormwater
contaminated by exposure to industrial activities or materials from the
industrial facility identified in this document (except as allowed under
9VAC25-31-120 E 2). I understand that I am obligated to submit a no exposure
certification form once every five years to the Department of Environmental
Quality and, if requested, to the operator of the local MS4 into which this
facility discharges (where applicable). I understand that I must allow the
department, or MS4 operator where the discharge is into the local MS4, to
perform inspections to confirm the condition of no exposure and to make such
inspection reports publicly available upon request. I understand that I must
obtain coverage under a VPDES permit prior to any point source discharge of storm
water stormwater associated with industrial activity from the
facility. 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 gathered and evaluated the
information submitted. Based upon my inquiry of the person or persons who
manage the system, or those persons directly involved in gathering the
information, the information submitted is to the best of my knowledge and
belief true, accurate and complete. I am aware there are significant penalties
for submitting false information, including the possibility of fine and
imprisonment for knowing violations."
9VAC25-31-130. Concentrated animal feeding operations.
A. Permit requirement for CAFOs.
1. Concentrated animal feeding operations as defined in
9VAC25-31-10 or designated in accordance with subsection B of this section are
point sources that require VPDES permits for discharges. Once an operation is
defined as a CAFO, the VPDES requirements for CAFOs apply with respect to all
animals in confinement at the operation and all manure, litter and process
wastewater generated by those animals or the production of those animals,
regardless of the type of animal.
2. Two or more animal feeding operations under common
ownership are considered, for the purposes of this chapter, to be a single
animal feeding operation if they adjoin each other or if they use a common area
or system for the disposal of wastes.
B. Case-by-case designations. The board may designate any
animal feeding operation as a concentrated animal feeding operation upon
determining that it is a significant contributor of pollution to surface
waters.
1. In making this designation the board shall consider the
following factors:
a. The size of the animal feeding operation and the amount of
wastes reaching surface waters;
b. The location of the animal feeding operation relative to
surface waters;
c. The means of conveyance of animal wastes and process
wastewaters into surface waters;
d. The slope, vegetation, rainfall, and other factors
affecting the likelihood or frequency of discharge of animal wastes and process
wastewaters into surface waters; and
e. Other relevant factors.
2. No animal feeding operation with less than the numbers of
animals set forth in the definition of Medium CAFO in this regulation shall be
designated as a concentrated animal feeding operation unless:
a. Pollutants are discharged into surface waters through a
manmade ditch, flushing system, or other similar manmade device; or
b. Pollutants are discharged directly into surface waters
which originate outside of the facility and pass over, across, or through the
facility or otherwise come into direct contact with the animals confined in the
operation.
3. A permit application shall not be required from a concentrated
animal feeding operation designated under this subsection until the board has
conducted an on-site inspection of the operation and determined that the
operation should and could be regulated under the VPDES permit program.
C. VPDES permit authorization.
1. Permit requirement. The owners or operators of a CAFO shall
not discharge unless the discharge is authorized by a VPDES permit. In order to
obtain authorization under a VPDES permit, the CAFO owner or operator shall
either apply for an individual VPDES permit or apply for coverage under a VPDES
general permit. The owners or operators of a CAFO must have obtained
authorization under the VPDES permit at the time that the CAFO discharges.
2. Information to submit with permit application. A permit application
for an individual permit must include the information specified in
9VAC25-31-100 J. A notice of intent for a general permit must include the
information specified in 9VAC25-31-100 J and 9VAC25-31-170.
3. Land application discharges from a CAFO are subject to
VPDES requirements. The discharge of manure, litter or process wastewater to
surface waters from a CAFO as the result of the application of that manure,
litter or process wastewater by the CAFO to land areas under its control is a
discharge from that CAFO subject to VPDES requirements, except where it is an
agricultural storm water stormwater discharge as provided in 33
USC § 1362(14). For purposes of this subdivision, where the manure, litter or
process wastewater has been applied in accordance with a nutrient management
plan approved by the Department of Conservation and Recreation and in
accordance with site specific nutrient management practices that ensure
appropriate agricultural utilization of the nutrients in the manure, litter,
or process wastewater, as specified in subdivisions E 1 f through i of
9VAC25-31-200, a precipitation-related discharge of manure, litter or process
wastewater from land areas under the control of a CAFO is an agricultural storm
water stormwater discharge.
a. For unpermitted Large CAFOs, a precipitation-related
discharge of manure, litter, or process wastewater from land areas under the
control of a CAFO shall be considered an agricultural stormwater discharge only
where the manure, litter, or process wastewater has been land applied in
accordance with site-specific nutrient management practices that ensure
appropriate agricultural utilization of the nutrients in the manure, litter, or
process wastewater, as specified in subdivisions E 1 f through i of 9VAC25-31-200.
b. Unpermitted Large CAFOs shall maintain documentation
specified in subdivision E 1 i of 9VAC25-31-200 either on site or at a nearby
office, or otherwise make such documentation readily available to department
staff upon request.
4. Procedures for CAFOs seeking coverage under a general
permit. CAFO owners or operators shall submit a registration statement when
seeking authorization to discharge under a general permit in accordance with
subsection B of 9VAC25-31-170. The board will review registration statements
submitted by CAFO owners or operators to ensure that the registration statement
includes the information required by subsection J of 9VAC25-31-100, including a
nutrient management plan that meets the requirements of subsection E of
9VAC25-31-200 and applicable effluent limitations and standards, including
those specified in 40 CFR Part 412. When additional information is necessary to
complete the registration statement or clarify, modify, or supplement
previously submitted material, the board may request such information from the
owner or operator. If the board makes a preliminary determination that the
registration statement meets the requirements of subsection J of 9VAC25-31-100
and subsection E of 9VAC25-31-200, the board will notify the public of the
board's proposal to grant coverage under the permit to the CAFO and make
available for public review and comment the registration statement submitted by
the CAFO, including the CAFO's nutrient management plan, and the draft terms of
the nutrient management plan to be incorporated into the permit. The process
for submitting public comments and public hearing requests, and the public
hearing process if a request for a public hearing is granted, shall follow the
procedures applicable to draft permits set forth in 9VAC25-31-300,
9VAC25-31-310, and 40 CFR 124.13. The board may establish, either
by regulation or in the general permit, an appropriate period of time for the
public to comment and request a public hearing that differs from the time
period specified in 9VAC25-31-290. The board's response to significant comments
received during the comment period is governed by 9VAC25-31-320, and, if
necessary, the board will require the CAFO owner or operator to revise the
nutrient management plan in order to be granted permit coverage. When the board
authorizes coverage for the CAFO owner or operator under the general permit,
the terms of the nutrient management plan shall become incorporated as terms
and conditions of the permit for the CAFO. The board will notify the CAFO owner
or operator and inform the public that coverage has been authorized and of the
terms of the nutrient management plan incorporated as terms and conditions of
the permit applicable to the CAFO.
5. Changes to a nutrient management plan. Any permit issued to
a CAFO shall require the following procedures to apply when a CAFO owner or
operator makes changes to the CAFO's nutrient management plan previously
submitted to the board:
a. The CAFO owner or operator shall provide the board with the
most current version of the CAFO's nutrient management plan and identify
changes from the previous version, except that the results of calculations made
in accordance with the requirements of subdivisions E 5 a (2) and E 5 b (4) of
9VAC25-31-200 are not subject to the requirements of this subdivision 5.
b. The board will review the revised nutrient management plan
to ensure that it meets the requirements of this section and applicable
effluent limitations and standards, including those specified in 40 CFR Part
412, and will determine whether the changes to the nutrient management plan
necessitate revision to the terms of the nutrient management plan incorporated
into the permit issued to the CAFO. If revision to the terms of the nutrient
management plan is not necessary, the board will notify the CAFO owner or
operator and upon such notification the CAFO may implement the revised nutrient
management plan. If revision to the terms of the nutrient management plan is
necessary, the board will determine whether such changes are substantial
changes as described in subdivision 5 c of this subsection.
(1) If the board determines that the changes to the terms of
the nutrient management plan are not substantial, the board will make the
revised nutrient management plan publicly available and include it in the
permit record, revise the terms of the nutrient management plan incorporated
into the permit, and notify the owner or operator and inform the public of any
changes to the terms of the nutrient management plan that are incorporated into
the permit.
(2) If the board determines that the changes to the terms of
the nutrient management plan are substantial, the board will notify the public
and make the proposed changes and the information submitted by the CAFO owner
or operator available for public review and comment. The process for public
comments, public hearing requests, and the public hearing process if a public
hearing is held shall follow the procedures applicable to draft permits set
forth in 9VAC25-31-300, 9VAC25-31-310, and 40 CFR 124.13. The board may
establish, either by regulation or in the CAFO's permit, an appropriate period
of time for the public to comment and request a public hearing on the proposed
changes that differs from the time period specified in 9VAC25-31-290. The board
will respond to all significant comments received during the comment period as
provided in 9VAC25-31-320, and require the CAFO owner or operator to further
revise the nutrient management plan if necessary, in order to approve the
revision to the terms of the nutrient management plan incorporated into the
CAFO's permit. Once the board incorporates the revised terms of the nutrient
management plan into the permit, the board will notify the owner or operator
and inform the public of the final decision concerning revisions to the terms
and conditions of the permit.
c. Substantial changes to the terms of a nutrient management
plan incorporated as terms and conditions of a permit include, but are not
limited to:
(1) Addition of new land application areas not previously
included in the CAFO's nutrient management plan. Except that if the land
application area that is being added to the nutrient management plan is covered
by terms of a nutrient management plan incorporated into an existing VPDES
permit in accordance with the requirements of subdivision E 5 of 9VAC25-31-200,
and the CAFO owner or operator applies manure, litter, or process wastewater on
the newly added land application area in accordance with the existing
field-specific permit terms applicable to the newly added land application
area, such addition of new land would be a change to the new CAFO owner or
operator's nutrient management plan but not a substantial change for purposes
of this section;
(2) Any changes to the field-specific maximum annual rates for
land application, as set forth in subdivision E 5 a of 9VAC25-31-200, and to
the maximum amounts of nitrogen and phosphorus derived from all sources for
each crop, as set forth in subdivision E 5 b of 9VAC25-31-200;
(3) Addition of any crop or other uses not included in the
terms of the CAFO's nutrient management plan and corresponding field-specific
rates of application expressed in accordance with subdivision E 5 of
9VAC25-31-200; and
(4) Changes to site-specific components of the CAFO's nutrient
management plan, where such changes are likely to increase the risk of nitrogen
and phosphorus transport to state waters.
6. Causes for modification of nutrient management plans. The
incorporation of the terms of a CAFO's nutrient management plan into the terms
and conditions of a general permit when a CAFO obtains coverage under a general
permit in accordance with subdivision C 4 of 9VAC25-31-130 and 9VAC25-31-170 is
not a cause for modification pursuant to the requirements of 9VAC25-31-370.
9VAC25-31-170. 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 or sludge use or disposal practices
or facilities described in the permit under subdivision 2 b of this subsection,
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 the
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 or subcategories of discharges or sludge use or disposal practices
or facilities, within the area described in subdivision 1 of this subsection,
where the sources within a covered subcategory of discharges are either:
a. Storm water Stormwater point sources; or
b. One or more categories or subcategories of point sources
other than storm water stormwater point sources, or one or more
categories or subcategories of treatment works treating domestic sewage, if the
sources or treatment works treating domestic sewage within each category or
subcategory all:
(1) Involve the same or substantially similar types of
operations;
(2) Discharge the same types of wastes or engage in the same
types of sludge use or disposal practices;
(3) Require the same effluent limitations, operating
conditions, or standards for sewage sludge use or disposal;
(4) Require the same or similar monitoring; and
(5) In the opinion of the board, are more appropriately
controlled under a general permit than under individual permits.
3. Where sources within a specific category of dischargers are
subject to water quality-based limits imposed pursuant to 9VAC25-31-220, 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 or treatment works
treating domestic sewage 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, or authorization to engage in
sludge use and disposal practices.
a. Except as provided in subdivisions 2 e and 2 f of this
subsection, dischargers (or treatment works treating domestic sewage) 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 (or treatment works
treating domestic sewage) who fails to submit a notice of intent in accordance
with the terms of the permit is not authorized to discharge, (or in the case of
a sludge disposal permit, to engage in a sludge use or disposal practice),
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. As of
the start date in Table 1 of 9VAC25-31-1020, all notices of intent submitted in
compliance with this subsection shall be submitted electronically by the discharger
(or treatment works treating domestic sewage) to the department in compliance
with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3
Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter.
Part XI of this chapter is not intended to undo existing requirements for
electronic reporting. Prior to this date, and independent of Part XI of this
chapter, dischargers (or treatment works treating domestic sewage) may be
required to report electronically if specified by a particular permit.
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 and other required
data elements as identified in Appendix A to 40 CFR Part 127, as adopted by
reference in 9VAC25-31-1030. General permits for storm water stormwater
discharges associated with industrial activity from inactive mining, inactive
oil and gas operations, or inactive landfills occurring on federal lands where
an operator cannot be identified may contain alternative notice of intent
requirements. Notices of intent for coverage under a general permit for
concentrated animal feeding operations must include the information specified
in 9VAC25-31-100 J 1, including a topographic map. All notices of intent shall
be signed in accordance with 9VAC25-31-110.
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 permit.
d. General permits shall specify whether a discharger (or
treatment works treating domestic sewage) 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 permit, is authorized to discharge, (or
in the case of a sludge disposal permit, to engage in a sludge use or disposal
practice), in accordance with the 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. Discharges other than discharges from publicly owned
treatment works, combined sewer overflows, primary industrial facilities, and storm
water stormwater discharges associated with industrial 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 type of discharge; the expected nature of the
discharge; the potential for toxic and conventional pollutants in the
discharges; the expected volume of the discharges; other means of identifying
discharges covered by the permit; and the estimated number of discharges to be
covered by the 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 (or treatment works
treating domestic sewage) that it is covered by a general permit, even if the
discharger (or treatment works treating domestic sewage) has not submitted a
notice of intent to be covered. A discharger (or treatment works treating
domestic sewage) so notified may request an individual permit under subdivision
3 c of this subsection.
g. A CAFO owner or operator may be authorized to discharge
under a general permit only in accordance with the process described in
subdivision C 4 of 9VAC25-31-130.
3. Requiring an individual permit.
a. The board may require any discharger authorized by a
general permit to apply for and obtain an individual VPDES permit. Any
interested person may request the board to take action under this subdivision.
Cases where an individual VPDES permit may be required include the following:
(1) The discharger or treatment works treating domestic sewage
is not in compliance with the conditions of the general VPDES 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 or treatment works treating domestic sewage;
(3) Effluent limitation guidelines are promulgated for point
sources covered by the general VPDES permit;
(4) A water quality management plan 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) Standards for sewage sludge use or disposal have been
promulgated for the sludge use and disposal practice covered by the general
VPDES permit; or
(7) The discharge(s) discharge 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 required on a case-by-case basis.
(1) The board may determine, on a case-by-case basis, that
certain concentrated animal feeding operations, concentrated aquatic animal
production facilities, storm water 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 permit and in any subsequent public hearing.
(3) Prior to a case-by-case determination that an individual
permit is required for a storm water stormwater discharge under
this subsection, the board may require the discharger to submit a permit
application or other information regarding the discharge under the law 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 permit under 9VAC25-31-120 A 1 within 60 days of
notice or under 9VAC25-31-120 A 7 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 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
9VAC25-31-100 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 VPDES permit is issued to an owner or
operator otherwise subject to a general VPDES permit, the applicability of the
general permit to the individual VPDES 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.
Part III
Permit Conditions
9VAC25-31-190. Conditions applicable to all permits.
The following conditions apply to all VPDES permits.
Additional conditions applicable to VPDES permits are in 9VAC25-31-200. All
conditions applicable to VPDES permits shall be incorporated into the permits
either expressly or by reference. If incorporated by reference, a specific
citation to this regulation must be given in the permit.
A. The permittee must comply with all conditions of the
permit. Any permit noncompliance constitutes a violation of the law and the
CWA, except that noncompliance with certain provisions of the permit may
constitute a violation of the law but not the CWA. 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 CWA for toxic pollutants and
with standards for sewage sludge use or disposal established under § 405(d) of
the CWA within the time provided in the chapters that establish these standards
or prohibitions or standards for sewage sludge use or disposal, even if the
permit has not yet been modified to incorporate the requirement.
B. If the permittee wishes to continue an activity regulated
by the permit after the expiration date of the permit, the permittee must apply
for and obtain a new permit.
C. 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. The permittee shall take all reasonable steps to minimize
or prevent any discharge or sludge use or disposal in violation of the permit
which has a reasonable likelihood of adversely affecting human health or the
environment.
E. The permittee shall at all times properly operate and
maintain all facilities and systems of treatment and control (and related appurtenances)
which 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 which that are installed by a
permittee only when the operation is necessary to achieve compliance with the
conditions of the permit.
F. 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. Permits do not convey any property rights of any sort, or
any exclusive privilege.
H. The permittee shall furnish to the department, within a
reasonable time, any information which 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 the permittee's 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.
I. 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 CWA 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. Except for records of monitoring information required by
the permit related to the permittee's sewage sludge use and disposal
activities, which shall be retained for a period of at least five years (or
longer as required by Part VI (9VAC25-31-420 et seq.) of this chapter), 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 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 or alternative EPA approved methods;
or, in the case of sludge use or disposal, approved under 40 CFR Part 136
unless otherwise specified in Part VI of this chapter, unless other test
procedures have been specified in the permit.
5. Samples taken shall be analyzed by a laboratory
certified under 1VAC30-45, Certification for Noncommercial Environmental
Laboratories, or 1VAC30-46, Accreditation for Commercial Environmental
Laboratories.
K. 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;
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 in the
permit, nor to notification requirements under 9VAC25-31-200 A 1; 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.
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 CWA.
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) or forms provided or specified by the department for
reporting results of monitoring of sludge use or disposal practices. As of the
start date in Table 1 of 9VAC25-31-1020, all reports and forms submitted in
compliance with this subdivision 4 shall be submitted electronically by the
permittee to the department in compliance with this subdivision 4 and 40 CFR
Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and
Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not
intended to undo existing requirements for electronic reporting. Prior to this
date, and independent of Part XI of this chapter, permittees may be required to
report electronically if specified by a particular permit.
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, in the case of sludge use or
disposal, approved under 40 CFR Part 136 unless otherwise specified in Part VI
of this chapter, 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 or sludge reporting form specified by the department.
c. Calculations for all limitations which 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 effects 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 plant or
auxiliary facilities (such as sewer lines or wastewater pump stations); and
d. Flooding or other acts of nature.
7. Twenty-four hour and five-day 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 report in a format required by the department shall also be provided within
five days of the time the permittee becomes aware of the circumstances. The
five-day report 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.
(1) For noncompliance events related to combined sewer
overflows, sanitary sewer overflows, or bypass events, these reports must
include the data described in subdivision 7 a of this subsection with the
exception of time of discovery, as well as the type of event (i.e., combined
sewer overflows, sanitary sewer overflows, or bypass events); type of sewer
overflow structure (e.g., manhole, combine sewer overflow outfall); discharge
volumes untreated by the treatment works treating domestic sewage; types of
human health and environmental impacts of the sewer overflow event; and whether
the noncompliance was related to wet weather.
(2) As of the start date in Table 1 of 9VAC25-31-1020, all
reports related to combined sewer overflows, sanitary sewer overflows, or
bypass events submitted in compliance with this subdivision 7 shall be
submitted electronically by the permittee to the department in compliance with
this subdivision 7 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3
Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter.
Part XI of this chapter is not intended to undo existing requirements for
electronic reporting. Prior to this date, and independent of Part XI of this
chapter, permittees may be required to electronically submit reports related to
combined sewer overflows, sanitary sewer overflows, or bypass events under this
subdivision by a particular permit.
(3) The director may also require permittees to electronically
submit reports not related to combined sewer overflows, sanitary sewer
overflows, or bypass events under this subdivision.
b. The following shall 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 five-day 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 a format
required by the department at the time the next monitoring reports are
submitted. The reports shall contain the information listed in subdivision 7 of
this subsection.
a. For noncompliance events related to combined sewer
overflows, sanitary sewer overflows, or bypass events, these reports shall
contain the information described in subdivision 7 a of this subsection and the
applicable required data in Appendix A to 40 CFR Part 127 as adopted by
reference in 9VAC25-31-1030.
b. As of the start date in Table 1 of 9VAC25-31-1020, all
reports related to combined sewer overflows, sanitary sewer overflows, or
bypass events submitted in compliance with this subdivision 8 shall be
submitted electronically by the permittee to the department in compliance with
this subdivision 8 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3
Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter.
Part XI of this chapter is not intended to undo existing requirements for
electronic reporting. Prior to this date, and independent of Part XI of this
chapter, permittees may be required to electronically submit reports related to
combined sewer overflows, sanitary sewer overflows, or bypass events under this
section by a particular permit.
c. The director may also require permittees to electronically
submit reports not related to combined sewer overflows, sanitary sewer
overflows, or bypass events under this section.
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.
10. The owner, operator, or the duly authorized representative
of an VPDES-regulated entity is required to electronically submit the required
information, as specified in Appendix A to 40 CFR Part 127 as adopted by
reference in 9VAC25-31-1030, to the department.
M. Bypass.
1. 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 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. As of the start date in Table 1 of 9VAC25-31-1020,
all notices submitted in compliance with this subdivision shall be submitted
electronically by the permittee to the department in compliance with this
subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3
Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et seq.) of this chapter.
Part XI of this chapter is not intended to undo existing requirements for
electronic reporting. Prior to this date, and independent of Part XI of this
chapter, permittees may be required to report electronically if specified by a
particular permit.
b. Unanticipated bypass. The permittee shall submit notice of
an unanticipated bypass as required in subdivision L 7 of this section. As of
the start date in Table 1 of 9VAC25-31-1020, all notices submitted in
compliance with this subdivision shall be submitted electronically by the
permittee to the department in compliance with this subdivision and 40 CFR Part
3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and
Part XI (9VAC25-31-950 et seq.) of this chapter. Part XI of this chapter is not
intended to undo existing requirements for electronic reporting. Prior to this
date, and independent of Part XI of this chapter, permittees may be required to
report electronically if specified by a particular permit.
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
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 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
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.
9VAC25-31-200. Additional conditions applicable to specified
categories of VPDES permits.
The following conditions, in addition to those set forth in
9VAC25-31-190, apply to all VPDES permits within the categories specified
below:
A. Existing manufacturing, commercial, mining, and
silvicultural dischargers. All existing manufacturing, commercial, mining, and
silvicultural dischargers must notify the department as soon as they know or
have reason to believe:
1. 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 that is not limited in the permit, if that discharge will
exceed the highest of the following notification levels:
a. One hundred micrograms per liter (100 µg/l);
b. Two hundred micrograms per liter (200 µg/l) for
acrolein and acrylonitrile; five hundred 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;
c. Five times the maximum concentration value reported for
that pollutant in the permit application; or
d. The level established by the board in accordance with
9VAC25-31-220 F.
2. 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 that is not limited in the permit, if that
discharge will exceed the highest of the following notification levels:
a. Five hundred micrograms per liter (500 µg/l);
b. One milligram per liter (1 mg/l) for antimony;
c. Ten times the maximum concentration value reported for that
pollutant in the permit application; or
d. The level established by the board in accordance with
9VAC25-31-220 F.
B. Publicly and privately owned treatment works. All POTWs
and PVOTWs must provide adequate notice to the department of the following:
1. Any new introduction of pollutants into the POTW or PVOTW from
an indirect discharger which that would be subject to § 301
or 306 of the CWA and the law if it were directly discharging those pollutants;
and
2. Any substantial change in the volume or character of
pollutants being introduced into that POTW or PVOTW by a source introducing
pollutants into the POTW or PVOTW at the time of issuance of the permit.
3. For purposes of this subsection, adequate notice shall
include information on (i) the quality and quantity of effluent introduced into
the POTW or PVOTW, and (ii) any anticipated impact of the change on the
quantity or quality of effluent to be discharged from the POTW or PVOTW.
4. When the monthly average flow influent to a POTW or PVOTW
reaches 95% of the design capacity authorized by the VPDES permit for each
month of any three-month period, the owner shall within 30 days notify the
department in writing and within 90 days submit a plan of action for ensuring
continued compliance with the terms of the permit.
a. The plan shall include the necessary steps and a prompt
schedule of implementation for controlling any current problem, or any problem
which could be reasonably anticipated, resulting from high influent flows.
b. Upon receipt of the owner's plan of action, 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.
c. Failure to timely submit an adequate plan shall be deemed a
violation of the permit.
d. 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.
C. Wastewater works operator requirements.
1. The permittee shall employ or contract at least one
wastewater works operator who holds a current wastewater license appropriate
for the permitted facility. The license shall be issued in accordance with
Title 54.1 of the Code of Virginia and the regulations of the Board for
Waterworks and Wastewater Works Operators and Onsite Sewage System
Professionals Regulations (18VAC160-20) Waterworks and Wastewater Works Operators
Licensing Regulations (18VAC160-30). Notwithstanding the foregoing
requirement, unless the discharge is determined by the board on a case-by-case
basis to be a potential contributor of pollution, no licensed operator is
required for wastewater treatment works:
a. That have a design hydraulic capacity equal to or less than
0.04 mgd;
b. That discharge industrial waste or other waste from coal
mining operations; or
c. That do not utilize biological or physical/chemical
treatment.
2. In making this case-by-case determination, the board shall
consider the location of the discharge with respect to state waters, the size
of the discharge, the quantity and nature of pollutants reaching state waters
and the treatment methods used at the wastewater works.
3. The permittee shall notify the department in writing
whenever he is not complying, or has grounds for anticipating he will not
comply with the requirements of subdivision 1 of this subsection. The
notification shall include a statement of reasons and a prompt schedule for
achieving compliance.
D. Lake level contingency plans. Any VPDES permit issued for
a surface water impoundment whose primary purpose is to provide cooling water
to power generators shall include a lake level contingency plan to allow
specific reductions in the flow required to be released when the water level
above the dam drops below designated levels due to drought conditions, and such
plan shall take into account and minimize any adverse effects of any release
reduction requirements on downstream users. This subsection shall not apply to
any such facility that addresses releases and flow requirements during drought
conditions in a Virginia Water Protection Permit.
E. Concentrated animal feeding operations (CAFOs). The
activities of the CAFO shall not contravene the Water Quality Standards, as
amended and adopted by the board, or any provision of the State Water Control
Law. There shall be no point source discharge of manure, litter or process
wastewater to surface waters of the state except in the case of an overflow
caused by a storm event greater than the 25-year, 24-hour storm. Agricultural storm
water stormwater discharges as defined in subdivision C 3 of
9VAC25-31-130 are permitted. Domestic sewage or industrial waste shall not be
managed under the Virginia Pollutant Discharge Elimination System General
Permit for CAFOs (9VAC25-191). Any permit issued to a CAFO shall include:
1. Requirements to develop, implement and comply with a
nutrient management plan. At a minimum, a nutrient management plan shall
include best management practices and procedures necessary to implement
applicable effluent limitations and standards. Permitted CAFOs must have their
nutrient management plans developed and implemented and be in compliance with the
nutrient management plan as a requirement of the permit. The nutrient
management plan must, to the extent applicable:
a. Ensure adequate storage of manure, litter, and process
wastewater, including procedures to ensure proper operation and maintenance of
the storage facilities;
b. Ensure proper management of mortalities (i.e., dead
animals) to ensure that they are not disposed of in a liquid manure, storm
water stormwater, or process wastewater storage or treatment system
that is not specifically designed to treat animal mortalities;
c. Ensure that clean water is diverted, as appropriate, from
the production area;
d. Prevent direct contact of confined animals with surface
waters of the state;
e. Ensure that chemicals and other contaminants handled on
site are not disposed of in any manure, litter, process wastewater, or
stormwater storage or treatment system unless specifically designed to treat
such chemicals and other contaminants;
f. Identify appropriate site specific conservation practices
to be implemented, including as appropriate buffers or equivalent practices, to
control runoff of pollutants to surface waters of the state;
g. Identify protocols for appropriate testing of manure,
litter, process wastewater and soil;
h. Establish protocols to land apply manure, litter or process
wastewater in accordance with site specific nutrient management practices that
ensure appropriate agricultural utilization of the nutrients in the manure,
litter or process wastewater; and
i. Identify specific records that will be maintained to
document the implementation and management of the minimum elements described
above.
2. Recordkeeping requirements. The permittee must create, maintain
for five years, and make available to the director upon request the following
records:
a. All applicable records identified pursuant to subdivision 1
i of this subsection;
b. In addition, all CAFOs subject to EPA Effluent Guidelines
for Feedlots (40 CFR Part 412) must comply with recordkeeping requirements as
specified in 40 CFR 412.37(b) and (c) and 40 CFR 412.47(b) and (c);
A copy of the CAFO's site-specific nutrient management plan
must be maintained on site and made available to the director upon request.
3. Requirements relating to transfer of manure or process
wastewater to other persons. Prior to transferring manure, litter or process
wastewater to other persons, large CAFOs must provide the recipient of the
manure, litter or process wastewater with the most current nutrient analysis.
The analysis provided must be consistent with the requirements of EPA Effluent
Guidelines for Feedlots (40 CFR Part 412). Large CAFOs must retain for five
years records of the date, recipient name and address, and approximate
amount of manure, litter, or process wastewater transferred to another
person.
4. Annual reporting requirements for CAFOs. The permittee must
submit an annual report to the director. As of the start date in Table 1 of
9VAC25-31-1020, all annual reports submitted in compliance with this subsection
shall be submitted electronically by the permittee to the department in
compliance with this subsection and 40 CFR Part 3 (including, in all
cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI (9VAC25-31-950 et
seq.) of this chapter. Part XI of this chapter is not intended to undo existing
requirements for electronic reporting. Prior to this date, and independent of
Part XI of this chapter, the permittee may be required to report electronically
if specified by a particular permit. The annual report must include:
a. The number and type of animals, whether in open confinement
or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds
or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers,
veal calves, sheep and lambs, horses, ducks, turkeys, other);
b. Estimated amount of total manure, litter and process
wastewater generated by the CAFO in the previous 12 months (tons/gallons);
c. Estimated amount of total manure, litter and process
wastewater transferred to other persons by the CAFO in the previous 12 months
(tons/gallons);
d. Total number of acres for land application covered by the
nutrient management plan developed in accordance with subdivision 1 of this
subsection;
e. Total number of acres under control of the CAFO that were
used for land application of manure, litter and process wastewater in the
previous 12 months;
f. Summary of all manure, litter, and process
wastewater discharges from the production area that occurred in the previous 12
months including for each discharge the date of discovery, duration of
discharge, and approximate volume;
g. A statement indicating whether the current version of the
CAFO's nutrient management plan was developed or approved by a certified
nutrient management planner; and
h. The actual crop(s) crops planted and actual yield(s)
yield for each field, the actual nitrogen and phosphorus content of the
manure, litter, and process wastewater, the results of calculations conducted
in accordance with subdivisions 5 a (2) and 5 b (4) of this subsection, and the
amount of manure, litter, and process wastewater applied to each field during
the previous 12 months; and, for any CAFO that implements a nutrient management
plan that addresses rates of application in accordance with subdivision 5 b of
this subsection, the results of any soil testing for nitrogen and phosphorus
taken during the preceding 12 months, the data used in calculations conducted
in accordance with subdivision 5 b (4) of this subsection, and the amount of
any supplemental fertilizer applied during the previous 12 months.
5. Terms of the nutrient management plan. Any permit issued to
a CAFO shall require compliance with the terms of the CAFO's site-specific
nutrient management plan. The terms of the nutrient management plan are the
information, protocols, best management practices, and other conditions in the
nutrient management plan determined by the board to be necessary to meet the
requirements of subdivision 1 of this subsection. The terms of the nutrient
management plan, with respect to protocols for land application of manure,
litter, or process wastewater required by subdivision 4 h of this subsection
and, as applicable, 40 CFR 412.4(c), shall include the fields available
for land application; field-specific rates of application properly developed,
as specified in subdivisions 5 a and b of this subsection, to ensure
appropriate agricultural utilization of the nutrients in the manure, litter, or
process wastewater; and any timing limitations identified in the nutrient
management plan concerning land application on the fields available for land
application. The terms shall address rates of application using one of the
following two approaches, unless the board specifies that only one of these
approaches may be used:
a. Linear approach. An approach that expresses rates of
application as pounds of nitrogen and phosphorus, according to the following
specifications:
(1) The terms include maximum application rates from manure,
litter, and process wastewater for each year of permit coverage, for each crop
identified in the nutrient management plan, in chemical forms determined to be
acceptable to the board, in pounds per acre, per year, for each field to be
used for land application, and certain factors necessary to determine such
rates. At a minimum, the factors that are terms shall include: the outcome of
the field-specific assessment of the potential for nitrogen and phosphorus
transport from each field; the crops to be planted in each field or any other
uses of a field such as pasture or fallow fields; the realistic yield goal for
each crop or use identified for each field; the nitrogen and phosphorus
recommendations from sources specified by the board for each crop or use
identified for each field; credits for all nitrogen in the field that will be
plant available; consideration of multi-year phosphorus application; and
accounting for all other additions of plant available nitrogen and phosphorus
to the field. In addition, the terms include the form and source of manure,
litter, and process wastewater to be land-applied; the timing and method of
land application; and the methodology by which the nutrient management plan
accounts for the amount of nitrogen and phosphorus in the manure, litter, and
process wastewater to be applied.
(2) Large CAFOs that use this approach shall calculate the
maximum amount of manure, litter, and process wastewater to be land applied at
least once each year using the results of the most recent representative
manure, litter, and process wastewater tests for nitrogen and phosphorus taken
within 12 months of the date of land application; or
b. Narrative rate approach. An approach that expresses rates
of application as a narrative rate of application that results in the amount,
in tons or gallons, of manure, litter, and process wastewater to be land
applied, according to the following specifications:
(1) The terms include maximum amounts of nitrogen and
phosphorus derived from all sources of nutrients, for each crop identified in
the nutrient management plan, in chemical forms determined to be acceptable to
the board, in pounds per acre, for each field, and certain factors necessary to
determine such amounts. At a minimum, the factors that are terms shall include:
the outcome of the field-specific assessment of the potential for nitrogen and
phosphorus transport from each field; the crops to be planted in each field or
any other uses such as pasture or fallow fields (including alternative crops
identified in accordance with subdivision 5 b (2) of this subsection); the
realistic yield goal for each crop or use identified for each field; and the
nitrogen and phosphorus recommendations from sources specified by the board for
each crop or use identified for each field. In addition, the terms include the
methodology by which the nutrient management plan accounts for the following
factors when calculating the amounts of manure, litter, and process wastewater
to be land applied: results of soil tests conducted in accordance with
protocols identified in the nutrient management plan, as required by
subdivision 1 g of this subsection; credits for all nitrogen in the field that
will be plant available; the amount of nitrogen and phosphorus in the manure,
litter, and process wastewater to be applied; consideration of multi-year
phosphorus application; accounting for all other additions of plant available
nitrogen and phosphorus to the field; the form and source of manure, litter,
and process wastewater; the timing and method of land application; and
volatilization of nitrogen and mineralization of organic nitrogen.
(2) The terms of the nutrient management plan include
alternative crops identified in the CAFO's nutrient management plan that are not
in the planned crop rotation. Where a CAFO includes alternative crops in its
nutrient management plan, the crops shall be listed by field, in addition to
the crops identified in the planned crop rotation for that field, and the
nutrient management plan shall include realistic crop yield goals and the
nitrogen and phosphorus recommendations from sources specified by the board for
each crop. Maximum amounts of nitrogen and phosphorus from all sources of
nutrients and the amounts of manure, litter, and process wastewater to be
applied shall be determined in accordance with the methodology described in
subdivision 5 b (1) of this subsection.
(3) For CAFOs using this approach, the following projections
shall be included in the nutrient management plan submitted to the board, but
are not terms of the nutrient management plan: the CAFO's planned crop
rotations for each field for the period of permit coverage; the projected
amount of manure, litter, or process wastewater to be applied; projected
credits for all nitrogen in the field that will be plant available;
consideration of multi-year phosphorus application; accounting for all other
additions of plant available nitrogen and phosphorus to the field; and the
predicted form, source, and method of application of manure, litter, and
process wastewater for each crop. Timing of application for each field, insofar
as it concerns the calculation of rates of application, is not a term of the
nutrient management plan.
(4) CAFOs that use this approach shall calculate maximum
amounts of manure, litter, and process wastewater to be land applied at least
once each year using the methodology required in subdivision 5 b (1) of this
subsection before land applying manure, litter, and process wastewater and
shall rely on the following data:
(a) A field-specific determination of soil levels of nitrogen
and phosphorus, including, for nitrogen, a concurrent determination of nitrogen
that will be plant available consistent with the methodology required by
subdivision 5 b (1) of this subsection, and for phosphorus, the results of the
most recent soil test conducted in accordance with soil testing requirements
approved by the board; and
(b) The results of most recent representative manure, litter,
and process wastewater tests for nitrogen and phosphorus taken within 12 months
of the date of land application, in order to determine the amount of nitrogen
and phosphorus in the manure, litter, and process wastewater to be applied.
9VAC25-31-220. Establishing limitations, standards, and other
permit conditions.
In addition to the conditions established under 9VAC25-31-210
A, each VPDES 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
9VAC25-31-180 B (protection period).
2. The board may authorize a discharger subject to
technology-based effluent limitations guidelines and standards in a VPDES
permit to forego sampling of a pollutant found at 40 CFR Subchapter N 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
permit and is not available during the term of the first permit issued to a
discharger. Any request for this waiver must be submitted when applying for a
reissued permit or modification of a reissued permit. The request must
demonstrate through sampling or other technical information, including
information generated during an earlier 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 permit as an express
permit condition and the reasons supporting the grant must be documented in the
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.
1. 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 permit, the board shall institute
proceedings under this chapter to modify or revoke and reissue the permit to
conform to the toxic effluent standard or prohibition.
2. Standards for sewage sludge use or disposal under § 405(d)
of the CWA and Part VI (9VAC25-31-420 et seq.) of this chapter unless those standards
have been included in a permit issued under the appropriate provisions of
Subtitle C of the Solid Waste Disposal Act (42 USC § 6901 et seq.), Part C of
Safe Drinking Water Act (42 USC § 300f et seq.), the Marine Protection,
Research, and Sanctuaries Act of 1972 (33 USC § 1401 et seq.), or the
Clean Air Act (42 USC § 4701 et seq.), or in another permit issued by
the Department of Environmental Quality or any other appropriate state agency
under another permit program approved by the administrator. When there are no
applicable standards for sewage sludge use or disposal, the permit may include
requirements developed on a case-by-case basis to protect public health and the
environment from any adverse effects which may occur from toxic pollutants in sewage
sludge. If any applicable standard for sewage sludge use or disposal is
promulgated under § 405(d) of the CWA and that standard is more stringent than
any limitation on the pollutant or practice in the permit, the board may
initiate proceedings under this chapter to modify or revoke and reissue the
permit to conform to the standard for sewage sludge use or disposal.
3. Requirements applicable to cooling water intake structures
at new facilities under § 316 (b) of the CWA, in accordance with 9VAC25-31-165.
C. Reopener clause. For any permit issued to a treatment
works treating domestic sewage (including sludge-only facilities), the board
shall include a reopener clause to incorporate any applicable standard for
sewage sludge use or disposal promulgated under § 405(d) of the CWA. The board
may promptly modify or revoke and reissue any permit containing the reopener
clause required by this subdivision if the standard for sewage sludge use or
disposal is more stringent than any requirements for sludge use or disposal in
the permit, or controls a pollutant or practice not limited in the permit.
D. 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 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 which 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 which 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 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
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 VPDES 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;
(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 permit identifies which pollutants are intended to be
controlled by the use of the effluent limitation;
(b) The fact sheet required by 9VAC25-31-280 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 permit requires all effluent and ambient monitoring
necessary to show that during the term of the permit the limit on the indicator
parameter continues to attain and maintain applicable water quality standards;
and
(d) The permit contains a reopener clause allowing the board
to modify or revoke and reissue the 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;
2. Attain or maintain a specified water quality through water
quality related effluent limits established under the law and § 302 of the
CWA;
3. Conform to the conditions of a Virginia Water Protection
Permit (VWPP) issued under the 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 law or
regulations in accordance with § 301(b)(1)(C) of the CWA;
6. Ensure consistency with the requirements of a Water Quality
Management plan approved by EPA under § 208(b) of the CWA;
7. Incorporate § 403(c) criteria under 40 CFR Part 125,
Subpart M, for ocean discharges; or
8. Incorporate alternative effluent limitations or standards
where warranted by fundamentally different factors, under 40 the CFR Part 125,
Subpart D.
E. Technology-based controls for toxic pollutants.
Limitations established under subsections subsection A, B, or D
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 which the
board determines (based on information reported in a permit application or in a
notification required by the permit or on other information) are or may be
discharged at a level greater than the level which can be achieved by the
technology-based treatment requirements appropriate to the 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 which, in the judgment of
the board, will provide treatment of the pollutants under subdivision 1 of this
subsection to the levels required by the law and 40 CFR Part 125, Subpart A.
F. A notification level which exceeds the notification level
of 9VAC25-31-200 A 1 a, b, or c, upon a petition from the 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 permittee.
G. Twenty-four-hour reporting. Pollutants for which the
permittee must report violations of maximum daily discharge limitations under
9VAC25-31-190 L 7 b (3) (24-hour reporting) shall be listed in the 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.
H. Durations for permits, as set forth in 9VAC25-31-240.
I. 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 which 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 9VAC25-31-190, subdivisions 5
through 8 of this subsection, and Part XI (9VAC25-31-950 et seq.) of this
chapter. Reporting shall be no less frequent than specified in the above
regulation;
4. To assure compliance with permit limitations, requirements
to monitor:
a. The mass (or other measurement specified in the permit) for
each pollutant limited in the permit;
b. The volume of effluent discharged from each outfall;
c. Other measurements as appropriate including pollutants in internal
waste streams; pollutants in intake water for net limitations; frequency, rate
of discharge, etc., for noncontinuous discharges; pollutants subject to
notification requirements; and pollutants in sewage sludge or other monitoring
as specified in Part VI (9VAC25-31-420 et seq.) of this chapter; or as
determined to be necessary on a case-by-case basis pursuant to the law and §
405(d)(4) of the CWA; and
d. According to test procedures approved under 40 CFR Part
136 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 permit for pollutants with no approved methods; According to
sufficiently sensitive test procedures (i.e., methods) approved under 40 CFR
Part 136 for the analysis of pollutants or pollutant parameters or required
under 40 CFR Chapter I, Subchapter N or O.
(1) For the purposes of this subdivision, a method is
"sufficiently sensitive" when:
(a) The method minimum level (ML) is at or below the level
of the effluent limit established in the permit for the measured pollutant or
pollutant parameter; or
(b) The method has the lowest ML of the analytical methods
approved under 40 CFR Part 136 or required under 40 CFR Chapter I, Subchapter N
or O for the measured pollutant or pollutant parameter.
(2) In the case of pollutants or pollutant parameters for
which there are no approved methods under 40 CFR Part 136 or methods are not
otherwise required under 40 CFR Chapter I, Subchapter N or O, monitoring shall
be conducted according to a test procedure specified in the permit for such
pollutants or pollutant parameters;
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. For sewage sludge use or
disposal practices, requirements to monitor and report results shall be
established on a case-by-case basis with a frequency dependent on the nature
and effect of the sewage sludge use or disposal practice; minimally this shall
be as specified in Part VI (9VAC25-31-420 et seq.) of this chapter (where
applicable), but in no case less than once a year. All results shall be
electronically reported in compliance with 40 CFR Part 3 (including, in
all cases, 40 CFR Part 3 Subpart D), 9VAC25-31-110, and Part XI
(9VAC25-31-950 et seq.) of this chapter;
6. Requirements to report monitoring results for storm water
stormwater discharges associated with industrial activity which 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 storm
water stormwater discharges associated with industrial activity
(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 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 storm water stormwater
discharge associated with industrial activity and evaluate whether measures to
reduce pollutant loading identified in a storm water stormwater
pollution prevention plan are adequate and properly implemented in accordance
with the terms of the 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 permit, and identifying any
incidents of noncompliance;
c. Such report and certification be signed in accordance with
9VAC25-31-110; and
d. Permits for storm water stormwater discharges
associated with industrial activity from inactive mining operations may, where
annual inspections are impracticable, require certification once every three
years by a Registered Professional Engineer that the facility is in compliance
with the permit, or alternative requirements; and
8. Permits which that do not require the
submittal of monitoring result reports at least annually shall require that the
permittee report all instances of noncompliance not reported under
9VAC25-31-190 L 1, 4, 5, 6, and 7 at least annually.
J. Pretreatment program for POTWs. Requirements for POTWs to:
1. Identify, in terms of character and volume of pollutants,
any significant indirect dischargers into the POTW subject to pretreatment
standards under § 307(b) of the CWA and Part VII (9VAC25-31-730 et seq.) of
this chapter;
2. Submit a local program when required by and in accordance
with Part VII of this chapter to assure compliance with pretreatment standards
to the extent applicable under § 307(b) of the CWA. The local program shall be
incorporated into the permit as described in Part VII of this chapter. The
program shall require all indirect dischargers to the POTW to comply with the
reporting requirements of Part VII of this chapter;
3. Provide a written technical evaluation of the need to
revise local limits under Part VII of this chapter following permit issuance or
reissuance; and
4. For POTWs which that are sludge-only
facilities, a requirement to develop a pretreatment program under Part VII of
this chapter when the board determines that a pretreatment program is necessary
to assure compliance with Part VI of this chapter.
K. Best management practices to control or abate the
discharge of pollutants when:
1. Authorized under § 304(e) of the CWA for the control of
toxic pollutants and hazardous substances from ancillary industrial activities;
2. Authorized under § 402(p) of the CWA for the control of storm
water stormwater discharges;
3. Numeric effluent limitations are infeasible; or
4. The practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of the law
and the CWA.
L. Reissued permits.
1. In the case of effluent limitations established on the
basis of § 402(a)(1)(B) of the CWA, a 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 permit, to contain effluent
limitations which are less stringent than the comparable effluent limitations
in the previous 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
permit may not be renewed, reissued, or modified to contain effluent
limitations which that are less stringent than the comparable
effluent limitations in the previous permit except in compliance with §
303(d)(4) of the CWA.
2. Exceptions. A 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 which justify the application
of a less stringent effluent limitation;
b. (1) Information is available which that was
not available at the time of permit issuance (other than revised regulations,
guidance, or test methods) and which that would have justified
the application of a less stringent effluent limitation at the time of permit
issuance; or
(2) The board determines that technical mistakes or mistaken
interpretations of law were made in issuing the permit under § 402(a)(1)(B) of
the CWA;
c. A less stringent effluent limitation is necessary because
of events over which the permittee has no control and for which there is no
reasonably available remedy;
d. The permittee has received a permit modification under the
law and §§ § 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or
316(a) of the CWA; or
e. The permittee has installed the treatment facilities
required to meet the effluent limitations in the previous 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 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 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 law or the CWA or for
reasons otherwise unrelated to water quality.
3. In no event may a permit with respect to which subdivision
2 of this subsection applies be renewed, reissued, or modified to contain an
effluent limitation which that is less stringent than required by
effluent guidelines in effect at the time the permit is renewed, reissued, or modified.
In no event may such a 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.
M. For a privately owned treatment works, any conditions
expressly applicable to any user, as a limited co-permittee, that may be
necessary in the permit issued to the treatment works to ensure compliance with
applicable requirements under this part. Alternatively, the board may issue
separate permits to the treatment works and to its users, or may require a
separate permit application from any user. The board's decision to issue a
permit with no conditions applicable to any user, to impose conditions on one
or more users, to issue separate permits, or to require separate applications,
and the basis for that decision, shall be stated in the fact sheet for the
draft permit for the treatment works.
N. Any conditions imposed in grants made by the board to
POTWs under §§ 201 and 204 of the CWA which that are reasonably
necessary for the achievement of effluent limitations under § 301 of the CWA
and the law.
O. Requirements governing the disposal of sewage sludge from
publicly owned treatment works or any other treatment works treating domestic
sewage for any use regulated by Part VI of this chapter.
P. When a permit is issued to a facility that may operate at
certain times as a means of transportation over water, a condition that the
discharge shall comply with any applicable regulations promulgated by the
secretary of the department in which the Coast Guard is operating, that
establish specifications for safe transportation, handling, carriage, and
storage of pollutants.
Q. 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 9VAC25-31-330.
9VAC25-31-280. Fact sheet.
A. A fact sheet shall be prepared for every draft permit for
a major VPDES facility or activity, for every Class I sludge management
facility, for every VPDES general permit, for every VPDES draft permit that
incorporates a variance or requires an explanation under subsection B 8 of this
section, for every draft permit that includes a biosolids land application
under 9VAC25-31-100 D 2, and for every draft permit which 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
permit. The board shall send this fact sheet to the 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 which
that is the subject of the draft permit;
2. The type and quantity of wastes, fluids, or pollutants which
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 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 permit including:
a. The beginning and ending dates of the comment period for
the draft 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
biosolids use or sewage sludge disposal, including a citation to the applicable
effluent limitation guideline, performance standard, or standard for biosolids
use or sewage sludge disposal and reasons why they are applicable or an
explanation of how the alternate effluent limitations were developed;
8. When the draft 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 internal waste streams;
c. Limitations on indicator pollutants;
d. Technology-based or sewage sludge disposal limitations set
on a case-by-case basis;
e. Limitations to meet the criteria for permit issuance under
9VAC25-31-50; or
f. Waivers from monitoring requirements granted under
9VAC25-31-220 A;
9. For every permit to be issued to a treatment works owned by
a person other than a state or municipality, an explanation of the board's
decision on regulation of users;
10. When appropriate, a sketch or detailed description of the
location of the discharge or regulated activity described in the application;
and
11. Justification of waiver of any application requirements
under 9VAC25-31-100 J or P K or Q.
9VAC25-31-380. Transfer of permits.
A. Except as provided in subsection B of this section, 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 law and the CWA.
B. Automatic transfers. As an alternative to transfers under
subsection A of this section, any VPDES permit may be automatically transferred
to a new permittee if:
1. The current 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 permittees containing a specific date for transfer of permit
responsibility, coverage, and liability between them; and
3. The board does not notify the existing permittee and the
proposed new permittee of its intent to modify or revoke and reissue the
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; and
4. The new owner or operator has demonstrated compliance
with 9VAC25-650-70, if applicable.
9VAC25-31-800. Pretreatment program requirements: development
and implementation by POTW.
A. POTWs required to develop a pretreatment program. Any POTW
(or combination of POTWs operated by the same authority) with a total design
flow greater than five million gallons per day (mgd) and receiving from
industrial users pollutants which that pass through or interfere
with the operation of the POTW or are otherwise subject to pretreatment
standards will be required to establish a POTW pretreatment program unless the
director exercises his or her option to assume local responsibilities. The
regional administrator or director may require that a POTW with a design flow
of five mgd or less develop a POTW pretreatment program if he finds that the
nature or volume of the industrial influent, treatment process upsets,
violations of POTW effluent limitations, contamination of municipal sludge,
violations of water quality standards, or other circumstances warrant in order
to prevent interference with the POTW or pass through.
B. Deadline for program approval. POTWs identified as being
required to develop a POTW pretreatment program under subsection A of this
section shall develop and submit such a program for approval as soon as
possible, but in no case later than one year after written notification from
the director of such identification. The approved program shall be in operation
within two years of the effective date of the permit. The POTW pretreatment
program shall meet the criteria set forth in subsection F of this section and
shall be administered by the POTW to ensure compliance by industrial users with
applicable pretreatment standards and requirements.
C. Incorporation of approved programs in permits. A POTW may
develop an appropriate POTW pretreatment program any time before the time limit
set forth in subsection B of this section. The POTW's VPDES permit will be
reissued or modified to incorporate the approved program as enforceable
conditions of the permit. The modification of a POTW's VPDES permit for the
purposes of incorporating a POTW pretreatment program approved in accordance
with the procedures in 9VAC25-31-830 shall be deemed a minor permit
modification subject to the procedures in 9VAC25-31-400.
D. Incorporation of compliance schedules in permits.
(Reserved.)
E. Cause for revocation and reissuance or modification of
permits. Under the authority of the law and § 402 (b)(1)(C) of the CWA, the
director may modify, or alternatively, revoke and reissue a POTW's permit in
order to:
1. Put the POTW on a compliance schedule for the development
of a POTW pretreatment program where the addition of pollutants into a POTW by
an industrial user or combination of industrial users presents a substantial
hazard to the functioning of the treatment works, quality of the receiving
waters, human health, or the environment;
2. Coordinate the issuance of § 201 construction grant with
the incorporation into a permit of a compliance schedule for POTW pretreatment
program;
3. Incorporate a modification of the permit approved under § 301(h)
or § 301(i) of the CWA;
4. Incorporate an approved POTW pretreatment program in the
POTW permit;
5. Incorporate a compliance schedule for the development of a
POTW pretreatment program in the POTW permit; or
6. Incorporate the removal credits (established under
9VAC25-31-790) in the POTW permit.
F. POTW pretreatment requirements. A POTW pretreatment
program must be based on the following legal authority and include the
following procedures. These authorities and procedures shall at all times be
fully and effectively exercised and implemented.
1. Legal authority. The POTW shall operate pursuant to legal
authority enforceable in federal, state or local courts, which authorizes or
enables the POTW to apply and to enforce the requirements of §§ 307(b), (c) and
(d), and 402(b)(8) of the CWA and any regulations implementing those sections.
Such authority may be contained in a statute or ordinances which,
ordinance, or series of contracts or joint powers agreements that the POTW
is authorized to enact, enter into or implement, and which are authorized by
state law. At a minimum, this legal authority shall enable the POTW to:
a. Deny or condition new or increased contributions of
pollutants, or changes in the nature of pollutants, to the POTW by industrial
users where such contributions do not meet applicable pretreatment standards
and requirements or where such contributions would cause the POTW to violate
its VPDES permit.
b. Require compliance with applicable pretreatment standards
and requirements by industrial users.
c. Control through permit, or order the contribution to the
POTW by each industrial user to ensure compliance with applicable pretreatment
standards and requirements. In the case of industrial users identified as
significant under 9VAC25-31-10, this control shall be achieved through
individual permits or equivalent individual control mechanisms issued to each
such user except as follows:
(1)(a) At the discretion of the POTW, this control may include
use of general control mechanisms if the following conditions are met. All of
the facilities to be covered must:
(i) Involve the same or substantially similar types of
operations;
(ii) Discharge the same types of wastes;
(iii) Require the same effluent limitations;
(iv) Require the same or similar monitoring; and
(v) In the opinion of the POTW, be more appropriately
controlled under a general control mechanism than under individual control
mechanisms.
(b) To be covered by the general control mechanism, the
significant industrial user must file a written request for coverage that
identifies its contact information, production processes, the types of wastes
generated, the location for monitoring all wastes covered by the general
control mechanism, any requests in accordance with 9VAC25-31-840 E 2 for a
monitoring waiver for a pollutant neither present nor expected to be present in
the discharge, and any other information the POTW deems appropriate. A
monitoring waiver for a pollutant neither present nor expected to be present in
the discharge is not effective in the general control mechanism until after the
POTW has provided written notice to the significant industrial user that such a
waiver request has been granted in accordance with 9VAC25-31-840 E 2. The POTW
must retain a copy of the general control mechanism, documentation to support
the POTW's determination that a specific significant industrial user meets the
criteria in subdivisions 1 c (1) (a) (i) through (v) of this subsection, and a
copy of the user's written request for coverage for three years after the
expiration of the general control mechanism. A POTW may not control a significant
industrial user through a general control mechanism where the facility is
subject to production-based categorical pretreatment standards or categorical
pretreatment standards expressed as mass of pollutant discharged per day or for
industrial users whose limits are based on the Combined Wastestream Formula or
Net/Gross calculations (9VAC25-31-780 E and 9VAC25-31-870).
(2) Both individual and general control mechanisms must be
enforceable and contain, at a minimum, the following conditions:
(a) Statement of duration (in no case more than five years);
(b) Statement of nontransferability without, at a minimum,
prior notification to the POTW and provision of a copy of the existing control
mechanism to the new owner or operator;
(c) Effluent limits, including Best Management Practices,
based on applicable general pretreatment standards in this part, categorical
pretreatment standards, local limits, and the law;
(d) Self-monitoring, sampling, reporting, notification and
recordkeeping requirements, including an identification of the pollutants to be
monitored (including the process for seeking a waiver for a pollutant neither
present nor expected to be present in the discharge in accordance with
9VAC25-31-840 E 2, or a specific waiver pollutant in the case of an individual
control mechanism), sampling location, sampling frequency, and sample type,
based on the applicable general pretreatment standards in this part,
categorical pretreatment standards, local limits, and the law;
(e) Statement of applicable civil and criminal penalties for
violation of pretreatment standards and requirements; and any applicable
compliance schedules, which may not extend beyond applicable federal deadlines.
(f) Requirements to control slug discharges, if determined by
the POTW to be necessary.
d. Require:
(1) The development of a compliance schedule by each
industrial user for the installation of technology required to meet applicable
pretreatment standards and requirements; and
(2) The submission of all notices and self-monitoring reports
from industrial users as are necessary to assess and ensure compliance by
industrial users with pretreatment standards and requirements, including but
not limited to the reports required in 9VAC25-31-840.
e. Carry out all inspection, surveillance and monitoring
procedures necessary to determine, independent of information supplied by
industrial users, compliance or noncompliance with applicable pretreatment
standards and requirements by industrial users. Representatives of the POTW
shall be authorized to enter any premises of any industrial user in which a
discharge source or treatment system is located or in which records are
required to be kept under 9VAC25-31-840 O to ensure compliance with
pretreatment standards. Such authority shall be at least as extensive as the
authority provided under § 308 of the CWA.
f. Obtain remedies for noncompliance by any industrial user
with any pretreatment standard and requirement. All POTWs shall be able to seek
injunctive relief for noncompliance by industrial users with pretreatment
standards and requirements. All POTWs shall also have authority to seek or
assess civil or criminal penalties in at least the amount of $1,000 a day for
each violation by industrial users of pretreatment standards and requirements.
Pretreatment requirements which will be enforced through the
remedies set forth in this subdivision, will include but not be limited to,
the duty to allow or carry out inspections, entry, or monitoring activities;
any rules, regulations, or orders issued by the POTW; any requirements set
forth in individual control mechanisms issued by the POTW; or any reporting
requirements imposed by the POTW or this part. The POTW shall have authority
and procedures (after informal notice to the discharger) to immediately and
effectively halt or prevent any discharge of pollutants to the POTW which
reasonably appears to present an imminent endangerment to the health or welfare
of persons. The POTW shall also have authority and procedures (which shall include
notice to the affected industrial users and an opportunity to respond) to halt
or prevent any discharge to the POTW which presents or may present an
endangerment to the environment or which threatens to interfere with the
operation of the POTW. The director shall have authority to seek judicial
relief and may also use administrative penalty authority when the POTW has
sought a monetary penalty which the director believes to be insufficient.
g. Comply with the confidentiality requirements set forth in 9VAC25-31-860.
2. Procedures. The POTW shall develop and implement procedures
to ensure compliance with the requirements of a pretreatment program. At a
minimum, these procedures shall enable the POTW to:
a. Identify and locate all possible industrial users which
that might be subject to the POTW pretreatment program. Any compilation,
index or inventory of industrial users made under this subdivision shall be
made available to the regional administrator or department upon request.
b. Identify the character and volume of pollutants contributed
to the POTW by the industrial users identified under subdivision 2 a of this
subsection. This information shall be made available to the regional
administrator or department upon request.
c. Notify industrial users identified under subdivision 2 a of
this subsection, of applicable pretreatment standards and any applicable
requirements under §§ 204(b) and 405 of the CWA and subtitles C and D of the
Resource Conservation and Recovery Act (42 USC § 6901 et seq.). Within 30 days
of approval pursuant to 9VAC25-31-800 F 6, of a list of significant industrial
users, notify each significant industrial user of its status as such and of all
requirements applicable to it as a result of such status.
d. Receive and analyze self-monitoring reports and other
notices submitted by industrial users in accordance with the self-monitoring
requirements in 9VAC25-31-840.
e. Randomly sample and analyze the effluent from industrial
users and conduct surveillance activities in order to identify, independent of
information supplied by industrial users, occasional and continuing
noncompliance with pretreatment standards. Inspect and sample the effluent from
each significant industrial user at least once a year except as otherwise
specified below.
(1) Where the POTW has authorized the industrial user subject
to a categorical pretreatment standard to forego sampling of a pollutant
regulated by a categorical pretreatment standard in accordance with
9VAC25-31-840 E the POTW must sample for the waived pollutant(s) pollutant
at least once during the term of the categorical industrial user's control
mechanism. In the event that the POTW subsequently determines that a waived
pollutant is present or is expected to be present in the industrial user's
wastewater based on changes that occur in the user's operations, the POTW must
immediately begin at least annual effluent monitoring of the user's discharge
and inspection.
(2) Where the POTW has determined that an industrial user
meets the criteria for classification as a nonsignificant categorical
industrial user, the POTW must evaluate, at least once per year, whether an
industrial user continues to meet the criteria in 9VAC25-31-10.
(3) In the case of industrial users subject to reduced
reporting requirements under 9VAC25-31-840 E, the POTW must randomly sample and
analyze the effluent from industrial users and conduct inspections at least
once every two years. If the industrial user no longer meets the conditions for
reduced reporting in 9VAC25-31-840 E, the POTW must immediately begin sampling
and inspecting the industrial user at least once a year.
f. Evaluate whether each such significant industrial user
needs a plan or other action to control slug discharges. For industrial users
identified as significant prior to November 14, 2005, this evaluation must have
been conducted at least once by October 14, 2005; additional significant
industrial users must be evaluated within one year of being designated a
significant industrial user. For purposes of this subsection, a slug discharge
is any discharge of a nonroutine, episodic nature, including but not limited
to an accidental spill or noncustomary batch discharge that has a
reasonable potential to cause interference or pass through, or in any other way
violate the POTWs regulating local limits or permit conditions. The results of
such activities shall be available to the department upon request. Significant
industrial users are required to notify the POTW immediately of any changes at
its facility affecting potential for a slug discharge. If the POTW decides that
a slug control plan is needed, the plan shall contain, at a minimum, the
following elements:
(1) Description of discharge practices, including nonroutine
batch discharges;
(2) Description of stored chemicals;
(3) Procedures for immediately notifying the POTW of slug
discharges, including any discharge that would violate a prohibition under
9VAC25-31-770 B, with procedures for follow-up written notification within five
days; and
(4) If necessary, procedures to prevent adverse impact from
accidental spills, including inspection and maintenance of storage areas,
handling and transfer of materials, loading and unloading operations, control
of plant site run-off, worker training, building of containment structures or
equipment, measures for containing toxic organic pollutants (including
solvents), and measures and equipment necessary for emergency response.
g. Investigate instances of noncompliance with pretreatment
standards and requirements, as indicated in the reports and notices required
under 9VAC25-31-840, or indicated by analysis, inspection, and surveillance
activities described in subdivision 2 e of this subsection. Sample taking and
analysis and the collection of other information shall be performed with
sufficient care to produce evidence admissible in enforcement proceedings or in
judicial actions.
h. Comply with the public participation requirements of the
Code of Virginia and 40 CFR Part 25 in the enforcement of national pretreatment
standards. These procedures shall include provisions for at least annual public
notification, in a newspaper of general circulation that provides meaningful
public notice within the jurisdiction(s) jurisdiction served by
the POTW of industrial users which, at any time during the previous 12 months
were in significant noncompliance with applicable pretreatment requirements.
For the purposes of this provision, a significant industrial user (or any
industrial user that violates subdivision 2 h (3), (4) or (8) of this
subsection is in significant noncompliance if its violation meets one or more
of the following criteria:
(1) Chronic violations of wastewater discharge limits, defined
here as those in which 66% or more of all of the measurements taken during a
six-month period exceed (by any magnitude) a numeric pretreatment standard or
requirement, including instantaneous limits, as defined by 9VAC25-31-10;
(2) Technical Review Criteria (TRC) violations, defined here
as those in which 33% or more of all of the measurements for each pollutant
parameter taken during a six-month period equal or exceed the product of the
numeric pretreatment standard or requirement, including instantaneous limits,
as defined by 9VAC25-31-10; multiplied by the applicable TRC (TRC = 1.4 for
BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH);
(3) Any other violation of a pretreatment standard or
requirement as defined by 9VAC25-31-10 (daily maximum, long-term average,
instantaneous limit, or narrative standard) that the control authority POTW
determines has caused, alone or in combination with other discharges,
interference or pass through (including endangering the health of POTW
personnel or the general public);
(4) Any discharge of a pollutant that has caused imminent
endangerment to human health, welfare or to the environment or has resulted in
the POTW's exercise of its emergency authority under subdivision 1 f of this
subsection to halt or prevent such a discharge;
(5) Failure to meet, within 90 days after the schedule date, a
compliance schedule milestone contained in a local control mechanism or
enforcement order for starting construction, completing construction, or
attaining final compliance;
(6) Failure to provide, within 45 days after the due date,
required reports such as baseline monitoring reports, 90-day compliance
reports, periodic self-monitoring reports, and reports on compliance with
compliance schedules;
(7) Failure to accurately report noncompliance; or
(8) Any other violation or group of violations that may
include a violation of Best Management Practices which the POTW determines will
adversely affect the operation or implementation of the local pretreatment
program.
3. Funding. The POTW shall have sufficient resources and
qualified personnel to carry out the authorities and procedures described in
subdivisions 1 and 2 of this subsection. In some limited circumstances, funding
and personnel may be delayed where (i) the POTW has adequate legal authority
and procedures to carry out the pretreatment program requirements described in
this section, and (ii) a limited aspect of the program does not need to be
implemented immediately (see 9VAC25-31-810 B).
4. Local limits. The POTW shall develop local limits as
required in 9VAC25-31-770 C 1, using current influent, effluent and sludge
data, or demonstrate that they are not necessary.
5. The POTW shall develop and implement an enforcement
response plan. This plan shall contain detailed procedures indicating how a
POTW will investigate and respond to instances of industrial user
noncompliance. The plan shall, at a minimum:
a. Describe how the POTW will investigate instances of
noncompliance;
b. Describe the types of escalating enforcement responses the
POTW will take in response to all anticipated types of industrial user
violations and the time periods within which responses will take place;
c. Identify (by title) the official or officials responsible
for each type of response; and
d. Adequately reflect the POTW's primary responsibility to
enforce all applicable pretreatment requirements and standards, as detailed in
subdivisions 1 and 2 of this subsection.
6. The POTW shall prepare and maintain a list of its
significant industrial users. The list shall identify the criteria in the
definition of significant industrial user in Part I (9VAC25-31-10 et seq.) of
this chapter which are applicable to each industrial user and, where
applicable, shall also indicate whether the POTW has made a determination pursuant
to subdivision 3 of that definition that such industrial user should not be
considered a significant industrial user. This list shall be submitted to the
department pursuant to 9VAC25-31-810 as a nonsubstantial program modification
pursuant to 9VAC25-31-900 D. Modifications to the list shall be submitted to
the department pursuant to 9VAC25-31-840 I 1.
G. A POTW that chooses to receive electronic documents must
satisfy the requirements of 40 CFR Part 3 (electronic reporting).
VA.R. Doc. No. R21-6247; Filed July 30, 2020, 6:33 a.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Fast-Track Regulation
Title of Regulation: 9VAC25-80. General Regulations
under State Water Control Law - Requirement No. 1 (repealing 9VAC25-80-10).
Statutory Authority: §§ 62.1-44.3 and 62.1-44.15 of the
Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105,
Richmond, VA 23218, telephone (803) 698-4238, or email melissa.porterfield@deq.virginia.gov.
Basis: The State Water Control Board adopted this
regulation under the authority of § 62.1-44.15 of the Code of Virginia. Section
62.1-44.19 A of the Code of Virginia requires an owner to file an application
for a certificate with the board before they "erect, construct, open,
expand or operate a sewerage system or sewage treatment works which will have a
potential discharge or actual discharge to state waters."
Purpose: A periodic review of the General Regulations
Under State Water Control Board - Requirement 1 (9VAC25-80) was conducted in
2019. The result of the periodic review was to repeal this regulation since it
is no longer necessary. Under the Sewage Collection and Treatment (SCAT)
Regulations, no person shall construct, expand, or modify a sewerage system or
sewage treatment works except in compliance with a Certificate to Construct
from the department and in accordance with the detailed standards contained
within the regulations. As a result, the more generalized requirements of
9VAC25-80 are no longer needed and can be repealed. The amendments protect
public health, safety, or welfare by removing an unnecessary regulation.
Rationale for Using Fast-Track Rulemaking Process: A
periodic review of the General Regulations Under State Water Control Board -
Requirement 1 (9VAC25-80) was conducted in 2019. The result of the periodic
review was to repeal this regulation since it is no longer necessary and
therefore the action is uncontroversial.
Substance: The entire regulation, which has only one
section, is being repealed.
Issues: The primary advantage to the regulated
community, public, and the Commonwealth is the removal of a regulation that
contains general requirements that are included in another regulation. There
are no disadvantages to the regulated community, public, or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Water Control Board (Board) proposes to repeal 9VAC25-80 General Regulations
Under State Water Control Law - Requirement No. 1 (General Regulations).
Background. The Board's 9VAC25-790 Sewage Collection and
Treatment Regulations (SCAT Regulations)1 became effective on
February 12, 2004. Under the SCAT Regulations, no person shall construct,
expand, or modify a sewerage system or sewage treatment works except in
compliance with a Certificate to Construct from the Department of Environmental
Quality and in accordance with the detailed standards contained within the
regulation. As a result, the more generalized requirements in the General
Regulations became superfluous.
A periodic review of the General Regulations was conducted in
2019.2 The result of the periodic review was to repeal this
regulation since it is no longer necessary.
Estimated Benefits and Costs. The proposed repeal of the
General Regulations would have no impact beyond the benefit of reducing
potential confusion for readers of the regulation.
Businesses and Other Entities Affected. The proposed repeal
would affect readers of the regulation. No costs would be introduced.
Small Businesses3 Affected. The proposed repeal does
not appear to substantively affect small businesses.
Localities4 Affected.5 The proposed
repeal does not appear to substantively affect localities and does not
introduce costs for local governments.
Projected Impact on Employment. The proposed repeal does not
affect total employment.
Effects on the Use and Value of Private Property. The proposed
repeal does not appear to substantively affect the use and value of private
property or real estate development costs.
__________________________
1See https://law.lis.virginia.gov/admincode/title9/agency25/chapter790/
2See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1780
3Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
4"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
5§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
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:
A periodic review of General Regulations under State Water
Control Board - Requirement 1 (9VAC25-80) found the chapter should be repealed
as unnecessary. The Sewage Collection and Treatment (SCAT) Regulations
(9VAC25-790), which became effective on February 12, 2004, and contain detailed
requirements for sewerage system or sewage treatment works certification,
replace the more generalized requirements of 9VAC25-80. Therefore, this action
repeals 9VAC25-80.
VA.R. Doc. No. R21-6150; Filed August 10, 2020, 3:24 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY
Fast-Track Regulation
Title of Regulation: 18VAC30-21. Regulations
Governing Audiology and Speech-Language Pathology (amending 18VAC30-21-40).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Leslie L. Knachel, Executive Director,
Board of Audiology and Speech-Language Pathology, 9960 Mayland Drive, Suite
300, Richmond, VA 23233, telephone (804) 597-4130, FAX (804) 527-4471, or email
audbd@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board of
Audio and Speech-Language Pathology the authority to promulgate regulations to
administer the regulatory system. The specific mandate for collection of a
handling fee is found in § 2.2-4805 of the Code of Virginia.
Purpose: The rationale for the regulatory change is
compliance with the Virginia Debt Collection Act in which the General Assembly
has determined that the cost for handling returned checks or dishonored credit
or debit card is $50. The board has the responsibility of licensing competent
practitioners and disciplining those who are found in violation of law or
regulation in order to protect the health and safety of the public. As a
non-general fund agency, the board must charge fees sufficient to cover its
expenditures related to its statutory responsibility to protect the public.
Rationale for Using Fast-Track Rulemaking Process: The
Office of the Comptroller has advised the department that the costs for
handling a returned check or dishonored credit card or debit card payment is
$50, as set forth in § 2.2-4805 of the Code of Virginia. Therefore, all board
regulations are being amended to delete the returned check fee of $35 and
replace it with a handling fee of $50. The Office of the Attorney General
concurs with amending regulations accordingly but advised that it is not an
exempt action.
The rulemaking is concurring with financial policy of the
Commonwealth and is not expected to be controversial. It is appropriate for a
fast-track rulemaking action because it is consistent with actions by all other
boards at the department and is not expected to be controversial.
Substance: All board regulations are being amended to
delete the returned check fee of $35 and replace it with a handling fee of $50
for a returned check, dishonored credit card, or dishonored debit card.
Issues: There are no primary advantages or disadvantages
to the public.
The primary advantage to the department is compliance with
auditors from the Office of the Comptroller.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Audiology and Speech-Language Pathology (Board) proposes to amend 18VAC30-20
Regulations Governing the Practice of Audiology and Speech-Language Pathology
to state that the handling fee for a returned check or dishonored credit card
or debit card is $50, replacing a current $35 charge.
Background. Code of Virginia § 2.2-614.1 specifies that:
If any check or other means of payment tendered to a public
body in the course of its duties is not paid by the financial institution on
which it is drawn, because of insufficient funds in the account of the drawer,
no account is in the name of the drawer, or the account of the drawer is
closed, and the check or other means of payment is returned to the public body
unpaid, the amount thereof shall be charged to the person on whose account it
was received, and his liability and that of his sureties, shall be as if he had
never offered any such payment. A penalty of $35 or the amount of any costs,
whichever is greater, shall be added to such amount.
Based on this Code provision, the current regulations include a
$35 returned check charge.
On the other hand, Code of Virginia § 2.2-4805 specifies that
"Returned checks or dishonored credit card or debit card payments shall
incur a handling fee of $50 unless a higher amount is authorized by statute to
be added to the principal account balance." According to the Department of
Health Professions (DHP), the Office of the Attorney General has advised that
the handling fee of $50 in Virginia Code 2.2-4805 governs.
Estimated Benefits and Costs. Based on the view of the Office
of the Attorney General that Virginia Code 2.2-4805 prevails, the fee by law
for a returned check or dishonored credit card or debit card is $50. The
Board's proposal therefore conforms the regulation to current law. DHP has
indicated that in practice they will continue to charge the $35 fee until this
proposed regulatory action becomes effective. The services provided by DHP are
funded by the fees paid by the regulated individuals and entities. To the
extent that the $50 fee more accurately represents the cost incurred by DHP,
the proposed change may be beneficial in that the cost would need not be
subsidized by other regulants who did not cause the cost to be incurred.
Businesses and Other Entities Affected. The proposal pertains
to fee-paying individuals regulated by the Board. As of December 31, 2019,
there were 558 audiologists, 464 school speech pathologists, and 4,528 speech
pathologists licensed by the Board. If any of these individuals have a check
returned or a credit card or debit card dishonored, the proposal would increase
their cost by $15. Since adverse impact is indicated if there is any increase
in net cost or reduction in net revenue for any entity, even if the benefits of
the proposal exceed the costs for all entities combined, adverse impact is
indicated for this action.
Small Businesses1 Affected: The proposed amendment
does not appear to substantively affect small businesses.
Localities2 Affected.3 The proposal does
not disproportionately affect any particular localities or introduce costs for
local governments.
Projected Impact on Employment. The proposal does not affect
employment.
Effects on the Use and Value of Private Property. The proposal
does not substantially affect the use and value of private property or real
estate development costs.
_____________________________
1Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
2"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
3§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Audiology and Speech-Language Pathology concurs with the analysis of the
Department of Planning and Budget.
Summary:
The amendments replace the returned check fee of $35 with a
fee of $50 for handling a returned check or dishonored credit card or debit
card payment in compliance with § 2.2-4805 of the Code of Virginia.
18VAC30-21-40. Fees required.
A. The following fees shall be paid as applicable for
licensure:
1. Application for audiology or
speech-language pathology license
|
$135
|
2. Application for school
speech-language pathology license
|
$70
|
3. Verification of licensure
requests from other states
|
$20
|
4. Annual renewal of audiology
or speech-language pathology license
|
$75
|
5. Late renewal of audiology or
speech-language pathology license
|
$25
|
6. Annual renewal of school
speech-language pathology license
|
$40
|
7. Late renewal of school
speech-language pathology license
|
$15
|
8. Reinstatement of audiology or
speech-language pathology license
|
$135
|
9. Reinstatement of school
speech-language pathology license
|
$70
|
10. Duplicate wall certificate
|
$25
|
11. Duplicate license
|
$5
|
12. Returned Handling
fee for returned check or dishonored credit card or debit card
|
$35 $50
|
13. Inactive license renewal for
audiology or speech-language pathology
|
$40
|
14. Inactive license renewal for
school speech-language pathology
|
$20
|
15. Application for provisional
license
|
$50
|
16. Renewal of provisional
license
|
$25
|
B. Fees shall be made payable to the Treasurer of Virginia
and shall not be refunded once submitted.
C. The renewal fees due by December 31, 2018, shall be as
follows:
|
1. Annual renewal of audiology or speech-language pathology
license
|
$55
|
|
2. Annual renewal of school speech-language pathology
license
|
$30
|
VA.R. Doc. No. R21-6171; Filed August 6, 2020, 1:49 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF DENTISTRY
Fast-Track Regulation
Titles of Regulations: 18VAC60-21. Regulations
Governing the Practice of Dentistry (amending 18VAC60-21-40).
18VAC60-25. Regulations Governing the Practice of Dental Hygiene (amending 18VAC60-25-30).
18VAC60-30. Regulations Governing the Practice of Dental
Assistants (amending 18VAC60-30-30).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Sandra Reen, Executive Director, Board
of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4437, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board of
Dentistry the authority to promulgate regulations to administer the regulatory
system. The specific mandate for collection of a handling fee is found in § 2.2-4805
of the Virginia Debt Collection Act.
Purpose: The amendments conform the regulation to the
Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia, in
which the General Assembly has determined that the cost for handling returned
checks, dishonored credit cards, or dishonored debit cards is $50. The
department and its regulatory boards license and discipline health care
practitioners with the mission of protecting the health and safety of the
public, which must be supported by licensing and miscellaneous fees.
Rationale for Using Fast-Track Rulemaking Process: The
rulemaking is concurring with the financial policy of the Commonwealth and is
not expected to be controversial.
Substance: Fees are being amended to replace the
returned check fee of $35 with a handling fee of $50 for a returned check,
dishonored credit card, or dishonored debit card.
Issues: There are no primary advantages or disadvantages
to the public. The primary advantage to the department is compliance with
auditors from the Office of the Comptroller. There are no disadvantages to the
agency or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Dentistry (Board) proposes to amend 18VAC60-21 Regulations Governing the
Practice of Dentistry, 18VAC60-25 Regulations Governing the Practice of Dental
Hygienists, and 18VAC60-30 Regulations Governing the Practice of Dental
Assistants to state that the handling fee for a returned check or dishonored
credit card or debit card is $50, replacing a current $35 charge.
Background. Code of Virginia § 2.2-614.1 specifies that:
If any check or other means of payment tendered to a public
body in the course of its duties is not paid by the financial institution on
which it is drawn, because of insufficient funds in the account of the drawer,
no account is in the name of the drawer, or the account of the drawer is
closed, and the check or other means of payment is returned to the public body
unpaid, the amount thereof shall be charged to the person on whose account it
was received, and his liability and that of his sureties, shall be as if he had
never offered any such payment. A penalty of $35 or the amount of any costs,
whichever is greater, shall be added to such amount.
Based on this Code provision, the current regulations include a
$35 returned check charge.
On the other hand, Code of Virginia § 2.2-4805 specifies that
"Returned checks or dishonored credit card or debit card payments shall
incur a handling fee of $50 unless a higher amount is authorized by statute to
be added to the principal account balance." According to the Department of
Health Professions (DHP), the Office of the Attorney General has advised that
the handling fee of $50 in Virginia Code 2.2-4805 governs.
Estimated Benefits and Costs. Based on the view of the Office
of the Attorney General that Virginia Code § 2.2-4805 prevails, the fee by law
for a returned check or dishonored credit card or debit card is $50. The
Board's proposal therefore conforms the regulations to current law. DHP has
indicated that in practice they will continue to charge the $35 fee until this
proposed regulatory action becomes effective. The services provided by DHP are
funded by the fees paid by the regulated individuals and entities. To the
extent that the $50 fee more accurately represents the cost incurred by DHP,
the proposed change may be beneficial in that the cost would need not be
subsidized by other regulants who did not cause the cost to be incurred.
Businesses and Other Entities Affected. The proposal pertains
to fee-paying individuals and entities regulated by the Board. As of September
30, 2019, there were 7,492 dentists, 10 dental full-time faculty, 7 volunteer
dentists, 58 temporary residents, 270 oral maxillofacial surgeons, 6,028 dental
hygienists, 1 volunteer dental hygienist, 32 dental assistants II, and 12
mobile dental facilities. The Board does not directly regulate dental
practices. If any of these individuals or entities have a check returned or a
credit card or debit card dishonored, the proposal would increase their cost by
$15. Since adverse impact is indicated if there is any increase in net cost or
reduction in net revenue for any entity, even if the benefits of the proposal
exceed the costs for all entities combined, adverse impact is indicated for
this action.
Small Businesses1 Affected:
Types and Estimated Number of Small Businesses Affected: As
stated, the Board does not directly regulate dental practices; with one
exception, all fees are charged to individuals. The one exception is the 12
mobile dental facilities. No direct information is available on their size, but
all would likely qualify for the statutory definition of a small business.2
Costs and Other Effects: If any of the mobile dental facilities
were to have a check returned or a credit card or debit card dishonored, the
proposal would increase their cost by $15.
Alternative Method that Minimizes Adverse Impact: There are no
clear alternative methods that both reduce adverse impact and meet the intended
policy goals.
Localities3 Affected.4 The proposal does
not disproportionately affect any particular localities or introduce costs for
local governments.
Projected Impact on Employment. The proposal does not affect
employment.
Effects on the Use and Value of Private Property. The proposal
does not substantially affect the use and value of private property or real
estate development costs.
________________________
1Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
2Ibid
3"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
4§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Dentistry concurs with the economic impact analysis of the Department of
Planning and Budget.
Summary:
The amendments replace the returned check fee of $35 with a
fee of $50 for handling a returned check or dishonored credit card or debit
card payment in compliance with § 2.2-4805 of the Code of Virginia.
18VAC60-21-40. Required fees.
A. Application/registration fees.
1. Dental license by examination
|
$400
|
2. Dental license by credentials
|
$500
|
3. Dental restricted teaching license
|
$285
|
4. Dental faculty license
|
$400
|
5. Dental temporary resident's license
|
$60
|
6. Restricted volunteer license
|
$25
|
7. Volunteer exemption registration
|
$10
|
8. Oral maxillofacial surgeon registration
|
$175
|
9. Cosmetic procedures certification
|
$225
|
10. Mobile clinic/portable operation
|
$250
|
11. Moderate sedation permit
|
$100
|
12. Deep sedation/general anesthesia permit
|
$100
|
B. Renewal fees.
1. Dental license - active
|
$285
|
2. Dental license - inactive
|
$145
|
3. Dental temporary resident's license
|
$35
|
4. Restricted volunteer license
|
$15
|
5. Oral maxillofacial surgeon registration
|
$175
|
6. Cosmetic procedures certification
|
$100
|
7. Moderate sedation permit
|
$100
|
8. Deep sedation/general anesthesia permit
|
$100
|
C. Late fees.
1. Dental license - active
|
$100
|
2. Dental license - inactive
|
$50
|
3. Dental temporary resident's license
|
$15
|
4. Oral maxillofacial surgeon registration
|
$55
|
5. Cosmetic procedures certification
|
$35
|
6. Moderate sedation permit
|
$35
|
7. Deep sedation/general anesthesia permit
|
$35
|
D. Reinstatement fees.
1. Dental license - expired
|
$500
|
2. Dental license - suspended
|
$750
|
3. Dental license - revoked
|
$1000
|
4. Oral maxillofacial surgeon registration
|
$350
|
5. Cosmetic procedures certification
|
$225
|
E. Document fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. License certification
|
$35
|
F. Other fees.
1. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
2. Practice inspection fee
|
$350
|
G. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
H. For the renewal of an active dental license in 2021, fees
shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$150
$165
$180
$195
$210
$225
$240
$255
$270
$285
$300
$315
|
18VAC60-25-30. Required fees.
A. Application fees.
1. License by examination
|
$175
|
2. License by credentials
|
$275
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725 of the Code
|
$175
|
4. Temporary permit pursuant to § 54.1-2726 of the Code
|
$175
|
5. Restricted volunteer license
|
$25
|
6. Volunteer exemption registration
|
$10
|
B. Renewal fees.
1. Active license
|
$75
|
2. Inactive license
|
$40
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$75
|
4. Temporary permit pursuant to § 54.1-2726
|
$75
|
C. Late fees.
1. Active license
|
$25
|
2. Inactive license
|
$15
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$25
|
4. Temporary permit pursuant to § 54.1-2726
|
$25
|
D. Reinstatement fees.
1. Expired license
|
$200
|
2. Suspended license
|
$400
|
3. Revoked license
|
$500
|
E. Administrative fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. Certification of licensure
|
$35
|
4. Returned Handling fee for returned check or
dishonored credit or debit card
|
$35 $50
|
F. No fee shall be refunded or applied for any purpose other
than the purpose for which the fee was submitted.
G. For the renewal of an active dental hygienist license in
2021, fees shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$40
$44
$48
$52
$56
$60
$64
$68
$72
$76
$80
$84
|
18VAC60-30-30. Required fees.
A. Initial registration fee.
|
$100
|
B. Renewal fees.
|
|
1. Dental assistant II registration - active
|
$50
|
2. Dental assistant II registration - inactive
|
$25
|
C. Late fees.
|
|
1. Dental assistant II registration - active
|
$20
|
2. Dental assistant II registration - inactive
|
$10
|
D. Reinstatement fees.
|
|
1. Expired registration
|
$125
|
2. Suspended registration
|
$250
|
3. Revoked registration
|
$300
|
E. Administrative fees.
|
|
1. Duplicate wall certificate
|
$60
|
2. Duplicate registration
|
$20
|
3. Registration verification
|
$35
|
4. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
F. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
G. For the renewal of an active dental assistant II
registration in 2021, the fees for renewal of an active dental assistant II
registration shall be prorated according to the registrant's birth month as
follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$30
$33
$36
$39
$42
$45
$48
$51
$54
$57
$60
$63
|
VA.R. Doc. No. R21-5764; Filed August 6, 2020, 1:59 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF DENTISTRY
Fast-Track Regulation
Titles of Regulations: 18VAC60-21. Regulations
Governing the Practice of Dentistry (amending 18VAC60-21-40).
18VAC60-25. Regulations Governing the Practice of Dental Hygiene (amending 18VAC60-25-30).
18VAC60-30. Regulations Governing the Practice of Dental
Assistants (amending 18VAC60-30-30).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Sandra Reen, Executive Director, Board
of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4437, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board of
Dentistry the authority to promulgate regulations to administer the regulatory
system. The specific mandate for collection of a handling fee is found in § 2.2-4805
of the Virginia Debt Collection Act.
Purpose: The amendments conform the regulation to the
Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia, in
which the General Assembly has determined that the cost for handling returned
checks, dishonored credit cards, or dishonored debit cards is $50. The
department and its regulatory boards license and discipline health care
practitioners with the mission of protecting the health and safety of the
public, which must be supported by licensing and miscellaneous fees.
Rationale for Using Fast-Track Rulemaking Process: The
rulemaking is concurring with the financial policy of the Commonwealth and is
not expected to be controversial.
Substance: Fees are being amended to replace the
returned check fee of $35 with a handling fee of $50 for a returned check,
dishonored credit card, or dishonored debit card.
Issues: There are no primary advantages or disadvantages
to the public. The primary advantage to the department is compliance with
auditors from the Office of the Comptroller. There are no disadvantages to the
agency or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Dentistry (Board) proposes to amend 18VAC60-21 Regulations Governing the
Practice of Dentistry, 18VAC60-25 Regulations Governing the Practice of Dental
Hygienists, and 18VAC60-30 Regulations Governing the Practice of Dental
Assistants to state that the handling fee for a returned check or dishonored
credit card or debit card is $50, replacing a current $35 charge.
Background. Code of Virginia § 2.2-614.1 specifies that:
If any check or other means of payment tendered to a public
body in the course of its duties is not paid by the financial institution on
which it is drawn, because of insufficient funds in the account of the drawer,
no account is in the name of the drawer, or the account of the drawer is
closed, and the check or other means of payment is returned to the public body
unpaid, the amount thereof shall be charged to the person on whose account it
was received, and his liability and that of his sureties, shall be as if he had
never offered any such payment. A penalty of $35 or the amount of any costs,
whichever is greater, shall be added to such amount.
Based on this Code provision, the current regulations include a
$35 returned check charge.
On the other hand, Code of Virginia § 2.2-4805 specifies that
"Returned checks or dishonored credit card or debit card payments shall
incur a handling fee of $50 unless a higher amount is authorized by statute to
be added to the principal account balance." According to the Department of
Health Professions (DHP), the Office of the Attorney General has advised that
the handling fee of $50 in Virginia Code 2.2-4805 governs.
Estimated Benefits and Costs. Based on the view of the Office
of the Attorney General that Virginia Code § 2.2-4805 prevails, the fee by law
for a returned check or dishonored credit card or debit card is $50. The
Board's proposal therefore conforms the regulations to current law. DHP has
indicated that in practice they will continue to charge the $35 fee until this
proposed regulatory action becomes effective. The services provided by DHP are
funded by the fees paid by the regulated individuals and entities. To the
extent that the $50 fee more accurately represents the cost incurred by DHP,
the proposed change may be beneficial in that the cost would need not be
subsidized by other regulants who did not cause the cost to be incurred.
Businesses and Other Entities Affected. The proposal pertains
to fee-paying individuals and entities regulated by the Board. As of September
30, 2019, there were 7,492 dentists, 10 dental full-time faculty, 7 volunteer
dentists, 58 temporary residents, 270 oral maxillofacial surgeons, 6,028 dental
hygienists, 1 volunteer dental hygienist, 32 dental assistants II, and 12
mobile dental facilities. The Board does not directly regulate dental
practices. If any of these individuals or entities have a check returned or a
credit card or debit card dishonored, the proposal would increase their cost by
$15. Since adverse impact is indicated if there is any increase in net cost or
reduction in net revenue for any entity, even if the benefits of the proposal
exceed the costs for all entities combined, adverse impact is indicated for
this action.
Small Businesses1 Affected:
Types and Estimated Number of Small Businesses Affected: As
stated, the Board does not directly regulate dental practices; with one
exception, all fees are charged to individuals. The one exception is the 12
mobile dental facilities. No direct information is available on their size, but
all would likely qualify for the statutory definition of a small business.2
Costs and Other Effects: If any of the mobile dental facilities
were to have a check returned or a credit card or debit card dishonored, the
proposal would increase their cost by $15.
Alternative Method that Minimizes Adverse Impact: There are no
clear alternative methods that both reduce adverse impact and meet the intended
policy goals.
Localities3 Affected.4 The proposal does
not disproportionately affect any particular localities or introduce costs for
local governments.
Projected Impact on Employment. The proposal does not affect
employment.
Effects on the Use and Value of Private Property. The proposal
does not substantially affect the use and value of private property or real
estate development costs.
________________________
1Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
2Ibid
3"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
4§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Dentistry concurs with the economic impact analysis of the Department of
Planning and Budget.
Summary:
The amendments replace the returned check fee of $35 with a
fee of $50 for handling a returned check or dishonored credit card or debit
card payment in compliance with § 2.2-4805 of the Code of Virginia.
18VAC60-21-40. Required fees.
A. Application/registration fees.
1. Dental license by examination
|
$400
|
2. Dental license by credentials
|
$500
|
3. Dental restricted teaching license
|
$285
|
4. Dental faculty license
|
$400
|
5. Dental temporary resident's license
|
$60
|
6. Restricted volunteer license
|
$25
|
7. Volunteer exemption registration
|
$10
|
8. Oral maxillofacial surgeon registration
|
$175
|
9. Cosmetic procedures certification
|
$225
|
10. Mobile clinic/portable operation
|
$250
|
11. Moderate sedation permit
|
$100
|
12. Deep sedation/general anesthesia permit
|
$100
|
B. Renewal fees.
1. Dental license - active
|
$285
|
2. Dental license - inactive
|
$145
|
3. Dental temporary resident's license
|
$35
|
4. Restricted volunteer license
|
$15
|
5. Oral maxillofacial surgeon registration
|
$175
|
6. Cosmetic procedures certification
|
$100
|
7. Moderate sedation permit
|
$100
|
8. Deep sedation/general anesthesia permit
|
$100
|
C. Late fees.
1. Dental license - active
|
$100
|
2. Dental license - inactive
|
$50
|
3. Dental temporary resident's license
|
$15
|
4. Oral maxillofacial surgeon registration
|
$55
|
5. Cosmetic procedures certification
|
$35
|
6. Moderate sedation permit
|
$35
|
7. Deep sedation/general anesthesia permit
|
$35
|
D. Reinstatement fees.
1. Dental license - expired
|
$500
|
2. Dental license - suspended
|
$750
|
3. Dental license - revoked
|
$1000
|
4. Oral maxillofacial surgeon registration
|
$350
|
5. Cosmetic procedures certification
|
$225
|
E. Document fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. License certification
|
$35
|
F. Other fees.
1. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
2. Practice inspection fee
|
$350
|
G. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
H. For the renewal of an active dental license in 2021, fees
shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$150
$165
$180
$195
$210
$225
$240
$255
$270
$285
$300
$315
|
18VAC60-25-30. Required fees.
A. Application fees.
1. License by examination
|
$175
|
2. License by credentials
|
$275
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725 of the Code
|
$175
|
4. Temporary permit pursuant to § 54.1-2726 of the Code
|
$175
|
5. Restricted volunteer license
|
$25
|
6. Volunteer exemption registration
|
$10
|
B. Renewal fees.
1. Active license
|
$75
|
2. Inactive license
|
$40
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$75
|
4. Temporary permit pursuant to § 54.1-2726
|
$75
|
C. Late fees.
1. Active license
|
$25
|
2. Inactive license
|
$15
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$25
|
4. Temporary permit pursuant to § 54.1-2726
|
$25
|
D. Reinstatement fees.
1. Expired license
|
$200
|
2. Suspended license
|
$400
|
3. Revoked license
|
$500
|
E. Administrative fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. Certification of licensure
|
$35
|
4. Returned Handling fee for returned check or
dishonored credit or debit card
|
$35 $50
|
F. No fee shall be refunded or applied for any purpose other
than the purpose for which the fee was submitted.
G. For the renewal of an active dental hygienist license in
2021, fees shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$40
$44
$48
$52
$56
$60
$64
$68
$72
$76
$80
$84
|
18VAC60-30-30. Required fees.
A. Initial registration fee.
|
$100
|
B. Renewal fees.
|
|
1. Dental assistant II registration - active
|
$50
|
2. Dental assistant II registration - inactive
|
$25
|
C. Late fees.
|
|
1. Dental assistant II registration - active
|
$20
|
2. Dental assistant II registration - inactive
|
$10
|
D. Reinstatement fees.
|
|
1. Expired registration
|
$125
|
2. Suspended registration
|
$250
|
3. Revoked registration
|
$300
|
E. Administrative fees.
|
|
1. Duplicate wall certificate
|
$60
|
2. Duplicate registration
|
$20
|
3. Registration verification
|
$35
|
4. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
F. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
G. For the renewal of an active dental assistant II
registration in 2021, the fees for renewal of an active dental assistant II
registration shall be prorated according to the registrant's birth month as
follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$30
$33
$36
$39
$42
$45
$48
$51
$54
$57
$60
$63
|
VA.R. Doc. No. R21-5764; Filed August 6, 2020, 1:59 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF DENTISTRY
Fast-Track Regulation
Titles of Regulations: 18VAC60-21. Regulations
Governing the Practice of Dentistry (amending 18VAC60-21-40).
18VAC60-25. Regulations Governing the Practice of Dental Hygiene (amending 18VAC60-25-30).
18VAC60-30. Regulations Governing the Practice of Dental
Assistants (amending 18VAC60-30-30).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Sandra Reen, Executive Director, Board
of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4437, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board of
Dentistry the authority to promulgate regulations to administer the regulatory
system. The specific mandate for collection of a handling fee is found in § 2.2-4805
of the Virginia Debt Collection Act.
Purpose: The amendments conform the regulation to the
Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia, in
which the General Assembly has determined that the cost for handling returned
checks, dishonored credit cards, or dishonored debit cards is $50. The
department and its regulatory boards license and discipline health care
practitioners with the mission of protecting the health and safety of the
public, which must be supported by licensing and miscellaneous fees.
Rationale for Using Fast-Track Rulemaking Process: The
rulemaking is concurring with the financial policy of the Commonwealth and is
not expected to be controversial.
Substance: Fees are being amended to replace the
returned check fee of $35 with a handling fee of $50 for a returned check,
dishonored credit card, or dishonored debit card.
Issues: There are no primary advantages or disadvantages
to the public. The primary advantage to the department is compliance with
auditors from the Office of the Comptroller. There are no disadvantages to the
agency or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Dentistry (Board) proposes to amend 18VAC60-21 Regulations Governing the
Practice of Dentistry, 18VAC60-25 Regulations Governing the Practice of Dental
Hygienists, and 18VAC60-30 Regulations Governing the Practice of Dental
Assistants to state that the handling fee for a returned check or dishonored
credit card or debit card is $50, replacing a current $35 charge.
Background. Code of Virginia § 2.2-614.1 specifies that:
If any check or other means of payment tendered to a public
body in the course of its duties is not paid by the financial institution on
which it is drawn, because of insufficient funds in the account of the drawer,
no account is in the name of the drawer, or the account of the drawer is
closed, and the check or other means of payment is returned to the public body
unpaid, the amount thereof shall be charged to the person on whose account it
was received, and his liability and that of his sureties, shall be as if he had
never offered any such payment. A penalty of $35 or the amount of any costs,
whichever is greater, shall be added to such amount.
Based on this Code provision, the current regulations include a
$35 returned check charge.
On the other hand, Code of Virginia § 2.2-4805 specifies that
"Returned checks or dishonored credit card or debit card payments shall
incur a handling fee of $50 unless a higher amount is authorized by statute to
be added to the principal account balance." According to the Department of
Health Professions (DHP), the Office of the Attorney General has advised that
the handling fee of $50 in Virginia Code 2.2-4805 governs.
Estimated Benefits and Costs. Based on the view of the Office
of the Attorney General that Virginia Code § 2.2-4805 prevails, the fee by law
for a returned check or dishonored credit card or debit card is $50. The
Board's proposal therefore conforms the regulations to current law. DHP has
indicated that in practice they will continue to charge the $35 fee until this
proposed regulatory action becomes effective. The services provided by DHP are
funded by the fees paid by the regulated individuals and entities. To the
extent that the $50 fee more accurately represents the cost incurred by DHP,
the proposed change may be beneficial in that the cost would need not be
subsidized by other regulants who did not cause the cost to be incurred.
Businesses and Other Entities Affected. The proposal pertains
to fee-paying individuals and entities regulated by the Board. As of September
30, 2019, there were 7,492 dentists, 10 dental full-time faculty, 7 volunteer
dentists, 58 temporary residents, 270 oral maxillofacial surgeons, 6,028 dental
hygienists, 1 volunteer dental hygienist, 32 dental assistants II, and 12
mobile dental facilities. The Board does not directly regulate dental
practices. If any of these individuals or entities have a check returned or a
credit card or debit card dishonored, the proposal would increase their cost by
$15. Since adverse impact is indicated if there is any increase in net cost or
reduction in net revenue for any entity, even if the benefits of the proposal
exceed the costs for all entities combined, adverse impact is indicated for
this action.
Small Businesses1 Affected:
Types and Estimated Number of Small Businesses Affected: As
stated, the Board does not directly regulate dental practices; with one
exception, all fees are charged to individuals. The one exception is the 12
mobile dental facilities. No direct information is available on their size, but
all would likely qualify for the statutory definition of a small business.2
Costs and Other Effects: If any of the mobile dental facilities
were to have a check returned or a credit card or debit card dishonored, the
proposal would increase their cost by $15.
Alternative Method that Minimizes Adverse Impact: There are no
clear alternative methods that both reduce adverse impact and meet the intended
policy goals.
Localities3 Affected.4 The proposal does
not disproportionately affect any particular localities or introduce costs for
local governments.
Projected Impact on Employment. The proposal does not affect
employment.
Effects on the Use and Value of Private Property. The proposal
does not substantially affect the use and value of private property or real
estate development costs.
________________________
1Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
2Ibid
3"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
4§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Dentistry concurs with the economic impact analysis of the Department of
Planning and Budget.
Summary:
The amendments replace the returned check fee of $35 with a
fee of $50 for handling a returned check or dishonored credit card or debit
card payment in compliance with § 2.2-4805 of the Code of Virginia.
18VAC60-21-40. Required fees.
A. Application/registration fees.
1. Dental license by examination
|
$400
|
2. Dental license by credentials
|
$500
|
3. Dental restricted teaching license
|
$285
|
4. Dental faculty license
|
$400
|
5. Dental temporary resident's license
|
$60
|
6. Restricted volunteer license
|
$25
|
7. Volunteer exemption registration
|
$10
|
8. Oral maxillofacial surgeon registration
|
$175
|
9. Cosmetic procedures certification
|
$225
|
10. Mobile clinic/portable operation
|
$250
|
11. Moderate sedation permit
|
$100
|
12. Deep sedation/general anesthesia permit
|
$100
|
B. Renewal fees.
1. Dental license - active
|
$285
|
2. Dental license - inactive
|
$145
|
3. Dental temporary resident's license
|
$35
|
4. Restricted volunteer license
|
$15
|
5. Oral maxillofacial surgeon registration
|
$175
|
6. Cosmetic procedures certification
|
$100
|
7. Moderate sedation permit
|
$100
|
8. Deep sedation/general anesthesia permit
|
$100
|
C. Late fees.
1. Dental license - active
|
$100
|
2. Dental license - inactive
|
$50
|
3. Dental temporary resident's license
|
$15
|
4. Oral maxillofacial surgeon registration
|
$55
|
5. Cosmetic procedures certification
|
$35
|
6. Moderate sedation permit
|
$35
|
7. Deep sedation/general anesthesia permit
|
$35
|
D. Reinstatement fees.
1. Dental license - expired
|
$500
|
2. Dental license - suspended
|
$750
|
3. Dental license - revoked
|
$1000
|
4. Oral maxillofacial surgeon registration
|
$350
|
5. Cosmetic procedures certification
|
$225
|
E. Document fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. License certification
|
$35
|
F. Other fees.
1. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
2. Practice inspection fee
|
$350
|
G. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
H. For the renewal of an active dental license in 2021, fees
shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$150
$165
$180
$195
$210
$225
$240
$255
$270
$285
$300
$315
|
18VAC60-25-30. Required fees.
A. Application fees.
1. License by examination
|
$175
|
2. License by credentials
|
$275
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725 of the Code
|
$175
|
4. Temporary permit pursuant to § 54.1-2726 of the Code
|
$175
|
5. Restricted volunteer license
|
$25
|
6. Volunteer exemption registration
|
$10
|
B. Renewal fees.
1. Active license
|
$75
|
2. Inactive license
|
$40
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$75
|
4. Temporary permit pursuant to § 54.1-2726
|
$75
|
C. Late fees.
1. Active license
|
$25
|
2. Inactive license
|
$15
|
3. License to teach dental hygiene pursuant to
§ 54.1-2725
|
$25
|
4. Temporary permit pursuant to § 54.1-2726
|
$25
|
D. Reinstatement fees.
1. Expired license
|
$200
|
2. Suspended license
|
$400
|
3. Revoked license
|
$500
|
E. Administrative fees.
1. Duplicate wall certificate
|
$60
|
2. Duplicate license
|
$20
|
3. Certification of licensure
|
$35
|
4. Returned Handling fee for returned check or
dishonored credit or debit card
|
$35 $50
|
F. No fee shall be refunded or applied for any purpose other
than the purpose for which the fee was submitted.
G. For the renewal of an active dental hygienist license in
2021, fees shall be prorated according to a licensee's birth month as follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$40
$44
$48
$52
$56
$60
$64
$68
$72
$76
$80
$84
|
18VAC60-30-30. Required fees.
A. Initial registration fee.
|
$100
|
B. Renewal fees.
|
|
1. Dental assistant II registration - active
|
$50
|
2. Dental assistant II registration - inactive
|
$25
|
C. Late fees.
|
|
1. Dental assistant II registration - active
|
$20
|
2. Dental assistant II registration - inactive
|
$10
|
D. Reinstatement fees.
|
|
1. Expired registration
|
$125
|
2. Suspended registration
|
$250
|
3. Revoked registration
|
$300
|
E. Administrative fees.
|
|
1. Duplicate wall certificate
|
$60
|
2. Duplicate registration
|
$20
|
3. Registration verification
|
$35
|
4. Returned Handling fee for returned check fee
or dishonored credit or debit card
|
$35 $50
|
F. No fee will be refunded or applied for any purpose other
than the purpose for which the fee is submitted.
G. For the renewal of an active dental assistant II
registration in 2021, the fees for renewal of an active dental assistant II
registration shall be prorated according to the registrant's birth month as
follows:
January birth month
February birth month
March birth month
April birth month
May birth month
June birth month
July birth month
August birth month
September birth month
October birth month
November birth month
December birth month
|
$30
$33
$36
$39
$42
$45
$48
$51
$54
$57
$60
$63
|
VA.R. Doc. No. R21-5764; Filed August 6, 2020, 1:59 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF MEDICINE
Fast-Track Regulation
Title of Regulation: 18VAC85-40. Regulations
Governing the Practice of Respiratory Therapists (amending 18VAC85-40-66).
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: William L. Harp, M.D., Executive
Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Medicine the authority to promulgate regulations to administer the
regulatory system. The requirement for passage of a National Board of
Respiratory Care (NBRC) examination for initial licensure is found in § 54.1-2954
of the Code of Virginia.
Purpose: The purpose of the regulatory change is to
recognize the extensive preparation and effort required to pass a specialty
examination of the NBRC by allowing a respiratory therapist to have 20 hours of
continuing education credit in the biennium in which the examination is passed.
Such an allowance may encourage respiratory therapists to increase their
knowledge and clinical skills to enable them to provide more proficient care
and protect the health and safety of patients they serve.
Rationale for Using Fast-Track Rulemaking Process: The
impetus for the amendment was a recommendation of the Advisory Board on
Respiratory Care. Since the regulatory change provides an optional pathway for
fulfillment of continuing education requirements, it will not be controversial
and is appropriate for the fast-track rulemaking process.
Substance: The proposed amendment will allow a
respiratory therapist to have 20 hours of continuing education credit for
passage of a specialty examination of the National Board of Respiratory Care
for the biennium in which the practitioner passed the exam.
Issues: There is an advantage to the public if a
respiratory therapist completes a specialty examination, which would improve
their competency and clinical skills. There are no disadvantages to the public;
the basic examination of the NBRC is already recognized by the Code of Virginia
as the basis for licensure.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Medicine (Board) proposes to allow a respiratory therapist who passes a
specialty examination of the National Board of Respiratory Care to earn 20
hours of continuing education credit for the biennium in which the practitioner
passed the exam.
Background. Currently, in order to renew an active license as a
respiratory therapist, a licensee must have 20 hours of continuing education
within the biennial license renewal cycle. For the continuing education
credits, the Board currently recognizes: 1) courses approved and documented by
a sponsor recognized by the American Association for Respiratory Care, 2)
courses directly related to the practice of respiratory care as approved by the
American Medical Association for Category 1 Continuing Medical Education
credit, and 3) a credit course of post-licensure academic education relevant to
respiratory care offered by a college or university accredited by an agency recognized
by the United States Department of Education. In addition, up to two continuing
education hours may be satisfied through delivery of respiratory therapy
services, without compensation, to low-income individuals receiving services
through a local health department or a free clinic.
In addition to the enumerated ways of obtaining the required 20
hours of continuing education, the proposed amendment would allow respiratory
therapists to meet that requirement for the biennium if they pass a specialty exam
of the National Board of Respiratory Care. The specialty areas include adult
critical care, neonatal/pediatric respiratory care, pulmonary function
technology, and sleep disorders testing and therapeutic intervention. The
impetus for the proposed change was a recommendation of the Advisory Board on
Respiratory Care.
Estimated Benefits and Costs. The proposed change represents an
additional option to meet the required 20 hours of continuing education for
biennial renewal of the respiratory therapy license. According to the
Department of Health Professions (DHP), even though the Board does not offer
specialty licenses some respiratory therapists already take the specialty exam,
perhaps to signal to potential employers that their skills are advanced and current
in certain areas. The purpose of the regulatory change is to recognize the
extensive preparation and effort required to pass a specialty exam by allowing
those who pass the exam to meet the continuing education requirement.
In addition to the individuals who would have taken a specialty
exam without this change, the proposed amendment may encourage more respiratory
therapists to take a specialty exam. Since the proposed change is optional, it
can be inferred that the benefits to those who choose to take the exam would
exceed the costs to them. Also, to the extent that the specialty exam improves
the quality of respiratory care in the Commonwealth, both employers and
patients would benefit.
However, the proposed regulation may also lead to a decrease in
demand for continuing education services offered by the current continuing
education providers. With this change, a respiratory therapist who passes the
specialty exam would not have to take 20 hours of continuing education from
existing providers.
Businesses and Other Entities Affected. According to DHP, there
are currently 3,743 persons licensed as respiratory therapists in Virginia.
However, the Board does not license by specialty and as such there is no
information on the number of therapists who pass a specialty exam during a
certain period of time, nor is there an estimate of the number of therapists
who may be interested in taking the specialty exam as a result of the proposed
change.
While the benefits of the proposal may exceed costs overall,
there would likely be a reduction in net revenue for existing providers of
continuing education. An adverse economic impact1 on existing
providers of continuing education is indicated because there do not appear to
be any offsetting direct benefits to these businesses.
Small Businesses2 Affected. Substitution of the
specialty exam for the alternate courses may negatively affect the small
businesses that currently offer the courses that would count toward the 20
required hours.
Types and Estimated Number of Small Businesses Affected: The
board does not license continuing education providers for respiratory therapy.
Accordingly, there is no estimate available on the number of small businesses
that currently offer continuing education services to respiratory therapists.
Costs and Other Effects: The proposed amendment makes it more
attractive to earn continuing education credits through a specialty exam which
may reduce the demand for continuing education services from current providers.
Alternative Method that Minimizes Adverse Impact: There is no
clear alternative method that both reduce adverse impact and meet the intended
policy goals.
Localities3 Affected.4 The proposed
amendment potentially affects respiratory therapists and continuing education
providers in all 132 localities. The proposed amendment does not introduce
costs for local governments. Accordingly, no additional funds would be
required.
Projected Impact on Employment. There is not enough information
to assess whether the likely reduction in demand for continuing education
services offered by the current providers has the potential to affect total
employment.
Effects on the Use and Value of Private Property. The proposed
amendment may negatively affect the asset value of current continuing education
providers by potentially reducing the demand for their services. The proposed
amendment does not appear to affect real estate development costs.
_____________________________
1Adverse impact is indicated if there is any increase in
net cost or reduction in net revenue for any entity, even if the benefits
exceed the costs for all entities combined.
2Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
3"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
4§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Medicine concurs with the analysis of the Department of Planning and Budget.
Summary:
The amendment allows a respiratory therapist who passes a
specialty examination of the National Board of Respiratory Care to earn 20
hours of continuing education credit for the biennium in which the practitioner
passes the exam.
18VAC85-40-66. Continuing education requirements.
A. In order to renew an active license as a respiratory
therapist, a licensee shall attest to having completed 20 hours of continuing
education within the last biennium as follows:
1. Courses approved and documented by a sponsor recognized by
the AARC;
2. Courses directly related to the practice of respiratory
care as approved by the American Medical Association for Category 1 CME credit;
or
3. A credit course of post-licensure academic education
relevant to respiratory care offered by a college or university accredited by
an agency recognized by the U.S. Department of Education; or
4. Passage of a specialty examination of the National Board
of Respiratory Care for 20 hours of credit in the biennium in which the examination
was passed.
Up to two continuing education hours may be satisfied through
delivery of respiratory therapy services, without compensation, to low-income
individuals receiving services through a local health department or a free
clinic organized in whole or primarily for the delivery of health services. One
hour of continuing education may be credited for three hours of providing such
volunteer services. For the purpose of continuing education credit for
voluntary service, the hours shall be approved and documented by the health
department or free clinic.
B. A practitioner shall be exempt from the continuing
education 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 four years following the
renewal of an active license.
D. The board shall periodically conduct a random audit of its
active licensees to determine compliance. The practitioners selected for the
audit shall provide 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.
VA.R. Doc. No. R21-6299; Filed August 7, 2020, 10:54 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF MEDICINE
Proposed Regulation
Title of Regulation: 18VAC85-50. Regulations
Governing the Practice of Physician Assistants (amending 18VAC85-50-10, 18VAC85-50-35,
18VAC85-50-40, 18VAC85-50-57, 18VAC85-50-101, 18VAC85-50-110, 18VAC85-50-115,
18VAC85-50-117, 18VAC85-50-140, 18VAC85-50-160, 18VAC85-50-181).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information:
October 8, 2020 - 1:05 p.m. - Perimeter Center, 9960
Mayland Drive, Suite 201, Richmond, VA 23233-1463
Public Comment Deadline: October 30, 2020.
Agency Contact: William L. Harp, M.D., Executive
Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Medicine the authority to promulgate regulations to administer the
regulatory system.
Purpose: The purpose of this regulatory action is
compliance with statutory changes delineating the practice of a physician
assistant. The amendments are consistent with the requirement for a practice
agreement between or among the parties and the responsibility of the patient
care team physician or podiatrist for the health, safety, and welfare of
patients who receive care.
Substance: Amendments are adopted to comply with changes
to the Code of Virginia by Chapters 92 and 137 of the 2019 Acts of Assembly,
which eliminated practice by a physician assistant under the supervision of a
physician or podiatrist and redefined the relationship as one of practice in
collaboration and consultation with a patient care team physician or
podiatrist.
Issues: There are no advantages or disadvantages to the
public apart from those in the statutory language in Chapter 29 (§ 54.1-2900 et
seq.) of Title 54.1. The changes do not substantially alter the practice model
for physician assistants and physicians as they are currently employed.
There are no particular advantages or disadvantages to the
agency.
Department of Planning and
Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Medicine (Board) proposes to revise the regulation to reflect new legislation
that revised the practice relationship between a physician assistant and a
physician or a podiatrist and to repeal an obsolete fee.
Background. This action results from Chapters 921
and 1372 of the 2019 Acts of Assembly that changed how physician
assistants practice, from practicing under the supervision of a physician or
podiatrist to practicing as part of a patient care team. The legislation
established "a patient care team model" where the focus of the
relationship is on collaboration and consultation rather than supervision. In
the new model, the role of the patient care team physician or podiatrist is to
provide management and leadership to a physician assistant in the care of
patients as part of a patient care team.
Estimated Benefits and Costs. According to the Department of
Health Professions (DHP), the patient care team model affords more discretion
to the physician assistants as the focus of the relationship has shifted from
supervision to collaboration and consultation under the new legislation.
Otherwise, the change does not substantially alter the practice model for
physician assistants and physicians as they are currently employed. Since there
are no significant differences in the way physician assistants and doctors
practice, the main benefit of this change is clarity and consistency of the
regulation with the statute.
The Board also proposes to repeal obsolete language requiring a
$15 fee for the review and approval of new protocols that are submitted
following initial licensure. This fee has not been enforced in practice
following the passage of Chapter 450 of the 2016 Acts of Assembly3
that required only "Evidence of a practice agreement shall be maintained
by the physician assistant and provided to the Board upon request, " but
it has been inadvertently left in the regulatory text since then. The main
benefit of this change is the removal of inaccurate language from the
regulatory text.
Businesses and Other Entities Affected. The proposed amendments
affect physicians and physician assistants entering into professional
collaboration and a consultation relationship. There are 38,947 doctors of
medicine and surgery, 3,834 doctors of osteopathic medicine, 553 doctors of
podiatry, and 4,224 physician assistants. None of these entities appears to be
disproportionately affected.
Small Businesses4 Affected. The proposed amendments
do not appear to adversely affect small businesses.
Localities5 Affected.6 The proposed
amendments potentially affect physicians and physician assistants entering into
professional collaboration and consultation relationship in all 132 localities.
The proposed amendments do not introduce costs for local governments.
Accordingly, no additional funds would be required.
Projected Impact on Employment. The proposed amendments do not
appear to affect total employment.
Effects on the Use and Value of Private Property. The proposed
amendments do not affect real estate development costs.
_______________________
1http://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0092.
2http://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0137.
3http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0450.
4Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million. "
5"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
6§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Medicine concurs with the analysis of the Department of Planning and Budget.
Summary:
Pursuant to Chapters 92 and 137 of the 2019 Acts of
Assembly, the amendments replace practice by a physician assistant under the
supervision of a physician or a podiatrist with practice in collaboration and
consultation with a patient care team physician or patient care team
podiatrist.
Part I
General Provisions
18VAC85-50-10. Definitions.
A. The following words and terms shall have the meanings
ascribed to them in § 54.1-2900 of the Code of Virginia:
"Board."
"Collaboration."
"Consultation."
"Patient care team physician."
"Patient care team podiatrist."
"Physician assistant."
B. The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Group practice" means the practice of a group of
two or more doctors of medicine, osteopathy, or podiatry licensed by the board
who practice as a partnership or professional corporation.
"Institution" means a hospital, nursing home or
other health care facility, community health center, public health center,
industrial medicine or corporation clinic, a medical service facility, student
health center, or other setting approved by the board.
"NCCPA" means the National Commission on
Certification of Physician Assistants.
"Practice agreement" means a written or
electronic agreement developed by the supervising patient care
team physician or podiatrist and the physician assistant that
defines the supervisory relationship between the physician assistant and
the physician or podiatrist, the prescriptive authority of the physician
assistant, and the circumstances under which the physician or podiatrist
will see and evaluate the patient.
"Supervision" means the supervising physician
has on-going, regular communication with the physician assistant on the care
and treatment of patients, is easily available, and can be physically present
or accessible for consultation with the physician assistant within one hour.
18VAC85-50-35. Fees.
Unless otherwise provided, the following fees shall not be
refundable:
1. The initial application fee for a license, payable at the
time application is filed, shall be $130.
2. The biennial fee for renewal of an active license shall be
$135 and for renewal of an inactive license shall be $70, payable in each
odd-numbered year in the birth month of the licensee. For 2021, the fee for
renewal of an active license shall be $108, and the fee for renewal of an
inactive license shall be $54.
3. The additional fee for late renewal of licensure within one
renewal cycle shall be $50.
4. A restricted volunteer license shall expire 12 months from
the date of issuance and may be renewed without charge by receipt of a renewal
application that verifies that the physician assistant continues to comply with
provisions of § 54.1-2951.3 of the Code of Virginia.
5. The fee for review and approval of a new protocol
submitted following initial licensure shall be $15.
6. 5. The fee for reinstatement of a license
pursuant to § 54.1-2408.2 of the Code of Virginia shall be $2,000.
7. 6. The fee for a duplicate license shall be
$5.00, and the fee for a duplicate wall certificate shall be $15.
8. 7. The handling fee for a returned check or a
dishonored credit card or debit card shall be $50.
9. 8. The fee for a letter of good standing or
verification to another jurisdiction shall be $10.
10. 9. The fee for an application or for the
biennial renewal of a restricted volunteer license shall be $35, due in the
licensee's birth month. An additional fee for late renewal of licensure shall
be $15 for each renewal cycle.
Part II
Requirements for Practice as a Physician's Assistant
18VAC85-50-40. General requirements.
A. No person shall practice as a physician assistant in the
Commonwealth of Virginia except as provided in this chapter.
B. All services rendered by a physician assistant shall be
performed only under the continuous supervision of in accordance with
a practice agreement with a doctor of medicine, osteopathy, or podiatry
licensed by this board to practice in the Commonwealth.
18VAC85-50-57. Discontinuation of employment.
If for any reason the physician assistant discontinues
working in the employment and under the supervision of a licensed
practitioner with a patient care team physician or podiatrist, a new
practice agreement shall be entered into in order for the physician
assistant either to be reemployed by the same practitioner or to accept new
employment with another supervising physician patient care team
physician or podiatrist.
Part IV
Practice Requirements
18VAC85-50-101. Requirements for a practice agreement.
A. Prior to initiation of practice, a physician assistant and
his supervising patient care team physician or podiatrist
shall enter into a written or electronic practice agreement that spells out the
roles and functions of the assistant and is consistent with provisions of §
54.1-2952 of the Code of Virginia.
1. The supervising patient care team physician or
podiatrist shall be a doctor of medicine, osteopathy, or podiatry licensed
in the Commonwealth who has accepted responsibility for the supervision of
the service that a physician assistant renders.
2. Any such practice agreement shall take into account such
factors as the physician assistant's level of competence, the number of
patients, the types of illness treated by the physician or podiatrist,
the nature of the treatment, special procedures, and the nature of the
physician or podiatrist availability in ensuring direct physician or
podiatrist involvement at an early stage and regularly thereafter.
3. The practice agreement shall also provide an evaluation
process for the physician assistant's performance, including a requirement
specifying the time period, proportionate to the acuity of care and practice
setting, within which the supervising physician or podiatrist
shall review the record of services rendered by the physician assistant.
4. The practice agreement may include requirements for periodic
site visits by supervising licensees who supervise and direct the
patient care team physician or podiatrist to collaborate and consult with
physician assistants who provide services at a location other than where
the licensee physician or podiatrist regularly practices.
B. The board may require information regarding the level
degree of supervision with which the supervising collaboration
and consultation by the patient care team physician plans to supervise
the physician assistant for selected tasks or podiatrist. The board
may also require the supervising patient care team physician or
podiatrist to document the physician assistant's competence in
performing such tasks.
C. If the role of the physician assistant includes
prescribing drugs and devices, the written practice agreement shall include
those schedules and categories of drugs and devices that are within the scope
of practice and proficiency of the supervising patient care team
physician or podiatrist.
D. If the initial practice agreement did not include
prescriptive authority, there shall be an addendum to the practice agreement
for prescriptive authority.
E. If there are any changes in supervision consultation
and collaboration, authorization, or scope of practice, a revised practice
agreement shall be entered into at the time of the change.
18VAC85-50-110. Responsibilities of the supervisor patient
care team physician or podiatrist.
The supervising patient care team physician or
podiatrist shall:
1. Review the clinical course and treatment plan for any
patient who presents for the same acute complaint twice in a single episode of
care and has failed to improve as expected. The supervising physician or
podiatrist shall be involved with any patient with a continuing illness as
noted in the written or electronic practice agreement for the evaluation
process.
2. Be responsible for all invasive procedures.
a. Under supervision, a physician assistant may insert a
nasogastric tube, bladder catheter, needle, or peripheral intravenous catheter,
but not a flow-directed catheter, and may perform minor suturing, venipuncture,
and subcutaneous intramuscular or intravenous injection.
b. All other invasive procedures not listed in subdivision 2 a
of this section must be performed under supervision with the physician in the
room unless, after directly observing the performance of a specific invasive
procedure three times or more, the supervising patient care team
physician or podiatrist attests on the practice agreement to the
competence of the physician assistant to perform the specific procedure without
direct observation and supervision.
3. Be responsible for all prescriptions issued by the physician
assistant and attest to the competence of the assistant to prescribe drugs and
devices.
4. Be available at all times to collaborate and consult
with the physician assistant.
18VAC85-50-115. Responsibilities of the physician assistant.
A. The physician assistant shall not render independent
health care and shall:
1. Perform only those medical care services that are within
the scope of the practice and proficiency of the supervising patient
care team physician or podiatrist as prescribed in the physician
assistant's practice agreement. When a physician assistant is to be
supervised by an alternate supervising physician working outside the
scope of specialty of the supervising patient care team physician
or podiatrist, then the physician assistant's functions shall be limited
to those areas not requiring specialized clinical judgment, unless a separate
practice agreement has been executed for that alternate supervising patient
care team physician or podiatrist.
2. Prescribe only those drugs and devices as allowed in Part V
(18VAC85-50-130 et seq.) of this chapter.
3. Wear during the course of performing his duties
identification showing clearly that he is a physician assistant.
B. An alternate supervising
patient care team physician or podiatrist shall be a member of
the same group, professional corporation, or partnership of any licensee who supervises
is the patient care team physician or podiatrist for a physician
assistant or shall be a member of the same hospital or commercial enterprise
with the supervising patient care team physician or podiatrist.
Such alternating supervising physician or podiatrist shall be a
physician or podiatrist licensed in the Commonwealth who has accepted
responsibility for the supervision of the service that a physician
assistant renders.
C. If, due to illness, vacation, or unexpected absence, the supervising
patient care team physician or podiatrist or alternate supervising
physician or podiatrist is unable to supervise the activities of his
physician assistant, such supervising patient care team physician
or podiatrist may temporarily delegate the responsibility to another
doctor of medicine, osteopathic medicine, or podiatry.
Temporary coverage may not exceed four weeks unless special
permission is granted by the board.
D. With respect to physician assistants employed by
institutions, the following additional regulations shall apply:
1. No physician assistant may render care to a patient unless
the physician or podiatrist responsible for that patient has signed the
practice agreement to act as supervising patient care team
physician or podiatrist for that physician assistant.
2. Any such practice agreement as described in subdivision 1
of this subsection shall delineate the duties which said patient care team
physician or podiatrist authorizes the physician assistant to perform.
3. The physician assistant shall, as soon as circumstances
may dictate, report an acute or significant finding or change in clinical
status to the supervising physician concerning the examination of the patient.
The physician assistant shall also record his findings in appropriate
institutional records.
E. Practice by a physician assistant in a hospital, including
an emergency department, shall be in accordance with § 54.1-2952 of the
Code of Virginia.
18VAC85-50-117. Authorization to use fluoroscopy.
A physician assistant working under the supervision of
a practice agreement with a licensed doctor of medicine or osteopathy
specializing in the field of radiology is authorized to use fluoroscopy for
guidance of diagnostic and therapeutic procedures provided such activity is
specified in his protocol and he has met the following qualifications:
1. Completion of at least 40 hours of structured didactic
educational instruction and at least 40 hours of supervised clinical experience
as set forth in the Fluoroscopy Educational Framework for the Physician
Assistant created by the American Academy of Physician Assistants (AAPA) and
the American Society of Radiologic Technologists (ASRT); and
2. Successful passage of the American Registry of Radiologic
Technologists (ARRT) Fluoroscopy Examination.
18VAC85-50-140. Approved drugs and devices.
A. The approved drugs and devices which the physician
assistant with prescriptive authority may prescribe, administer, or dispense
manufacturer's professional samples shall be in accordance with provisions of §
54.1-2952.1 of the Code of Virginia:
B. The physician assistant may prescribe only those
categories of drugs and devices included in the practice agreement. The supervising
patient care team physician or podiatrist retains the authority
to restrict certain drugs within these approved categories.
C. The physician assistant, pursuant to § 54.1-2952.1 of the
Code of Virginia, shall only dispense manufacturer's professional samples or
administer controlled substances in good faith for medical or therapeutic
purposes within the course of his professional practice.
18VAC85-50-160. Disclosure.
A. Each prescription for a Schedule II through V drug shall
bear the name of the supervising patient care team physician or
podiatrist and of the physician assistant.
B. The physician assistant shall disclose to the patient that
he is a licensed physician assistant, and also the name, address and telephone
number of the supervising patient care team physician or
podiatrist. Such disclosure shall either be included on the prescription or
be given in writing to the patient.
18VAC85-50-181. Pharmacotherapy for weight loss.
A. A practitioner shall not prescribe amphetamine, Schedule
II, for the purpose of weight reduction or control.
B. A practitioner shall not prescribe controlled substances,
Schedules III through VI, for the purpose of weight reduction or control in the
treatment of obesity, unless the following conditions are met:
1. An appropriate history and physical examination are
performed and recorded at the time of initiation of pharmacotherapy for obesity
by the prescribing physician, and the physician reviews the results of
laboratory work, as indicated, including testing for thyroid function;
2. If the drug to be prescribed could adversely affect cardiac
function, the physician shall review the results of an electrocardiogram
performed and interpreted within 90 days of initial prescribing for treatment
of obesity;
3. A diet and exercise program for weight loss is prescribed
and recorded;
4. The patient is seen within the first 30 days following
initiation of pharmacotherapy for weight loss, by the prescribing physician or
a licensed practitioner with prescriptive authority working under the
supervision of the prescribing physician, at which time a recording shall be
made of blood pressure, pulse, and any other tests as may be necessary for
monitoring potential adverse effects of drug therapy; and
5. The treating physician shall direct the follow-up care,
including the intervals for patient visits and the continuation of or any
subsequent changes in pharmacotherapy. Continuation of prescribing for
treatment of obesity shall occur only if the patient has continued progress
toward achieving or maintaining a target weight and has no significant adverse
effects from the prescribed program.
C. If specifically authorized in his practice agreement with
a supervising patient care team physician, a physician assistant
may perform the physical examination, review tests, and prescribe Schedules III
through VI controlled substances for treatment of obesity as specified in
subsection B of this section.
VA.R. Doc. No. R20-6083; Filed August 6, 2020, 2:04 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF NURSING
Fast-Track Regulation
Title of Regulation: 18VAC90-19. Regulations
Governing the Practice of Nursing (amending 18VAC90-19-130).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Jay P. Douglas, R.N., Executive
Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Nursing the authority to promulgate regulations to administer the regulatory
system.
Purpose: The amendment will allow the use of the term
"RN applicant" for foreign graduates awaiting approval for licensure,
which is consistent with the nametag requirement for U.S. graduates practicing
during a 90-day approval period. Since all applicants complete the same
licensing examination and foreign graduates undergo a rigorous evaluation
process, the amended nametag designation continues to protect public health and
safety by indicating that the nurse providing care is an applicant for
licensure who has been approved by the board to practice for a certain period
of time.
Rationale for Using Fast-Track Rulemaking Process: The
board is amending 18VAC90-19-130 in response to a petition for rulemaking. The
petition was supported overwhelmingly by public comment, so the board has
adopted the proposed amendment by a fast-track rulemaking process.
Substance: The board has amended 18VAC90-19-130 to allow
an applicant who is a graduate of a foreign education program and is practicing
nursing during a 90-day period following submission of an application to use
the title "RN Applicant" on a nametag, rather than the designation of
"Foreign graduate applicant."
Issues: There are no primary advantages or disadvantages
to the public; the public is equally protected by use of the amended title.
There are no advantages or disadvantages to the department.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Nursing proposes to allow approved registered nurse (RN) applicants with
education from countries other than the United States and Canada to use the
"RN Applicant" designation in their name tags or when signing
documents while their application is pending passage of the licensure
examination.
Background. This action results
from a petition for rulemaking.1 All applicants for licensure as a
RN whose basic nursing education was received in other countries are required
to submit evidence showing: 1) that their secondary and nursing education is
comparable to those required for RNs in the Commonwealth, and 2) that they are
proficient in English. Applicants who meet these conditions are then allowed to
practice for up to 90 days following approval of an application. Currently,
during the 90 days, approved applicants with domestic or Canadian education
backgrounds are designated as "RN Applicants," but other applicants
are designated as "foreign nurse graduates." The petition seeks to
use the "RN Applicant" designation for applicants from other counties
during the 90-day period.
Estimated Benefits and Costs. The comments supporting the
petition indicate that there is a perceived issue of discrimination due to
differing name tags based on the origin of nursing education and point out that
there should be no difference in name tag designation or when signing documents
as the foreign educational credits must be deemed comparable to those from
domestic or Canadian sources. The proposed amendment would allow all approved
applicants to use the same designation and is expected to eliminate the
perceived issue of discrimination.
Businesses and Other Entities Affected. The proposed amendment
would primarily affect approved RN applicants up to 90 days whose education
credits are earned in countries other than the United States or Canada. The
Department of Health Professions does not track the number of applicants based on
education background but reports that in the first quarter of fiscal year 2020,
there were 3,025 new licenses issued for RNs.
Small Businesses2 Affected. The proposed amendment
does not appear to adversely affect small businesses.
Localities3 Affected.4 The proposed
amendment does not appear to affect localities.
Projected Impact on Employment. The proposed amendment does not
appear to affect employment.
Effects on the Use and Value of Private Property. The proposed
amendment does not appear to affect the use and value of private property.
____________________________
1https://townhall.virginia.gov/l/viewpetition.cfm?petitionid=311
2Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
3"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
4§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Nursing concurs with the analysis of the Department of Planning and Budget.
Summary:
The amendment allows an applicant who is a graduate of a
foreign education program and is practicing nursing during a 90-day period
following submission of an application to use the title "RN
Applicant" on a nametag.
18VAC90-19-130. Licensure of applicants from other countries.
A. With the exception of applicants from Canada who are
eligible to be licensed by endorsement, applicants whose basic nursing
education was received in another country shall be scheduled to take the
licensing examination provided they meet the statutory qualifications for
licensure. Verification of qualification shall be based on documents submitted
as required in subsection B or C of this section.
B. Such applicants for registered nurse licensure shall:
1. Submit evidence from the CGFNS that the secondary education
and nursing education are comparable to those required for registered nurses in
the Commonwealth;
2. Submit evidence of passage of an English language
proficiency examination approved by the CGFNS, unless the applicant meets the
CGFNS criteria for an exemption from the requirement; and
3. Submit the required application and fee for licensure by examination.
C. Such applicants for practical nurse licensure shall:
1. Submit evidence from the CGFNS that the secondary education
and nursing education are comparable to those required for practical nurses in
the Commonwealth;
2. Submit evidence of passage of an English language
proficiency examination approved by the CGFNS, unless the applicant meets the
CGFNS criteria for an exemption from the requirement; and
3. Submit the required application and fee for licensure by
examination.
D. An applicant for licensure as a registered nurse who has
met the requirements of subsections A and B of this section may practice for a
period not to exceed 90 days from the date of approval of an application
submitted to the board when he is working as a nonsupervisory staff nurse in a
licensed nursing home or certified nursing facility.
1. Applicants who practice nursing as provided in this
subsection shall use the designation "foreign nurse graduate" "RN
applicant" on nametags or when signing official records.
2. During the 90-day period, the applicant shall take and pass
the licensing examination in order to remain eligible to practice nursing in
Virginia.
3. Any person practicing nursing under this exemption who
fails to pass the licensure examination within the 90-day period may not
thereafter practice nursing until he passes the licensing examination.
E. In addition to CGFNS, the board may accept credentials
from other recognized agencies that review credentials of foreign-educated
nurses if such agencies have been approved by the board.
VA.R. Doc. No. R20-16; Filed August 6, 2020, 2:05 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF NURSING
Final Regulation
REGISTRAR'S NOTICE: The
Board of Nursing is claiming an exemption from Article 2 of 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 or the appropriation act where no agency discretion is involved.
The Board of Nursing will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 18VAC90-50. Regulations
Governing the Licensure of Massage Therapists (amending 18VAC90-50-40).
Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the
Code of Virginia.
Effective Date: September 30, 2020.
Agency Contact: Jay P. Douglas, R.N., Executive
Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA
23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.
Summary:
To conform the regulation to Chapter 727 of the 2020 Acts
of Assembly, the amendments (i) clarify the licensure requirement for
completion of a massage therapy educational program that has a minimum of 500
hours of training and (ii) specify the requirements for a foreign-trained
massage therapist seeking licensure, including that the applicant has passed a
board-approved English language proficiency examination, is at least 18 years
of age, and has not committed any acts or omissions that would be grounds for
disciplinary action or denial of licensure.
Part II
Requirements for Licensure
18VAC90-50-40. Initial licensure.
A. An applicant seeking initial licensure shall submit a
completed application and required fee and verification of meeting the
requirements of § 54.1-3029 A of the Code of Virginia as follows:
1. Is at least 18 years old;
2. Has successfully completed a minimum of 500 hours of
training from a massage therapy educational program that required
a minimum of 500 hours of training. The massage therapy educational program
shall be certified or approved by the State Council of Higher Education for
Virginia or an agency in another state, the District of Columbia, or a United
States territory that approves educational programs, notwithstanding the
provisions of § 23.1-226 of the Code of Virginia;
3. Has passed the Licensing Examination of the Federation of
State Massage Therapy Boards, or an exam deemed acceptable to the board;
4. Has not committed any acts or omissions that would be
grounds for disciplinary action or denial of certification as set forth in § 54.1-3007
of the Code of Virginia and 18VAC90-50-90; and
5. Has completed a criminal history background check as
required by § 54.1-3005.1 of the Code of Virginia.
B. An applicant shall attest that he has read and will comply
with laws and regulations and the professional code of ethics relating to
massage therapy.
C. An applicant who has been licensed or certified in
another country and who provides certification of equivalency to the
educational requirements in Virginia from a credentialing body acceptable to
the board shall take and pass an examination as required in subsection A of
this section in order to become licensed. completed a massage therapy
educational program in a foreign country may apply for licensure as a massage
therapist upon submission of evidence satisfactory to the board that the
applicant:
1. Is at least 18 years old;
2. Has successfully completed a massage therapy educational
program in a foreign country that is comparable to a massage therapy
educational program required for licensure by the board as demonstrated by
submission of evidence of comparability and equivalency provided by an agency
that evaluates credentials for persons who have studied outside the United
States;
3. Has passed a board-approved English language proficiency
examination; and
4. Has not committed any acts or omissions that would be
grounds for disciplinary action or denial of licensure as set forth in Chapter
30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia.
The board shall issue a license to an applicant who meets the
requirements in this subsection upon submission by the applicant of evidence
satisfactory to the board that the applicant has completed an English version
of the Licensing Examination of the Federation of State Massage Therapy Boards
or a comparable examination deemed acceptable to the board.
VA.R. Doc. No. R21-6407; Filed August 3, 2020, 12:33 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF OPTOMETRY
Emergency Regulation
Title of Regulation: 18VAC105-20. Regulations
Governing the Practice of Optometry (amending 18VAC105-20-47).
Statutory Authority: §§ 54.1-2400 and 54.1-3408.02
of the Code of Virginia.
Effective Dates: August 12, 2020, through February 11,
2022.
Agency Contact: Leslie L. Knachel, Executive Director,
Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 597-4130, FAX (804) 527-4471, or email leslie.knachel@dhp.virginia.gov.
Preamble:
Section 2.2-4011 of the Code of Virginia states that
agencies may adopt emergency regulations in situations in which 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,
and the regulation is not exempt under the provisions of subdivision A 4 of §
2.2-4006 of the Code of Virginia.
The emergency amendments (i) reiterate the Code of Virginia
requirement effective July 1, 2020, that a prescription for a controlled
substance that contains an opioid must be issued as an electronic prescription
and (ii) provide for a one-year waiver from the requirement if the practitioner
can demonstrate economic hardship technological limitations or other
exceptional circumstances beyond the practitioner's control.
18VAC105-20-47. Therapeutic pharmaceutical agents.
A. A TPA-certified optometrist, acting within the scope of
his practice, may procure, administer, and prescribe medically
appropriate therapeutic pharmaceutical agents (or any therapeutically
appropriate combination thereof) to treat diseases and abnormal conditions of
the human eye and its adnexa within the following categories:
1. Oral analgesics - Schedule II controlled substances
consisting of hydrocodone in combination with acetaminophen andSchedule III, IV
and VI narcotic and nonnarcotic agents.
2. Topically administered Schedule VI agents:
a. Alpha-adrenergic blocking agents;
b. Anesthetic (including esters and amides);
c. Anti-allergy (including antihistamines and mast cell
stabilizers);
d. Anti-fungal;
e. Anti-glaucoma (including carbonic anhydrase inhibitors and
hyperosmotics);
f. Anti-infective (including antibiotics and antivirals);
g. Anti-inflammatory;
h. Cycloplegics and mydriatics;
i. Decongestants; and
j. Immunosuppressive agents.
3. Orally administered Schedule VI agents:
a. Aminocaproic acids (including antifibrinolytic agents);
b. Anti-allergy (including antihistamines and leukotriene
inhibitors);
c. Anti-fungal;
d. Anti-glaucoma (including carbonic anhydrase inhibitors and
hyperosmotics);
e. Anti-infective (including antibiotics and antivirals);
f. Anti-inflammatory (including steroidal and nonsteroidal);
g. Decongestants; and
h. Immunosuppressive agents.
B. Schedule I, II, and V drugs are excluded from the list of
therapeutic pharmaceutical agents with the exception of controlled substances
in Schedule II consisting of hydrocodone in combination with acetaminophen and
gabapentin in Schedule V.
C. Over-the-counter topical and oral medications for the
treatment of the eye and its adnexa may be procured for administration,
administered, prescribed or dispensed.
D. Beginning July 1, 2020, a prescription for a controlled
substance that contains an opioid shall be issued as an electronic prescription
consistent with § 54.1-3408.02 of the Code of Virginia. Upon written request,
the board may grant a one-time waiver of the requirement for electronic
prescribing, for a period not to exceed one year, due to demonstrated economic
hardship, technological limitations that are not reasonably within the control
of the prescriber, or other exceptional circumstances demonstrated by the
prescriber.
VA.R. Doc. No. R21-6199; Filed August 12, 2020, 2:06 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF PHARMACY
Emergency Regulation
Title of Regulation: 18VAC110-60. Regulations
Governing Pharmaceutical Processors (amending 18VAC110-60-280).
Statutory Authority: §§ 54.1-3442.6 and 54.1-3447
of the Code of Virginia.
Effective Dates: August 6, 2020, through February 5,
2022.
Agency Contact: Caroline Juran, RPh, Executive Director,
Board of Pharmacy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4456, FAX (804) 527-4472, or email caroline.juran@dhp.virginia.gov.
Preamble:
Section 2.2-4011 A of the Code of Virginia states that
regulations that an agency finds are necessitated by an emergency situation may
be adopted upon consultation with the Attorney General, which approval shall be
granted only after the agency has submitted a request stating in writing the
nature of the emergency, and the necessity for such action shall be at the sole
discretion of the Governor.
The amendments (i) prohibit the production of cannabis oil
intended to be vaporized or inhaled from containing vitamin E acetate and (ii)
change references to cannabidiol oil or THC-A oil to cannabis oil in accordance
with Chapter 1278 of the 2020 Session of the General Assembly.
Part VI
Cultivation, Production, and Dispensing of Cannabidiol Oil or THC-A Cannabis
Oil
18VAC110-60-280. Cultivation and production of cannabidiol
oil or THC-A cannabis oil.
A. No cannabidiol oil or THC-A cannabis oil
shall have had pesticide chemicals or petroleum-based solvents used during the
cultivation, extraction, production, or manufacturing process, except that the
board may authorize the use of pesticide chemicals for purposes of addressing
an infestation that could result in a catastrophic loss of Cannabis crops.
B. Cultivation methods for Cannabis plants and extraction
methods used to produce the cannabidiol oil and THC-A cannabis oil
shall be performed in a manner deemed safe and effective based on current
standards or scientific literature.
C. Any Cannabis plant, seed, parts of plant, extract, cannabidiol
oil, or THC-A cannabis oil not in compliance with this
section shall be deemed adulterated.
D. No cannabis oil intended to be vaporized or inhaled
shall contain vitamin E acetate.
VA.R. Doc. No. R21-6250; Filed August 6, 2020, 2:07 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF PHARMACY
Final Regulation
REGISTRAR'S NOTICE: The
Board of Pharmacy is claiming an exemption from Article 2 of 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 or the appropriation act where no agency discretion is involved.
The Board of Pharmacy will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Title of Regulation: 18VAC110-60. Regulations
Governing Pharmaceutical Processors (amending 18VAC110-60-10 through
18VAC110-60-90, 18VAC110-60-110, 18VAC110-60-120, 18VAC110-60-130,
18VAC110-60-160 through 18VAC110-60-310, 18VAC110-60-330).
Statutory Authority: §§ 54.1-3442.6 and 54.1-3447
of the Code of Virginia.
Effective Date: September 30, 2020.
Agency Contact: Caroline Juran, RPh, Executive Director,
Board of Pharmacy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4456, FAX (804) 527-4472, or email caroline.juran@dhp.virginia.gov.
Summary:
To conform the regulation to Chapters 730 and 1278 of the
2020 Acts of Assembly, the amendments (i) change every reference of
"cannabidiol oil or THC-A oil" to "cannabis oil," (ii)
delete the requirement for an in-person examination by the prescriber
certifying a patient to receive cannabis oil and allow for the use of
telemedicine consistent with federal requirements, (iii) allow the
pharmacist-in-charge to authorize certain employee access to secured areas
without a pharmacist on the premises, (iv) allow a ratio of six pharmacy
technicians per pharmacist working in the processor, and (v) allow a laboratory
performing quality testing on products to determine a valid sample size to the
testing with a minimum of sample size from each homogenized batch.
Part I
General Provisions
18VAC110-60-10. Definitions.
In addition to words and terms defined in §§ 54.1-3408.3
and 54.1-3442.5 of the Code of Virginia, the following words and terms when
used in this chapter shall have the following meanings, unless the context
clearly indicates otherwise:
"90-day supply" means the amount of cannabidiol
oil or THC-A cannabis oil reasonably necessary to ensure an
uninterrupted availability of supply for a 90-day period for registered
patients.
"Batch" means a quantity of cannabidiol oil or
THC-A cannabis oil from a production lot that is identified by a
batch number or other unique identifier.
"Board" means the Board of Pharmacy.
"Certification" means a written statement,
consistent with requirements of § 54.1-3408.3 of the Code of Virginia,
issued by a practitioner for the use of cannabidiol oil or THC-A cannabis
oil for treatment of or to alleviate the symptoms of any diagnosed condition or
disease determined by the practitioner to benefit from such use.
"Dispensing error" means one or more of the
following was discovered after the final verification by the pharmacist,
regardless of whether the patient received the oil:
1. Variation from the intended oil to be dispensed, including:
a. Incorrect oil;
b. Incorrect oil strength;
c. Incorrect dosage form;
d. Incorrect patient; or
e. Inadequate or incorrect packaging, labeling, or directions.
2. Failure to exercise professional judgment in identifying
and managing:
a. Known therapeutic duplication;
b. Known drug-disease contraindications;
c. Known drug-drug interactions;
d. Incorrect drug dosage or duration of drug treatment;
e. Known drug-allergy interactions;
f. A clinically significant, avoidable delay in therapy; or
g. Any other significant, actual, or potential problem with a
patient's drug therapy.
3. Delivery of an oil to the incorrect patient.
4. An act or omission relating to the dispensing of cannabidiol
oil or THC-A cannabis oil that results in, or may reasonably be
expected to result in, injury to or death of a registered patient or results in
any detrimental change to the medical treatment for the patient.
"Electronic tracking system" means an electronic
radio-frequency identification (RFID) seed-to-sale tracking system that tracks
the Cannabis from either the seed or immature plant stage until the cannabidiol
oil and THC-A cannabis oil are is sold to a registered
patient, parent, or legal guardian or until the Cannabis, including the seeds,
parts of plants, and extracts, are destroyed. The electronic tracking system
shall include, at a minimum, a central inventory management system and standard
and ad hoc reporting functions as required by the board and shall be capable of
otherwise satisfying required recordkeeping.
"On duty" means that a pharmacist is on the
premises at the address of the permitted pharmaceutical processor and is
available as needed.
"PIC" means the pharmacist-in-charge.
"Production" or "produce" means the
manufacture, planting, preparation, cultivation, growing, harvesting,
propagation, conversion, or processing of marijuana, (i) directly or indirectly
by extraction from substances of natural origin, (ii) independently by means of
chemical synthesis, or (iii) by a combination of extraction and chemical
synthesis. "Production" or "produce" includes any packaging
or repackaging of the substance or labeling or relabeling of its container.
"Qualifying patient" means a Virginia resident who
has received from a practitioner, as defined in § 54.1-3408.3 of the Code
of Virginia, a written certification for the use of cannabidiol oil or THC-A
cannabis oil for treatment of or to alleviate the symptoms of any
diagnosed condition or disease.
"Registered patient" means a qualifying patient who
has been issued a registration by the board for the dispensing of cannabidiol
oil or THC-A cannabis oil to such patient.
"Registration" means an identification card or
other document issued by the board that identifies a person as a practitioner
or a qualifying patient, parent, or legal guardian.
"Resident" means a person whose principal place of
residence is within the Commonwealth as evidenced by a federal or state income
tax return or a current Virginia driver's license. If a person is a minor,
residency may be established by evidence of Virginia residency by a parent or
legal guardian.
"Temperature and humidity" means temperature and
humidity maintained in the following ranges:
Room or Phase
|
Temperature
|
Humidity
|
Mother room
|
65 - 75°
|
50% - 60%
|
Nursery phase
|
71 - 85° F
|
65% - 75%
|
Vegetation phase
|
71 - 85° F
|
55% - 65%
|
Flower/harvest phase
|
71 - 85° F
|
55% - 60%
|
Drying/extraction rooms
|
< 75° F
|
55% - 60%
|
18VAC110-60-20. Fees.
A. Fees are required by the board as specified in this
section. Unless otherwise provided, fees listed in this section shall not be
refundable.
B. Registration of practitioner.
1. Initial registration.
|
$50
|
2. Annual renewal of registration.
|
$50
|
3. Replacement of registration for a qualifying practitioner
whose information has changed or whose original registration certificate has
been lost, stolen, or destroyed.
|
$50
|
C. Registration by a qualifying patient, parent, or legal
guardian.
1. Initial registration of a patient.
|
$50
|
2. Annual renewal of registration of a patient.
3. Initial registration of a parent or legal guardian.
4. Annual renewal of registration of a parent or guardian.
|
$50
$25
$25
|
5. Replacement of registration for a qualifying patient,
parent, or legal guardian whose original registration certificate has been
lost, stolen, or destroyed.
|
$25
|
D. Pharmaceutical processor
permit.
1. Application.
|
$10,000
|
2. Initial permit.
|
$60,000
|
3. Annual renewal of permit.
|
$10,000
|
4. Change of name of processor.
|
$100
|
5. Change of PIC or any other information provided on the
permit application.
|
$100
|
6. Change of ownership not
requiring a criminal background check.
|
$100
|
7. Change of ownership requiring a criminal background check.
|
$250
|
8. Any acquisition, expansion, remodel, or change of location
requiring an inspection.
|
$1,000
|
9. Reinspection fee.
10. Registration of each cannabidiol oil or THC-A cannabis
oil product.
|
$1,000
$25
|
Part II
Requirements for Practitioners and Patients
18VAC110-60-30. Requirements for a practitioner issuing a
certification.
A. Prior to issuing a certification for cannabidiol oil or
THC-A cannabis oil for any diagnosed condition or disease, the
practitioner shall meet the requirements of § 54.1-3408.3 of the Code of
Virginia, shall submit an application and fee as prescribed in 18VAC110-60-20,
and shall be registered with the board.
B. A practitioner issuing a certification shall:
1. Conduct an assessment and evaluation of the patient in
order to develop a treatment plan for the patient, which shall include an
examination of the patient and the patient's medical history, prescription
history, and current medical condition, including an in-person physical
examination;
2. Diagnose the patient;
3. Be of the opinion that the potential benefits of cannabidiol
oil or THC-A cannabis oil would likely outweigh the health risks of
such use to the qualifying patient;
4. Explain proper administration and the potential risks and
benefits of the cannabidiol oil or THC-A cannabis oil to the
qualifying patient and, if the qualifying patient lacks legal capacity, to a
parent or legal guardian prior to issuing the written certification;
5. Be available or ensure that another practitioner, as
defined in § 54.1-3408.3 of the Code of Virginia, is available to provide
follow-up care and treatment to the qualifying patient, including physical
examinations, to determine the efficacy of cannabidiol oil or THC-A cannabis
oil for treating the diagnosed condition or disease;
6. Comply with generally accepted standards of medical
practice, except to the extent such standards would counsel against certifying
a qualifying patient for cannabidiol oil or THC-A cannabis oil;
7. Maintain medical records in accordance with 18VAC85-20-26
for all patients for whom the practitioner has issued a certification; and
8. Access or direct the practitioner's delegate to access the
Virginia Prescription Monitoring Program of the Department of Health
Professions for the purpose of determining which, if any, covered substances
have been dispensed to the patient.
C. Patient care and evaluation shall not occur by
telemedicine for at least the first year of certification. Thereafter, the The
practitioner shall use his professional judgment to determine the manner and
frequency of patient care and evaluation, which may include the use of
telemedicine. Such telemedicine use shall be consistent with federal
requirements for the prescribing of Schedules II through V controlled
substances.
D. A practitioner shall not delegate the responsibility of
diagnosing a patient or determining whether a patient should be issued a
certification. Employees under the direct supervision of the practitioner may
assist with preparing a certification, so long as the final certification is
approved and signed by the practitioner before it is issued to the patient.
E. The practitioner shall provide instructions for the use of
cannabidiol oil or THC-A cannabis oil to the patient, parent, or
guardian, as applicable, and shall also securely transmit such instructions to
the permitted pharmaceutical processor.
F. A practitioner shall not issue certifications for cannabidiol
oil or THC-A cannabis oil to more than 600 patients at any given
time. However, the practitioner may petition the Board of Pharmacy and Board of
Medicine for an increased number of patients for whom certifications may be
issued, upon submission of evidence that the limitation represents potential
patient harm.
G. Upon request, a practitioner shall make a copy of medical
records available to an agent of the Board of Medicine or Board of Pharmacy for
the purpose of enabling the board to ensure compliance with the law and
regulations or to investigate a possible violation.
18VAC110-60-40. Prohibited practices for practitioners.
A. A practitioner who issues certifications shall not:
1. Directly or indirectly accept, solicit, or receive anything
of value from any person associated with a pharmaceutical processor or provider
of paraphernalia, excluding information on products or educational materials on
the benefits and risks of cannabidiol oil or THC-A cannabis oil;
2. Offer a discount or any other thing of value to a
qualifying patient, parent, or guardian based on the patient's agreement or
decision to use a particular pharmaceutical processor or cannabidiol oil or
THC-A cannabis oil product;
3. Examine a qualifying patient for purposes of diagnosing the
condition or disease at a location where cannabidiol oil or THC-A cannabis
oil is dispensed or produced; or
4. Directly or indirectly benefit from a patient obtaining a
certification. Such prohibition shall not prohibit a practitioner from charging
an appropriate fee for the patient visit.
B. A practitioner who issues certifications, and such
practitioner's coworker, employee, spouse, parent, or child, shall not have a
direct or indirect financial interest in a pharmaceutical processor or any
other entity that may benefit from a qualifying patient's acquisition,
purchase, or use of cannabidiol oil or THC-A cannabis oil,
including any formal or informal agreement whereby a pharmaceutical processor
or other person provides compensation if the practitioner issues a
certification for a qualifying patient or steers a qualifying patient to a
specific pharmaceutical processor or cannabidiol oil or THC-A cannabis
oil product.
C. A practitioner shall not issue a certification for himself
or for family members, employees, or coworkers.
D. A practitioner shall not provide product samples
containing cannabidiol oil or THC-A cannabis oil other than those
approved by the U.S. Food and Drug Administration.
18VAC110-60-50. Registration of a patient, parent, or legal
guardian.
A. A qualifying patient for whom a practitioner has issued a
certification shall register with the board in accordance with this section. If
the qualifying patient is a minor or an incapacitated adult, the qualifying
patient's parent or legal guardian shall register with the board in accordance
with this section. For a registration application to be considered complete,
the following items shall be submitted:
1. A copy of the certification issued by a registered
practitioner;
2. Proof of residency of the qualifying patient and proof of
residency of a parent or legal guardian, if applicable, such as a
government-issued identification card or tax receipt;
3. Proof of identity of the qualifying patient and, if the
patient is a minor, proof of identity of the parent or legal guardian in the
form of a government-issued identification card;
4. Proof of the qualifying patient's age in the form of a
birth certificate or other government-issued identification;
5. Payment of the appropriate fees; and
6. Such other information as the board may require to determine
the applicant's suitability for registration or to protect public health and
safety.
B. A qualifying patient shall not be issued a written
certification by more than one practitioner during a given time period.
C. Patients, parents, and legal guardians issued a
registration shall carry their registrations with them whenever they are in
possession of cannabidiol oil or THC-A cannabis oil.
18VAC110-60-60. Denial of a qualifying patient, parent, or
legal guardian registration application.
A. The board may deny an application or renewal of the
registration of a qualifying patient, parent, or legal guardian if the
applicant:
1. Does not meet the requirements set forth in law or
regulation or fails to provide complete information on the application form;
2. Does not provide acceptable proof of identity, residency,
or age of the patient to the board;
3. Provides false, misleading, or incorrect information to the
board;
4. Has had a qualifying registration of a qualifying patient,
parent, or legal guardian denied, suspended, or revoked by the board in the
previous six months;
5. Has a certification issued by a practitioner who is not
authorized to certify patients for cannabidiol oil or THC-A cannabis
oil; or
6. Has a prior conviction of a violation of any law pertaining
to controlled substances.
B. If the board denies an application or renewal of a
qualifying patient, parent, or legal guardian applicant, the board shall
provide the applicant with notice of the grounds for the denial and shall
inform the applicant of the right to request a hearing pursuant to § 2.2-4019
of the Code of Virginia.
18VAC110-60-70. Reporting requirements for practitioners,
patients, parents, or legal guardians.
A. A practitioner shall report to the board, on a form
prescribed by the board, the death of a registered patient or a change in
status involving a registered patient for whom the practitioner has issued a
certification if such change affects the patient's continued eligibility to use
cannabidiol oil or THC-A cannabis oil or the practitioner's
inability to continue treating the patient. A practitioner shall report such
death, change of status, or inability to continue treatment not more than 15
days after the practitioner becomes aware of such fact.
B. A patient, parent, or legal guardian who has been issued a
registration shall notify the board of any change in the information provided
to the board not later than 15 days after such change. The patient, parent, or
legal guardian shall report changes that include a change in name, address,
contact information, medical status of the patient, or change of the certifying
practitioner. The patient, parent, or legal guardian shall report such changes
on a form prescribed by the board.
C. If a patient, parent, or legal guardian notifies the board
of any change that results in information on the patient, parent, or legal
guardian's registration being inaccurate, the board shall issue a replacement
registration. Upon receipt of a new registration, the qualifying patient,
parent, or legal guardian shall destroy in a nonrecoverable manner the
registration that was replaced.
D. If a patient, parent, or legal guardian becomes aware of
the loss, theft, or destruction of the registration of such patient, parent, or
legal guardian, the patient, parent, or legal guardian shall notify the board
not later than five business days after becoming aware of the loss, theft, or
destruction, and submit the fee for a replacement registration. The board shall
inactivate the initial registration upon receiving such notice and issue a
replacement registration upon receiving the applicable fee, provided the
applicant continues to satisfy the requirements of law and regulation.
18VAC110-60-80. Proper storage and disposal of cannabidiol oil
or THC-A oil by patients, parents, or legal guardians.
A. A registered patient, parent, or legal guardian shall
exercise reasonable caution to store cannabidiol oil or THC-A cannabis
oil in a manner to prevent theft, loss, or access by unauthorized persons.
B. A registered patient, parent, or legal guardian shall
dispose of all usable cannabidiol oil or THC-A cannabis oil in
the registered patient, parent, or legal guardian's possession no later than 10
calendar days after the expiration of the patient's registration if such registration
is not renewed, or sooner should the patient no longer wish to possess cannabidiol
oil or THC-A cannabis oil. A registered patient, parent, or legal
guardian shall complete such disposal by one of the following methods:
1. By removing the oil from the original container and mixing
it with an undesirable substance such as used coffee grounds, dirt, or kitty
litter. The mixture shall be placed in a sealable bag, empty can, or other
container to prevent the drug from leaking or breaking out of a garbage bag.
2. By transferring it to law enforcement via a medication
drop-box or drug take-back event if permissible under state and federal law.
18VAC110-60-90. Revocation or suspension of a qualifying
patient, parent, or legal guardian registration.
The board may revoke or suspend the registration of a
patient, parent, or legal guardian under the following circumstances:
1. The patient's practitioner notifies the board that the
practitioner is withdrawing the written certification submitted on behalf of
the patient, and 30 days after the practitioner's withdrawal of the written
certification the patient has not obtained a valid written certification from a
different practitioner;
2. The patient, parent, or legal guardian provided false,
misleading, or incorrect information to the board;
3. The patient, parent, or legal guardian is no longer a
resident of Virginia;
4. The patient, parent, or legal guardian obtained more than a
90-day supply of cannabidiol oil or THC-A cannabis oil in a
90-day period;
5. The patient, parent, or legal guardian provided or sold cannabidiol
oil or THC-A cannabis oil to any person, including another
registered patient, parent, or legal guardian;
6. The patient, parent, or legal guardian permitted another
person to use the registration of the patient, parent, or legal guardian;
7. The patient, parent, or legal guardian tampered, falsified,
altered, modified, or allowed another person to tamper, falsify, alter, or
modify the registration of the patient, parent, or legal guardian;
8. The registration of the patient, parent, or legal guardian
was lost, stolen, or destroyed, and the patient, parent, or legal guardian
failed to notify the board or notified the board of such incident more than
five business days after becoming aware that the registration was lost, stolen,
or destroyed;
9. The patient, parent, or legal guardian failed to notify the
board of a change in registration information or notified the board of such
change more than 14 days after the change; or
10. The patient, parent, or legal guardian violated any
federal or state law or regulation.
18VAC110-60-110. Application process for pharmaceutical
processor permits.
A. The application process for permits shall occur in three
stages: submission of initial application, award of conditional approval, and
grant of a pharmaceutical processor permit.
B. Submission of initial application.
1. A pharmaceutical processor permit applicant shall submit
the required application fee and form with the following information and
documentation:
a. The name and address of the applicant and the applicant's
owners;
b. The location within the health service area established by
the State Board of Health for the pharmaceutical processor that is to be
operated under such permit;
c. Detailed information regarding the applicant's financial
position indicating all assets, liabilities, income, and net worth to
demonstrate the financial capacity of the applicant to build and operate a
facility to cultivate Cannabis plants intended only for the production and dispensing
of cannabidiol oil and THC-A cannabis oil pursuant to §§
54.1-3442.6 and 54.1-3442.7 of the Code of Virginia, which may include evidence
of an escrow account, letter of credit, or performance surety bond;
d. Details regarding the applicant's plans for security to
maintain adequate control against the diversion, theft, or loss of the Cannabis
plants and the cannabidiol oil or THC-A cannabis oil;
e. Documents sufficient to establish that the applicant is
authorized to conduct business in Virginia and that all applicable state and
local building, fire, and zoning requirements and local ordinances are met or
will be met prior to issuance of a permit;
f. Information necessary for the board to conduct a criminal
background check on the applicant;
g. Information about any previous or current involvement in
the medical cannabidiol oil or THC-A cannabis oil industry;
h. Whether the applicant has ever applied for a permit or
registration related to medical cannabidiol oil or THC-A cannabis
oil in any state and, if so, the status of that application, permit, or
registration, to include any disciplinary action taken by any state on the
permit, the registration, or an associated license;
i. Any business and marketing plans related to the operation
of the pharmaceutical processor or the sale of cannabidiol oil or THC-A cannabis
oil;
j. Text and graphic materials showing the exterior appearance
of the proposed pharmaceutical processor;
k. A blueprint of the proposed pharmaceutical processor that
shall show and identify (i) the square footage of each area of the facility;
(ii) the location of all safes or vaults used to store the Cannabis plants and
oils; (iii) the location of all areas that may contain Cannabis plants,
cannabidiol oil, or THC-A cannabis oil; (iv) the placement of
walls, partitions, and counters; and (v) all areas of ingress and egress;
l. Documents related to any compassionate need program the
pharmaceutical processor intends to offer;
m. Information about the applicant's expertise in agriculture
and other production techniques required to produce cannabidiol oil or THC-A
cannabis oil and to safely dispense such products; and
n. Such other documents and information required by the board
to determine the applicant's suitability for permitting or to protect public
health and safety.
2. In the event any information contained in the application
or accompanying documents changes after being submitted to the board, the
applicant shall immediately notify the board in writing and provide corrected
information in a timely manner so as not to disrupt the permit selection
process.
3. The board shall conduct criminal background checks on
applicants and may verify information contained in each application and
accompanying documentation in order to assess the applicant's ability to
operate a pharmaceutical processor.
C. In the event the board determines that there are no
qualified applicants to award conditional approval for a pharmaceutical
processor permit in a health service area, the board may republish, in accordance
with 18VAC110-60-100, a notice of open applications for pharmaceutical
processor permits.
D. No person who has been convicted of a felony or of any
offense in violation of Article 1 (§ 18.2-247 et seq.) or Article 1.1 (§
18.2-265.1 et seq.) of Chapter 7 of Title 18.2 of the Code of Virginia shall
have any form of ownership, be employed by, or act as an agent of a
pharmaceutical processor.
18VAC110-60-120. Conditional approval.
A. Following the deadline for receipt of applications, the
board shall evaluate each complete and timely submitted application and may
grant conditional approval on a competitive basis based on compliance with
requirements set forth in 18VAC110-60-110.
B. The board shall consider, but is not limited to, the
following criteria in evaluating pharmaceutical processor permit applications:
1. The results of the criminal background checks required in
18VAC110-60-110 B 3 or any history of disciplinary action imposed by a state or
federal regulatory agency;
2. The location for the proposed pharmaceutical processor,
which shall not be within 1,000 feet of a school or daycare;
3. The applicant's ability to maintain adequate control
against the diversion, theft, and loss of the Cannabis, to include the seeds,
any parts or extracts of the Cannabis plants, the cannabidiol oil, or
the THC-A cannabis oil;
4. The applicant's ability to maintain the knowledge,
understanding, judgment, procedures, security controls, and ethics to ensure
optimal safety and accuracy in the dispensing and sale of cannabidiol oil or
THC-A cannabis oil;
5. The extent to which the applicant or any of the applicant's
pharmaceutical processor owners have a financial interest in another license,
permit, registrant, or applicant; and
6. Any other reason provided by state or federal statute or
regulation that is not inconsistent with the law and regulations regarding
pharmaceutical processors.
C. The board may disqualify any applicant who:
1. Submits an incomplete, false, inaccurate, or misleading
application;
2. Fails to submit an application by the published deadline;
3. Fails to pay all applicable fees; or
4. Fails to comply with all requirements for a pharmaceutical
processor.
D. Following review, the board shall notify applicants of
denial or conditional approval. The decision of the board not to grant
conditional approval to an applicant shall be final.
E. If granted conditional approval, an applicant shall have
one year from date of notification to complete all requirements for issuance of
a permit, to include employment of a PIC and other personnel necessary for
operation of a pharmaceutical processor, construction or remodeling of a
facility, installation of equipment, and securing local zoning approval.
18VAC110-60-130. Granting of a pharmaceutical processor permit.
A. The board may issue a pharmaceutical processor permit when
all requirements of the board have been met, to include:
1. Designation of a PIC;
2. Evidence of criminal background checks for all employees
and delivery agents of the processor to ensure compliance with § 54.1-3442.6 of
the Code of Virginia;
3. Evidence of utilization of an electronic tracking system;
and
4. A satisfactory inspection of the facility conducted by the
board or its agents.
B. The permit shall not be awarded until any deficiency
identified by inspectors has been corrected and the facility has been
satisfactorily reinspected if warranted.
C. Before any permit is issued, the applicant shall attest to
compliance with all state and local laws and ordinances. A pharmaceutical processor
permit shall not be issued to any person to operate from a private dwelling or
residence.
D. If an applicant has been awarded a pharmaceutical
processor permit and has not commenced operation of such facility within 180
days of being notified of the issuance of a pharmaceutical processor permit,
the board may rescind such permit, unless such delay was caused by
circumstances beyond the control of the permit holder.
E. A pharmaceutical processor shall be deemed to have
commenced operation if Cannabis plants are under cultivation by the processor in
accordance with the approved application.
F. In the event a permit is rescinded pursuant to this
section, the board may award a pharmaceutical processor permit by selecting
among the qualified applicants who applied for the pharmaceutical processor permit
subject to rescission. If no other qualified applicant who applied for such
pharmaceutical processor permit satisfied the criteria for awarding a permit,
the board shall publish in accordance with this section a notice of open
applications for a pharmaceutical processor permit.
G. Once the permit is issued, Cannabis may not be grown or
held in the pharmaceutical processor earlier than two weeks prior to the
opening date designated on the application. Once Cannabis has been placed in
the pharmaceutical processor, a pharmacist shall be present during hours of
operation to ensure the safety, security, and integrity of the Cannabis. Pursuant
to § 54.1-3442.6 of the Code of Virginia, the PIC may authorize certain
employee access to secured areas designated for cultivation. No pharmacist
shall be required to be on the premises during such authorized access. The PIC
shall ensure security measures are adequate to protect the cannabis from
diversion at all times. If there is a change in the designated opening
date, the pharmaceutical processor shall notify the board office, and a
pharmacist shall continue to be on site on a daily basis.
18VAC110-60-160. Grounds for action against a pharmaceutical
processor permit.
In addition to the bases enumerated in § 54.1-3316 of the
Code of Virginia, the board may suspend, revoke, or refuse to grant or renew a
permit issued; place such permit on probation; place conditions on such permit;
or take other actions permitted by statute or regulation on the following
grounds:
1. Any criminal conviction under federal or state statutes or
regulations or local ordinances, unless the conviction was based on a federal
statute or regulation related to the possession, purchase, or sale of cannabidiol
oil or THC-A cannabis oil that is authorized under state law and
regulations;
2. Any civil action under any federal or state statute or
regulation or local ordinance (i) relating to the applicant's, licensee's,
permit holder's, or registrant's profession or (ii) involving drugs, medical
devices, or fraudulent practices, including fraudulent billing practices;
3. Failure to maintain effective controls against diversion,
theft, or loss of Cannabis, cannabidiol oil or THC-A cannabis
oil, or other controlled substances;
4. Intentionally or through negligence obscuring, damaging, or
defacing a permit or registration card;
5. Permitting another person to use the permit of a permit
holder or registration of a qualifying patient, parent, or legal guardian;
6. Failure to cooperate or give information to the board on
any matter arising out of conduct at a pharmaceutical processor; or
7. Discontinuance of business for more than 60 days, unless
the board approves an extension of such period for good cause shown upon a
written request from a pharmaceutical processor. Good cause includes exigent
circumstances that necessitate the closing of the facility. Good cause shall
not include a voluntary closing of the pharmaceutical processor or production
facility.
Part IV
Requirements for Pharmaceutical Processor Personnel
18VAC110-60-170. Pharmaceutical processor employee licenses and
registrations.
A. A pharmacist with a current, unrestricted license issued
by the board practicing at the location of the address on the pharmaceutical
processor application shall be in full and actual charge of a pharmaceutical
processor and serve as the pharmacist-in-charge.
B. A pharmacist with a current, unrestricted license issued
by the board shall provide personal supervision on the premises of the
pharmaceutical processor at all times during hours of operation or whenever the
processor is being accessed.
C. A person who holds a current, unrestricted registration as
a pharmacy technician pursuant to § 54.1-3321 of the Code of Virginia and
who has had at least two years of experience practicing as a pharmacy
technician may perform the following duties under supervision of a pharmacist:
1. The entry of drug dispensing information and drug history
into a data system or other recordkeeping system;
2. The preparation of labels for dispensing the oils or
patient information;
3. The removal of the oil to be dispensed from inventory;
4. The measuring of the oil to be dispensed;
5. The packaging and labeling of the oil to be dispensed and
the repackaging thereof;
6. The stocking or loading of devices used in the dispensing
process;
7. The selling of the oil to the registered patient, parent,
or legal guardian; and
8. The performance of any other task restricted to pharmacy technicians
by the board's regulations.
D. A pharmacist with a current, unrestricted license; a
registered pharmacy intern who has completed the first professional year of
pharmacy school; or a pharmacy technician with a current, unrestricted
registration issued by the board may perform duties associated with the
cultivation, extraction, and dispensing of the oils as authorized by the PIC or
as otherwise authorized in law.
E. A person who does not maintain licensure as a pharmacist
or registration as a pharmacy technician but has received a degree in
horticulture or has at least two years of experience cultivating plants may
perform duties associated with the cultivation of Cannabis as authorized by the
PIC.
F. A person who does not maintain licensure as a pharmacist
or registration as a pharmacy technician but has received a degree in chemistry
or pharmacology or has at least two years of experience extracting chemicals
from plants may perform duties associated with the extraction of cannabidiol
oil and THC-A cannabis oil as authorized by the PIC.
G. A pharmacist on duty shall directly supervise the
activities in all areas designated for cultivation, extraction, and dispensing
or have a process in place, approved by the board, that provides adequate
supervision to protect the security of the Cannabis, seeds, extracts, cannabidiol
oil, and THC-A cannabis oil and shall ensure quality
of the dispensed oils. Pursuant to § 54.1-3442.6 of the Code of
Virginia, the PIC may authorize certain employee access to secured areas
designated for cultivation. No pharmacist shall be required to be on the
premises during such authorized access. The PIC shall ensure security measures
are adequate to protect the cannabis from diversion at all times.
H. At Except for certain employee access to secured
areas designated for cultivation and authorized by the PIC pursuant §
54.1-3442.6 of the Code of Virginia, at no time shall a pharmaceutical
processor operate or be accessed without a pharmacist on duty.
I. No person shall be employed by or serve as an agent of a
pharmaceutical processor without being at least 18 years of age.
J. No person who has had a license or registration suspended
or revoked or been denied issuance of such license or registration shall serve
as an employee or agent of the pharmaceutical processor unless such license or
registration has been reinstated and is current and unrestricted.
18VAC110-60-180. Employee training.
A. All employees of a pharmaceutical processor shall complete
training prior to the employee commencing work at the pharmaceutical processor.
At a minimum, the training shall be in the following areas:
1. The proper use of security measures and controls that have
been adopted for the prevention of diversion, theft, or loss of Cannabis, to
include the seeds, any parts or extracts of the Cannabis plants, cannabidiol
oil, and THC-A cannabis oil;
2. Procedures and instructions for responding to an emergency;
3. Professional conduct, ethics, and state and federal
statutes and regulations regarding patient confidentiality; and
4. Developments in the field of the medical use of cannabidiol
oil or THC-A cannabis oil.
B. Prior to regular performance of assigned tasks, the
employee shall also receive on-the-job training and other related education,
which shall be commensurate with the tasks assigned to the employee.
C. The PIC shall assure the continued competency of all
employees through continuing in-service training that is provided at least
annually, is designed to supplement initial training, and includes any guidance
specified by the board.
D. The PIC shall be responsible for maintaining a written
record documenting the initial and continuing training of all employees that
shall contain:
1. The name of the person receiving the training;
2. The dates of the training;
3. A general description of the topics covered;
4. The name of the person supervising the training; and
5. The signatures of the person receiving the training and the
PIC.
E. When a change of pharmaceutical processor PIC occurs, the
new PIC shall review the training record and sign it, indicating that the new
PIC understands its contents.
F. A pharmaceutical processor shall maintain the record
documenting the employee training and make it available in accordance with
regulations.
18VAC110-60-190. Pharmacy technicians; ratio; supervision and
responsibility.
A. The ratio of pharmacy technicians to pharmacists on duty
in the areas of a pharmaceutical processor designated for production or
dispensing shall not exceed four pharmacy technicians to one pharmacist.
B. The pharmacist providing direct supervision of pharmacy
technicians may be held responsible for the pharmacy technicians' actions. Any
violations relating to the dispensing of cannabidiol oil or THC-A cannabis
oil resulting from the actions of a pharmacy technician shall constitute
grounds for action against the license of the pharmacist and the registration
of the pharmacy technician. As used in this subsection, "direct
supervision" means a supervising pharmacist who:
1. Is on duty where the pharmacy technician is performing
routine cannabidiol oil or THC-A cannabis oil production or
dispensing functions; and
2. Conducts in-process and final checks on the pharmacy
technician's performance.
C. Pharmacy technicians shall not:
1. Counsel a registered patient or the patient's parent or
legal guardian regarding (i) cannabidiol oil, THC-A cannabis oil,
or other drugs either before or after cannabidiol oil or THC-A cannabis
oil has been dispensed or (ii) any medical information contained in a patient
medication record;
2. Consult with the practitioner who certified the qualifying
patient, or the practitioner's agent, regarding a patient or any medical
information pertaining to the patient's cannabidiol oil or THC-A cannabis
oil or any other drug the patient may be taking;
3. Interpret the patient's clinical data or provide medical
advice;
4. Determine whether a different formulation of cannabidiol
oil or THC-A cannabis oil should be substituted for the cannabidiol
oil or THC-A cannabis oil product or formulation recommended by the
practitioner or requested by the registered patient or parent or legal
guardian; or
5. Communicate with a practitioner who certified a registered
patient, or the practitioner's agent, to obtain a clarification on a qualifying
patient's written certification or instructions.
18VAC110-60-200. Responsibilities of the PIC.
A. No person shall be PIC for more than one pharmaceutical
processor or for one processor and a pharmacy at any one time. A processor
shall employ the PIC at the pharmaceutical processor for at least 35 hours per
week, except as otherwise authorized by the board.
B. The PIC or the pharmacist on duty shall control all
aspects of the practice of the pharmaceutical processor. Any decision
overriding such control of the PIC or other pharmacist on duty may be grounds
for disciplinary action against the pharmaceutical processor permit.
C. The pharmaceutical processor PIC shall be responsible for
ensuring that:
1. Pharmacy technicians are registered and all employees are
properly trained;
2. All record retention requirements are met;
3. All requirements for the physical security of the Cannabis,
to include the seeds, any parts or extracts of the Cannabis plants, the
cannabidiol oil, and the THC-A cannabis oil are met;
4. The pharmaceutical processor has appropriate pharmaceutical
reference materials to ensure that cannabidiol oil or THC-A cannabis
oil can be properly dispensed;
5. The following items are conspicuously posted in the
pharmaceutical processor in a location and in a manner so as to be clearly and
readily identifiable to registered patients, parents, or legal guardians:
a. Pharmaceutical processor permit;
b. Licenses for all pharmacists practicing at the
pharmaceutical processor; and
c. The price of all cannabidiol oil or THC-A cannabis
oil products offered by the pharmaceutical processor; and
6. Any other required filings or notifications are made on
behalf of the processor as set forth in regulation.
D. When the PIC ceases practice at a pharmaceutical processor
or no longer wishes to be designated as PIC, he shall immediately return the
pharmaceutical processor permit to the board indicating the effective date on
which he ceased to be the PIC.
E. An outgoing PIC shall have the opportunity to take a
complete and accurate inventory of all Cannabis, to include plants, extracts, cannabidiol
oil, or THC-A cannabis oil on hand on the date he ceases to
be the PIC, unless the owner submits written notice to the board showing good
cause as to why this opportunity should not be allowed.
F. A PIC who is absent from practice for more than 30
consecutive days shall be deemed to no longer be the PIC. If the PIC knows of
an upcoming absence of longer than 30 days, he shall be responsible for
notifying the board and returning the permit. For unanticipated absences by the
PIC that exceed 15 days with no known return date within the next 15 days, the
permit holder shall immediately notify the board and shall obtain a new PIC.
G. An application for a permit designating the new PIC shall
be filed with the required fee within 14 days of the original date of
resignation or termination of the PIC on a form provided by the board. It shall
be unlawful for a pharmaceutical processor to operate without a new permit past
the 14-day deadline unless the board receives a request for an extension prior
to the deadline. The executive director for the board may grant an extension
for up to an additional 14 days for good cause shown.
Part V
Operation of a Pharmaceutical Processor
18VAC110-60-210. General provisions.
A. A pharmaceutical processor shall sell cannabidiol oil
or THC-A cannabis oil only in a child-resistant, secure, and
light-resistant container. Upon a written request from the registered patient,
parent, or legal guardian, the oil may be dispensed in a non-child-resistant
container so long as all labeling is maintained with the product.
B. Only a pharmacist may dispense cannabidiol oil or THC-A
cannabis oil to registered patients or parents or legal guardians of
patients who are minors or incapacitated adults and who are registered with the
board. A pharmacy technician who meets the requirements of 18VAC110-60-170 C
may assist, under the direct supervision of a pharmacist, in the dispensing and
selling of cannabidiol oil or THC-A cannabis oil.
C. The PIC or pharmacist on duty shall restrict access to the
pharmaceutical processor to:
1. A person whose responsibilities necessitate access to the
pharmaceutical processor and then for only as long as necessary to perform the
person's job duties; or
2. A person who is a registered patient, parent, or legal
guardian, in which case such person shall not be permitted behind the service
counter or in other areas where Cannabis plants, extracts, cannabidiol oil,
or THC-A cannabis oil is stored.
D. All pharmacists and pharmacy technicians shall at all
times while at the pharmaceutical processor have their current license or
registration available for inspection by the board or the board's agent.
E. While inside the pharmaceutical processor, all pharmaceutical
processor employees shall wear name tags or similar forms of identification
that clearly identify them, including their position at the pharmaceutical
processor.
F. A pharmaceutical processor shall be open for registered
patients, parents, or legal guardians to purchase cannabidiol oil or THC-A
cannabis oil products for a minimum of 35 hours a week, except as
otherwise authorized by the board.
G. A pharmaceutical processor that closes during its normal
hours of operation shall implement procedures to notify registered patients,
parents, and legal guardians of when the pharmaceutical processor will resume
normal hours of operation. Such procedures may include telephone system
messages and conspicuously posted signs. If the pharmaceutical processor is or
will be closed during its normal hours of operation for longer than two
business days, the pharmaceutical processor shall immediately notify the board.
H. A pharmacist shall counsel registered patients, parents,
and legal guardians regarding the use of cannabidiol oil or THC-A cannabis
oil. Such counseling shall include information related to safe techniques for
proper use and storage of cannabidiol oil or THC-A cannabis oil
and for disposal of the oils in a manner that renders them nonrecoverable.
I. The pharmaceutical processor shall establish, implement,
and adhere to a written alcohol-free, drug-free, and smoke-free work place
policy that shall be available to the board or the board's agent upon request.
18VAC110-60-220. Pharmaceutical processor prohibitions.
A. No pharmaceutical processor shall:
1. Cultivate Cannabis plants or produce or dispense cannabidiol
oil or THC-A cannabis oil in any place except the approved facility
at the address of record on the application for the pharmaceutical processor
permit;
2. Sell, deliver, transport, or distribute Cannabis, including
cannabidiol oil or THC-A cannabis oil, to any other facility;
3. Produce or manufacture cannabidiol oil or THC-A cannabis
oil for use outside of Virginia; or
4. Provide cannabidiol oil or THC-A cannabis oil
samples.
B. No Except for certain employee access to secured
areas designated for cultivation and authorized by the PIC pursuant to §
54.1-3442.6 of the Code of Virginia, no pharmaceutical processor shall be
open or in operation, and no person shall be in the pharmaceutical processor,
unless a pharmacist is on the premises and directly supervising the activity
within the pharmaceutical processor. At all other times, the pharmaceutical
processor shall be closed and properly secured.
C. No pharmaceutical processor shall sell anything other than
cannabidiol oil or THC-A cannabis oil products from the
pharmaceutical processor.
D. A pharmaceutical processor shall not advertise cannabidiol
oil or THC-A cannabis oil products, except it may post the following
information on websites:
1. Name and location of the processor;
2. Contact information for the processor;
3. Hours and days the pharmaceutical processor is open for
dispensing cannabidiol oil or THC-A cannabis oil products;
4. Laboratory results;
5. Product information and pricing; and
6. Directions to the processor facility.
E. No cannabidiol oil or THC-A cannabis oil
shall be consumed on the premises of a pharmaceutical processor, except for
emergency administration to a registered patient.
F. No person except a pharmaceutical processor employee or a
registered patient, parent, or legal guardian shall be allowed on the premises
of a processor with the following exceptions: laboratory staff may enter a
processor for the sole purpose of identifying and collecting Cannabis,
cannabidiol oil, or THC-A cannabis oil samples for purposes
of conducting laboratory tests; the board or the board's authorized
representative may waive the prohibition upon prior written request.
G. All persons who have been authorized in writing to enter
the facility by the board or the board's authorized representative shall obtain
a visitor identification badge from a pharmaceutical processor employee prior
to entering the pharmaceutical processor.
1. An employee shall escort and monitor an authorized visitor
at all times the visitor is in the pharmaceutical processor.
2. A visitor shall visibly display the visitor identification
badge at all times the visitor is in the pharmaceutical processor and shall
return the visitor identification badge to a pharmaceutical processor employee
upon exiting the pharmaceutical processor.
3. All visitors shall log in and out. The pharmaceutical
processor shall maintain the visitor log that shall include the date, time, and
purpose of the visit and that shall be available to the board.
4. If an emergency requires the presence of a visitor and
makes it impractical for the pharmaceutical processor to obtain a waiver from
the board, the processor shall provide written notice to the board as soon as
practicable after the onset of the emergency. Such notice shall include the
name and company affiliation of the visitor, the purpose of the visit, and the
date and time of the visit. A pharmaceutical processor shall monitor the
visitor and maintain a log of such visit as required by this subsection.
H. No cannabidiol oil or THC-A cannabis oil
shall be sold, dispensed, or distributed via a delivery service or any other
manner outside of a pharmaceutical processor, except that a registered parent
or legal guardian or an agent of the processor may deliver cannabidiol oil
or THC-A cannabis oil to the registered patient or in accordance
with 18VAC110-60-310 A.
I. Notwithstanding the requirements of subsection F of this
section, an agent of the board or local law enforcement or other federal,
state, or local government officials may enter any area of a pharmaceutical
processor if necessary to perform their governmental duties.
18VAC110-60-230. Inventory requirements.
A. Each pharmaceutical processor prior to commencing business
shall:
1. Conduct an initial comprehensive inventory of all Cannabis
plants, including the seeds, parts of plants, extracts, cannabidiol oil,
and THC-A cannabis oil, at the facility. The inventory shall
include, at a minimum, the date of the inventory, a summary of the inventory
findings, and the name, signature, and title of the pharmacist or pharmacy
technician who conducted the inventory. If a facility commences business with
no Cannabis on hand, the pharmacist shall record this fact as the initial
inventory; and
2. Establish ongoing inventory controls and procedures for the
conduct of inventory reviews and comprehensive inventories of all Cannabis
plants, including the seeds, parts of plants, extracts, cannabidiol oil,
and THC-A cannabis oil, that shall enable the facility to detect
any diversion, theft, or loss in a timely manner.
B. Upon commencing business, each pharmaceutical processor
and production facility shall conduct a weekly inventory of all Cannabis
plants, including the seeds, parts of plants, cannabidiol oil, and THC-A
cannabis oil in stock, that shall include, at a minimum, the date of the
inventory, a summary of the inventory findings, and the name, signature, and
title of the pharmacist or pharmacy technician who conducted the inventory. The
record of all cannabidiol oil and THC-A cannabis oil sold,
dispensed, or otherwise disposed of shall show the date of sale; the name of
the pharmaceutical processor; the registered patient, parent, or legal guardian
to whom the cannabidiol oil or THC-A cannabis oil was sold; the
address of such person; and the kind and quantity of cannabidiol oil or
THC-A cannabis oil sold.
C. The record of all cannabidiol oil and THC-A cannabis
oil sold, dispensed, or otherwise disposed of shall show the date of sale or
disposition; the name of the pharmaceutical processor; the name and address of
the registered patient, parent, or legal guardian to whom the cannabidiol
oil or THC-A cannabis oil was sold; the kind and quantity of cannabidiol
oil or THC-A cannabis oil sold or disposed of; and the method of
disposal.
D. A complete and accurate record of all Cannabis plants,
including the seeds, parts of plants, cannabidiol oil, and THC-A cannabis
oil on hand shall be prepared annually on the anniversary of the initial
inventory or such other date that the PIC may choose, so long as it is not more
than one year following the prior year's inventory.
E. All inventories, procedures, and other documents required
by this section shall be maintained on the premises and made available to the
board or its agent.
F. Inventory records shall be maintained for three years from
the date the inventory was taken.
G. Whenever any sample or record is removed by a person
authorized to enforce state or federal law for the purpose of investigation or
as evidence, such person shall tender a receipt in lieu thereof and the receipt
shall be kept for a period of at least three years.
18VAC110-60-240. Security requirements.
A. A pharmaceutical processor shall initially cultivate only
the number of Cannabis plants necessary to produce cannabidiol oil or THC-A
cannabis oil for the number of patients anticipated within the first
nine months of operation. Thereafter, the processor shall:
1. Not maintain more than 12 Cannabis plants per patient at
any given time based on dispensing data from the previous 90 days;
2. Not maintain cannabidiol oil or THC-A cannabis
oil in excess of the quantity required for normal, efficient operation;
3. Maintain all Cannabis plants, seeds, parts of plants,
extracts, cannabidiol oil, and THC-A cannabis oil in a
secure area or location accessible only by the minimum number of authorized
employees essential for efficient operation;
4. Store all cut parts of Cannabis plants, extracts, cannabidiol
oil, or THC-A cannabis oil in an approved safe or approved
vault within the pharmaceutical processor and not sell cannabidiol oil or
THC-A cannabis oil products when the pharmaceutical processor is
closed;
5. Keep all approved safes, approved vaults, or any other
approved equipment or areas used for the production, cultivation, harvesting,
processing, manufacturing, or storage of cannabidiol oil or THC-A cannabis
oil securely locked or protected from entry, except for the actual time
required to remove or replace the Cannabis, seeds, parts of plants, extracts, cannabidiol
oil, or THC-A cannabis oil;
6. Keep all locks and security equipment in good working
order;
7. Restrict access to keys or codes to all safes, approved
vaults, or other approved equipment or areas to pharmacists practicing at the
pharmaceutical processor; and
8. Not allow keys to be left in the locks or accessible to
non-pharmacists.
B. The pharmaceutical processor shall have an adequate
security system to prevent and detect diversion, theft, or loss of Cannabis
seeds, plants, extracts, cannabidiol oil, or THC-A cannabis
oil. A device for the detection of breaking and a back-up alarm system with an
ability to remain operational during a power outage shall be installed in each
pharmaceutical processor. The installation and the device shall be based on
accepted alarm industry standards and subject to the following conditions:
1. The device shall be a sound, microwave, photoelectric,
ultrasonic, or other generally accepted and suitable device;
2. The device shall be monitored in accordance with accepted
industry standards, be maintained in operating order, have an auxiliary source
of power, and be capable of sending an alarm signal to the monitoring entity
when breached if the communication line is not operational;
3. The device shall fully protect the entire processor
facility and shall be capable of detecting breaking by any means when
activated;
4. The device shall include a duress alarm, a panic alarm, and
an automatic voice dialer; and
5. Access to the alarm system for the pharmaceutical processor
shall be restricted to the pharmacists working at the pharmaceutical processor,
and the system shall be activated whenever the pharmaceutical processor is
closed for business.
C. A pharmaceutical processor shall keep the outside
perimeter of the premises well-lit. A processor shall have video cameras in all
areas that may contain Cannabis plants, seeds, parts of plants, extracts, cannabidiol
oil, or THC-A cannabis oil and at all points of entry and
exit, which shall be appropriate for the normal lighting conditions of the area
under surveillance.
1. The processor shall direct cameras at all approved safes,
approved vaults, dispensing areas, cannabidiol oil or THC-A cannabis
oil sales areas, and any other area where Cannabis plants, seeds, extracts, cannabidiol
oil, or THC-A cannabis oil are being produced, harvested,
manufactured, stored, or handled. At entry and exit points, the processor shall
angle cameras so as to allow for the capture of clear and certain
identification of any person entering or exiting the facility;
2. The video system shall have:
a. A failure notification system that provides an audible,
text, or visual notification of any failure in the surveillance system. The
failure notification system shall provide an alert to the processor within five
minutes of the failure, either by telephone, email, or text message;
b. The ability to immediately produce a clear color still
photo that is a minimum of 9600 dpi from any camera image, live or recorded;
c. A date and time stamp embedded on all recordings. The date
and time shall be synchronized and set correctly and shall not significantly
obscure the picture; and
d. The ability to remain operational during a power outage;
3. All video recordings shall allow for the exporting of still
images in an industry standard image format. Exported video shall have the
ability to be archived in a proprietary format that ensures authentication of
the video and guarantees that no alteration of the recorded image has taken
place. Exported video shall also have the ability to be saved in an industry
standard file format that can be played on a standard computer operating
system. A pharmaceutical processor shall erase all recordings prior to disposal
or sale of the facility; and
4. The processor shall make 24-hour recordings from all video
cameras available for immediate viewing by the board or the board's agent upon
request and shall retain the recordings for at least 30 days. If a processor is
aware of a pending criminal, civil, or administrative investigation or legal
proceeding for which a recording may contain relevant information, the
processor shall retain an unaltered copy of the recording until the
investigation or proceeding is closed or the entity conducting the
investigation or proceeding notifies the pharmaceutical processor PIC that it
is not necessary to retain the recording.
D. The processor shall maintain all security system equipment
and recordings in a secure location so as to prevent theft, loss, destruction,
or alterations. All security equipment shall be maintained in good working
order and shall be tested at least every six months.
E. A pharmaceutical processor shall limit access to
surveillance areas to persons who are essential to surveillance operations,
law-enforcement agencies, security system service employees, the board or the
board's agent, and others when approved by the board. A processor shall make
available a current list of authorized employees and security system service
employees who have access to the surveillance room to the processor. The
pharmaceutical processor shall keep all onsite surveillance rooms locked and
shall not use such rooms for any other function.
F. If diversion, theft, or loss of Cannabis plants, seeds,
parts of plants, extracts, cannabidiol oil, or THC-A cannabis
oil has occurred from a pharmaceutical processor, the board may require
additional safeguards to ensure the security of the products.
18VAC110-60-250. Requirements for the storage and handling of
Cannabis, cannabidiol oil, or THC-A cannabis oil.
A. A pharmaceutical processor shall:
1. Have storage areas that provide adequate lighting,
ventilation, sanitation, temperature, and humidity as defined in 18VAC110-60-10
and space, equipment, and security conditions for the cultivation of Cannabis
and the production and dispensing of cannabidiol oil or THC-A cannabis
oil;
2. Separate for storage in a quarantined area Cannabis plants,
seeds, parts of plants, extracts, including cannabidiol oil or THC-A cannabis
oil, that is outdated, damaged, deteriorated, misbranded, or adulterated, or
whose containers or packaging have been opened or breached, until such Cannabis
plants, seeds, parts of plants, extracts, cannabidiol oil, or THC-A
cannabis oil are destroyed;
3. Be maintained in a clean, sanitary, and orderly condition;
and
4. Be free from infestation by insects, rodents, birds, or
vermin of any kind.
B. A processor shall compartmentalize all areas in the
facility based on function and shall restrict access between compartments. The
processor shall establish, maintain, and comply with written policies and
procedures regarding best practices for the secure and proper cultivation of
Cannabis and production of cannabidiol oil or THC-A cannabis oil.
These shall include policies and procedures that:
1. Restrict movement between compartments;
2. Provide for different colored identification cards for
facility employees based on the compartment to which they are assigned at a
given time so as to ensure that only employees necessary for a particular
function have access to that compartment of the facility;
3. Require pocketless clothing for all production facility
employees working in an area containing Cannabis plants, seeds, and extracts,
including cannabidiol oil or THC-A cannabis oil; and
4. Document the chain of custody of all Cannabis plants, parts
of plants, seeds, extracts, cannabidiol oil, and THC-A cannabis
oil products.
C. The PIC shall establish, maintain, and comply with written
policies and procedures for the cultivation, production, security, storage, and
inventory of Cannabis, including seeds, parts of plants, extracts, cannabidiol
oil, and THC-A cannabis oil. Such policies and procedures
shall include methods for identifying, recording, and reporting diversion,
theft, or loss, and for correcting all errors and inaccuracies in inventories.
Pharmaceutical processors shall include in their written policies and
procedures a process for the following:
1. Handling mandatory and voluntary recalls of cannabidiol
oil or THC-A cannabis oil. The process shall be adequate to deal
with recalls due to any action initiated at the request of the board and any
voluntary action by the pharmaceutical processor to (i) remove defective or
potentially defective cannabidiol oil or THC-A cannabis oil from
the market or (ii) promote public health and safety by replacing existing cannabidiol
oil or THC-A cannabis oil with improved products or packaging;
2. Preparing for, protecting against, and handling any crises
that affect the security or operation of any facility in the event of strike,
fire, flood, or other natural disaster, or other situations of local, state, or
national emergency;
3. Ensuring that any outdated, damaged, deteriorated,
misbranded, or adulterated Cannabis, including seeds, parts of plants,
extracts, cannabidiol oil, and THC-A cannabis oil, is
segregated from all other Cannabis, seeds, parts of plants, extracts, cannabidiol
oil, and THC-A cannabis oil and destroyed. This procedure
shall provide for written documentation of the Cannabis, including seeds, parts
of plants, extracts, cannabidiol oil, and THC-A cannabis
oil disposition; and
4. Ensuring the oldest stock of Cannabis, including seeds,
parts of plants, extracts, cannabidiol oil, and THC-A cannabis
oil product is used first. The procedure may permit deviation from this
requirement if such deviation is temporary and appropriate.
D. The processor shall store all Cannabis, including seeds,
parts of plants, extracts, cannabidiol oil, and THC-A cannabis
oil, in the process of production, transfer, or analysis in such a manner as to
prevent diversion, theft, or loss; shall make Cannabis, including the seeds,
parts of plants, extracts, cannabidiol oil, and THC-A cannabis
oil accessible only to the minimum number of specifically authorized employees
essential for efficient operation; and shall return the aforementioned items to
their secure location immediately after completion of the production, transfer,
or analysis process or at the end of the scheduled business day. If a
production process cannot be completed at the end of a working day, the
pharmacist shall securely lock the processing area or tanks, vessels, bins, or
bulk containers containing Cannabis, including the seeds, parts of plants,
extracts, cannabidiol oil, and THC-A cannabis oil, inside
an area or building that affords adequate security.
18VAC110-60-260. Recordkeeping requirements.
A. If a pharmaceutical processor uses an electronic system
for the storage and retrieval of patient information or other records related
to cultivating, producing, and dispensing cannabidiol oil or THC-A cannabis
oil, the pharmaceutical processor shall use a system that:
1. Guarantees the confidentiality of the information contained
in the system;
2. Is capable of providing safeguards against erasures and
unauthorized changes in data after the information has been entered and
verified by the pharmacist; and
3. Is capable of being reconstructed in the event of a
computer malfunction or accident resulting in the destruction of the data bank.
B. All records relating to the inventory, laboratory results,
and dispensing shall be maintained for a period of three years and shall be
made available to the board upon request.
18VAC110-60-270. Reportable events; security.
A. Upon becoming aware of (i) diversion, theft, loss, or
discrepancies identified during inventory; (ii) unauthorized destruction of any
cannabidiol oil or THC-A cannabis oil; or (iii) any loss or
unauthorized alteration of records related to cannabidiol oil or THC-A cannabis
oil or qualifying patients, a pharmacist or pharmaceutical processor shall
immediately notify appropriate law-enforcement authorities and the board.
B. A pharmacist or processor shall provide the notice
required by subsection A of this section to the board by way of a signed
statement that details the circumstances of the event, including an accurate
inventory of the quantity and brand names of cannabidiol oil or THC-A cannabis
oil diverted, stolen, lost, destroyed, or damaged and confirmation that the
local law-enforcement authorities were notified. A pharmacist or processor
shall make such notice no later than 24 hours after discovery of the event.
C. A pharmacist or pharmaceutical processor shall notify the
board no later than the next business day, followed by written notification no
later than 10 business days, of any of the following:
1. An alarm activation or other event that requires a response
by public safety personnel;
2. A breach of security;
3. The failure of the security alarm system due to a loss of
electrical support or mechanical malfunction that is expected to last longer
than eight hours; and
4. Corrective measures taken if any.
D. A pharmacist or pharmaceutical processor shall immediately
notify the board of an employee convicted of a felony or any offense referenced
in § 54.1-3442.6 of the Code of Virginia.
Part VI
Cultivation, Production, and Dispensing of Cannabidiol Oil or THC-A Cannabis
Oil
18VAC110-60-280. Cultivation and production of cannabidiol
oil or THC-A cannabis oil.
A. No cannabidiol oil or THC-A cannabis oil
shall have had pesticide chemicals or petroleum-based solvents used during the
cultivation, extraction, production, or manufacturing process, except that the
board may authorize the use of pesticide chemicals for purposes of addressing
an infestation that could result in a catastrophic loss of Cannabis crops.
B. Cultivation methods for Cannabis plants and extraction
methods used to produce the cannabidiol oil and THC-A cannabis oil
shall be performed in a manner deemed safe and effective based on current
standards or scientific literature.
C. Any Cannabis plant, seed, parts of plant, extract, cannabidiol
oil, or THC-A cannabis oil not in compliance with this
section shall be deemed adulterated.
18VAC110-60-285. Registration of products.
A. A pharmaceutical processor shall assign a brand name to
each product of cannabidiol oil or THC-A cannabis oil. The
pharmaceutical processor shall register each brand name with the board on a
form prescribed by the board prior to any dispensing and shall associate each
brand name with a specific laboratory test that includes a terpenes profile and
a list of all active ingredients, including:
1. Tetrahydrocannabinol (THC);
2. Tetrahydrocannabinol acid (THC-A);
3. Cannabidiols (CBD); and
4. Cannabidiolic acid (CBDA).
B. A pharmaceutical processor shall not label two products
with the same brand name unless the laboratory test results for each product
indicate that they contain the same level of each active ingredient listed in
subsection A of this section within a range of 90% to 110%.
C. The board shall not register any brand name that:
1. Is identical to or confusingly similar to the name of an
existing commercially available product;
2. Is identical to or confusingly similar to the name of an
unlawful product or substance;
3. Is confusingly similar to the name of a previously approved
cannabidiol oil or THC-A cannabis oil product brand name;
4. Is obscene or indecent;
5. May encourage the use of marijuana, cannabidiol oil,
or THC-A cannabis oil for recreational purposes;
6. May encourage the use of cannabidiol oil or THC-A cannabis
oil for a disease or condition other than the disease or condition the
practitioner intended to treat;
7. Is customarily associated with persons younger than the age
of 18; or
8. Is related to the benefits, safety, or efficacy of the cannabidiol
oil or THC-A cannabis oil product unless supported by substantial
evidence or substantial clinical data.
18VAC110-60-290. Labeling of batch of cannabidiol oil or
THC-A cannabis oil products.
A. Cannabidiol oil or THC-A Cannabis oil
produced as a batch shall not be adulterated.
B. Cannabidiol oil or THC-A Cannabis oil
produced as a batch shall be:
1. Processed, packaged, and labeled according to the U.S. Food
and Drug Administration's Current Good Manufacturing Practice in Manufacturing,
Packaging, Labeling, or Holding Operations for Dietary Supplements, 21 CFR Part
111; and
2. Labeled with:
a. The name and address of the pharmaceutical processor;
b. The brand name of the cannabidiol oil or THC-A cannabis
oil product that was registered with the board pursuant to 18VAC110-20-285;
c. A unique serial number that matches the product with the
pharmaceutical processor batch and lot number so as to facilitate any warnings
or recalls the board or pharmaceutical processor deem appropriate;
d. The date of testing and packaging;
e. The expiration date based on stability testing;
f. The quantity of cannabidiol oil or THC-A cannabis
oil contained in the batch;
g. A terpenes profile and a list of all active ingredients,
including:
(1) Tetrahydrocannabinol (THC);
(2) Tetrahydrocannabinol acid (THC-A);
(3) Cannabidiol (CBD); and
(4) Cannabidiolic acid (CBDA); and
h. A pass or fail rating based on the laboratory's
microbiological, mycotoxins, heavy metals, residual solvents, and pesticide
chemical residue analysis.
18VAC110-60-300. Laboratory requirements; testing.
A. No pharmaceutical processor shall utilize a laboratory to
handle, test, or analyze cannabidiol oil or THC-A cannabis oil
unless such laboratory:
1. Is independent from all other persons involved in the cannabidiol
oil or THC-A cannabis oil industry in Virginia, which shall mean
that no person with a direct or indirect interest in the laboratory shall have
a direct or indirect financial interest in a pharmacist, pharmaceutical
processor, certifying practitioner, or any other entity that may benefit from
the production, manufacture, dispensing, sale, purchase, or use of cannabidiol
oil or THC-A cannabis oil; and
2. Has employed at least one person to oversee and be
responsible for the laboratory testing who has earned from a college or university
accredited by a national or regional certifying authority at least (i) a
master's level degree in chemical or biological sciences and a minimum of two
years of post-degree laboratory experience or (ii) a bachelor's degree in
chemical or biological sciences and a minimum of four years of post-degree
laboratory experience.
B. After processing and before dispensing the cannabidiol
oil or THC-A cannabis oil product, a pharmaceutical processor shall
make a sample available from each homogenized batch of product for a
laboratory to (i) test for microbiological contaminants, mycotoxins, heavy
metals, residual solvents, and pesticide chemical residue and (ii) conduct an
active ingredient analysis and terpenes profile. The sample size shall be a
statistically valid sample as determined by the board Each laboratory
shall determine a valid sample size for testing, which may vary due to sample
matrix, analytical method, and laboratory-specific procedures. A minimum sample
size of 0.5% of individual units for dispensing or distribution from each
homogenized batch is required to achieve a representative sample for analysis.
C. From the time that a batch of cannabidiol oil or THC-A
cannabis oil product has been homogenized for sample testing until the
laboratory provides the results from its tests and analysis, the pharmaceutical
processor shall segregate and withhold from use the entire batch, except the
samples that have been removed by the laboratory for testing. During this
period of segregation, the pharmaceutical processor shall maintain the batch in
a secure, cool, and dry location so as to prevent the batch from becoming
contaminated or losing its efficacy.
D. Under no circumstances shall a pharmaceutical processor
sell a cannabidiol oil or THC-A cannabis oil product prior to the
time that the laboratory has completed its testing and analysis and provided a
certificate of analysis to the pharmaceutical processor or other designated
facility employee.
E. The processor shall require the laboratory to immediately
return or properly dispose of any cannabidiol or THC-A cannabis
oil products and materials upon the completion of any testing, use, or
research.
F. If a sample of cannabidiol oil or THC-A cannabis
oil product does not pass the microbiological, mycotoxin, heavy metal, or
pesticide chemical residue test based on the standards set forth in this
subsection, the pharmaceutical processor shall dispose of the entire batch from
which the sample was taken.
1. For purposes of the microbiological test, a cannabidiol
oil or THC-A cannabis oil sample shall be deemed to have passed if
it satisfies the standards set forth in Section 1111 of the United States
Pharmacopeia.
2. For purposes of the mycotoxin test, a sample of cannabidiol
oil or THC-A cannabis oil product shall be deemed to have passed if
it meets the following standards:
Test Specification
|
|
Aflatoxin B1
|
<20 ug/kg of Substance
|
Aflatoxin B2
|
<20 ug/kg of Substance
|
Aflatoxin G1
|
<20 ug/kg of Substance
|
Aflatoxin G2
|
<20 ug/kg of Substance
|
Ochratoxin A
|
<20 ug/kg of Substance
|
3. For purposes of the heavy metal test, a sample of cannabidiol
oil or THC-A cannabis oil product shall be deemed to have passed if
it meets the following standards:
Metal
|
Limits - parts per million (ppm)
|
Arsenic
|
<10 ppm
|
Cadmium
|
<4.1 ppm
|
Lead
|
<10 ppm
|
Mercury
|
<2 ppm
|
4. For purposes of the pesticide chemical residue test, a
sample of cannabidiol oil or THC-A cannabis oil product shall be
deemed to have passed if it satisfies the most stringent acceptable standard
for a pesticide chemical residue in any food item as set forth in Subpart C of
the federal Environmental Protection Agency's regulations for Tolerances and
Exemptions for Pesticide Chemical Residues in Food, 40 CFR Part 180.
5. For purposes of the active ingredient analysis, a sample of
the cannabidiol oil or THC-A cannabis oil product shall be tested
for:
a. Tetrahydrocannabinol (THC);
b. Tetrahydrocannabinol acid (THC-A);
c. Cannabidiols (CBD); and
d. Cannabidiolic acid (CBDA).
6. For the purposes of the residual solvent test, a sample of
the cannabidiol oil or THC-A cannabis oil product shall be deemed
to have passed if it meets the standards and limits recommended by the American
Herbal Pharmacopia for Cannabis Inflorescence. If a sample does not pass the
residual solvents test, the batch can be remediated with further processing.
After further processing, the batch must be retested for microbiological,
mycotoxin, heavy metal, residual solvents, and pesticide chemical residue, and
an active ingredient analysis and terpenes profile must be conducted.
G. If a sample of cannabidiol oil or THC-A cannabis
oil product passes the microbiological, mycotoxin, heavy metal, residual
solvent, and pesticide chemical residue test, the entire batch may be utilized
by the processor for immediate packaging and labeling for sale. An expiration
date shall be assigned to the product that is based upon validated stability
testing that addresses product stability when opened and the shelf-life for unopened
products.
H. The processor shall require the laboratory to file with
the board an electronic copy of each laboratory test result for any batch that
does not pass the microbiological, mycotoxin, heavy metal, residual solvents,
or pesticide chemical residue test at the same time that it transmits those
results to the pharmaceutical processor. In addition, the laboratory shall
maintain the laboratory test results and make them available to the board or an
agent of the board.
I. Each pharmaceutical processor shall have such laboratory
results available upon request to registered patients, parents, or legal
guardians and registered practitioners who have certified qualifying patients.
18VAC110-60-310. Dispensing of cannabidiol oil or THC-A cannabis
oil.
A. A pharmacist in good faith may dispense cannabidiol oil
or THC-A cannabis oil to any registered patient, parent, or legal
guardian as indicated on the written certification.
1. Prior to the initial dispensing of cannabis oil
pursuant to each written certification, the pharmacist or pharmacy technician
at the location of the pharmaceutical processor shall view a current photo
identification of the patient, parent, or legal guardian. The pharmacist or
pharmacy technician shall verify in the Virginia Prescription Monitoring
Program of the Department of Health Professions or other program recognized by
the board that the registrations are current, the written certification has not
expired, and the date and quantity of the last dispensing of cannabidiol oil
or THC-A cannabis oil to the registered patient.
2. The pharmacist or pharmacy technician shall make and
maintain for three years a paper or electronic copy of the current written
certification that provides an exact image of the document that is clearly legible.
3. Prior to any subsequent dispensing, the pharmacist,
pharmacy technician, or delivery agent shall view the current written
certification and a current photo identification and current registration of
the patient, parent, or legal guardian and shall maintain record of such
viewing in accordance with policies and procedures of the processor.
B. A pharmacist may dispense a portion of a registered
patient's 90-day supply of cannabidiol oil or THC-A cannabis oil.
The pharmacist may dispense the remaining portion of the 90-day supply of cannabidiol
oil or THC-A cannabis oil at any time except that no registered
patient, parent, or legal guardian shall receive more than a 90-day supply of cannabidiol
oil or THC-A cannabis oil in a 90-day period from any pharmaceutical
processor.
C. A dispensing record shall be maintained for three years
from the date of dispensing, and the pharmacist or pharmacy technician under
the direct supervision of the pharmacist shall affix a label to the container
of oil that contains:
1. A serial number assigned to the dispensing of the oil;
2. The brand name of cannabidiol oil or THC-A cannabis
oil that was registered with the board pursuant to 18VAC110-60-285 and its
strength;
3. The serial number assigned to the oil during production;
4. The date of dispensing the cannabidiol oil or THC-A cannabis
oil;
5. The quantity of cannabidiol oil or THC-A cannabis
oil dispensed;
6. A terpenes profile and a list of all active ingredients,
including:
a. Tetrahydrocannabinol (THC);
b. Tetrahydrocannabinol acid (THC-A);
c. Cannabidiol (CBD); and
d. Cannabidiolic acid (CBDA);
7. A pass rating based on the laboratory's microbiological,
mycotoxins, heavy metals, residual solvents, and pesticide chemical residue
analysis;
8. The name and registration number of the registered patient;
9. The name and registration number of the certifying
practitioner;
10. Directions for use as may be included in the
practitioner's written certification or otherwise provided by the practitioner;
11. The name or initials of the dispensing pharmacist;
12. Name, address, and telephone number of the pharmaceutical
processor;
13. Any necessary cautionary statement; and
14. A prominently printed expiration date based
on stability testing and the pharmaceutical processor's recommended
conditions of use and storage that can be read and understood by the ordinary
individual.
D. A pharmaceutical processor shall not label cannabidiol
oil or THC-A cannabis oil products as "organic" unless the
Cannabis plants have been organically grown and the cannabidiol oil or THC-A
cannabis oil products have been produced, processed, manufactured, and
certified to be consistent with organic standards in compliance with 7 CFR Part
205.
E. The cannabidiol oil or THC-A cannabis oil
shall be dispensed in child-resistant packaging, except as provided in
18VAC110-60-210 A. A package shall be deemed child-resistant if it satisfies
the standard for "special packaging" as set forth in the Poison
Prevention Packaging Act of 1970 Regulations, 16 CFR 1700.1(b)(4).
F. No person except a pharmacist or a pharmacy technician
operating under the direct supervision of a pharmacist shall alter, deface, or
remove any label so affixed.
G. A pharmacist shall be responsible for verifying the
accuracy of the dispensed oil in all respects prior to dispensing and shall
document that each verification has been performed.
H. A pharmacist shall document a registered patient's
self-assessment of the effects of cannabidiol oil or THC-A cannabis
oil in treating the registered patient's diagnosed condition or disease or the
symptoms thereof. A pharmaceutical processor shall maintain such documentation
in writing or electronically for three years from the date of dispensing and
such documentation shall be made available in accordance with regulation.
I. A pharmacist shall exercise professional judgment to
determine whether to dispense cannabidiol oil or THC-A cannabis
oil to a registered patient, parent, or legal guardian if the pharmacist suspects
that dispensing cannabidiol oil or THC-A cannabis oil to the
registered patient, parent, or legal guardian may have negative health or
safety consequences for the registered patient or the public.
18VAC110-60-330. Disposal of cannabidiol oil or THC-A cannabis
oil.
A. To mitigate the risk of diversion, a pharmaceutical
processor shall routinely and promptly dispose of undesired, excess,
unauthorized, obsolete, adulterated, misbranded, or deteriorated Cannabis
plants, including seeds, parts of plants, extracts, cannabidiol oil, or THC-A
cannabis oil by disposal in accordance with a plan approved by the board
and in a manner as to render the cannabidiol oil or THC-A cannabis
oil nonrecoverable.
B. The destruction shall be witnessed by the PIC and an agent
of the board or another pharmacist not employed by the pharmaceutical
processor. The persons disposing of the cannabidiol oil or THC-A cannabis
oil shall maintain and make available a separate record of each such disposal
indicating:
1. The date and time of disposal;
2. The manner of disposal;
3. The name and quantity of cannabidiol oil or THC-A cannabis
oil disposed of; and
4. The signatures of the persons disposing of the cannabidiol
oil or THC-A cannabis oil.
C. The record of disposal shall be maintained at the
pharmaceutical processor for three years from the date of disposal.
VA.R. Doc. No. R21-6395; Filed August 5, 2020, 2:45 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF PHYSICAL THERAPY
Proposed Regulation
Title of Regulation: 18VAC112-20. Regulations
Governing the Practice of Physical Therapy (amending 18VAC112-20-10, 18VAC112-20-27,
18VAC112-20-60, 18VAC112-20-65, 18VAC112-20-90, 18VAC112-20-130,
18VAC112-20-140, 18VAC112-20-200; adding 18VAC112-20-82).
Statutory Authority: §§ 54.1-2400 and 54.1-3474 of the
Code of Virginia.
Public Hearing Information:
October 20, 2020 - 9:15 a.m. - Department of Health
Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor Conference Center,
Henrico, VA 23233
Public Comment Deadline: October 30, 2020.
Agency Contact: Corie Tillman Wolf, Executive Director,
Board of Physical Therapy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4674, FAX (804) 527-4413, or email ptboard@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board of
Physical Therapy the authority to promulgate regulations to administer the
regulatory system. The specific statutory authority for regulation of physical
therapists and physical therapist assistants as part of an interstate compact
is found in § 54.1-3484 of the Code of Virginia.
Purpose: The purpose of this regulation is to establish
the requirement, including a fee, for obtaining and maintaining a compact
privilege to practice in Virginia without a Virginia license. In order to
protect public health and safety in the delivery of physical therapy services,
a practitioner holding a compact privilege is held to the same standards of practice
and is accountable for compliance with all applicable laws and regulations
pertaining to physical therapy.
Substance: To comply with compact rules, all applicants
for licensure are required to have criminal background checks, and holders of a
compact privilege are required to adhere to the laws and regulations governing
practice in the compact state in which they practice. A member state may set a
fee that is charged to obtain and renew a compact privilege in that state. The
amendments include setting the fee in Virginia at $50, which is similar to the
fee charged by other states. Regulations are amended to implement compact
requirements in Virginia.
Issues: The advantage to the public is increased access
to physical therapy service from practitioners holding a compact privilege to
practice in Virginia. Regulations for compact privilege holders require
compliance with laws and regulations and adherence to the same standard of
care. There are no disadvantages.
There are no particular advantages or disadvantages to the
agency. While it is expected that the board will experience some reduction in
revenue from applicants for licensure from other states, it will have revenue
from physical therapists and physical therapist assistants who want to have a
compact privilege in Virginia. Any resulting decrease in revenue can be
absorbed in the existing budget without any anticipated impact on current
licensees or the operation of the board.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 300 of the 2019 Acts of the Assembly (Chapter 300),1 the
Board of Physical Therapy (Board) proposes to amend 18VAC112-20
Regulations Governing the Practice of Physical Therapy in order for Virginia to
participate in the Physical Therapy Licensure Compact (Compact).2
The Compact is an agreement between member states to improve access to physical
therapy services for the public by increasing the mobility of eligible physical
therapy providers to work in multiple states. Also pursuant to Chapter 300, the
Board proposes to require that all applicants for licensure as a physical
therapist or physical therapist assistant undergo a criminal history background
check.
Background. Chapter 300 states that "The General Assembly
hereby enacts, and the Commonwealth of Virginia hereby enters into, the
Physical Therapy Licensure Compact with any and all jurisdictions legally
joining therein according to its terms, …"
Chapter 300 also stipulates that "The Board shall require
each applicant for licensure as a physical therapist or physical therapist
assistant to submit fingerprints and provide personal descriptive information
to be forwarded along with his fingerprints through the Central Criminal
Records Exchange to the Federal Bureau of Investigation for the purpose of
obtaining criminal history record information regarding the applicant. The cost
of fingerprinting and the criminal history record search shall be paid by the
applicant."
The second enactment clause of Chapter 300 states "That
the provisions of this act shall become effective on January 1, 2020. The third
enactment clause stipulates "That the Board of Physical Therapy shall
promulgate regulations to implement the provisions of this act to be effective
within 280 days of its enactment." An emergency regulation is currently in
place and expires on June 30, 2021. The Board is now proposing non-expiring
amendments.
Estimated Benefits and Costs.
Compact: Under the Compact, physical therapists and physical
therapist assistants licensed in a participating state are able to legally
practice in other participating states without obtaining additional licenses
from those other states. The physical therapists and physical therapist
assistants would need only to obtain a compact privilege. In order to obtain a
compact privilege, the applicant must:3
1. Hold a current, valid physical therapist or physical
therapist assistant license in their home state.
2. Have their home state be a member of the Compact and
actively issuing compact privileges.
3. Not have any encumbrances against any physical therapist or
physical therapist assistant license.
4. Not have any disciplinary action against any physical
therapist or physical therapist assistant license within the last two years.
5. Have the state where they are seeking a compact privilege be
a member of the Compact and actively issuing compact privileges.
6. Successfully complete the jurisprudence requirement for the
state(s) the applicant wants a compact privilege in. Note: Virginia does not
have a jurisprudence requirement.
7. Pay a $45 fee to the Physical Therapy Compact Commission.
8. Pay a fee to the state that the applicant wants a compact
privilege in. This fee is set by each member state. Note: The Board proposes
that the Commonwealth's fee for obtaining a compact privilege to practice in
Virginia be $50.
The current Compact member states are: Arizona, Arkansas,
Colorado, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New
Hampshire, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Texas,
Utah, Virginia, Washington, and West Virginia. Delaware, Georgia, Maryland,
Montana, New Jersey, South Carolina, South Dakota, and Wisconsin have enacted
legislation to join the Compact but are not yet issuing or accepting compact
privileges.4
According to a report from the Virginia Healthcare Workforce
Data Center,5 97 percent of Virginia physical therapists were
employed in the profession and involuntary unemployment6 was nearly
nonexistent. Thus, it appears that the Commonwealth would benefit from having
more qualified physical therapists available to offer their services. The
Compact makes it easier for physical therapists and physical therapist
assistants who are licensed in other states and wish to practice in the Commonwealth
to do so. Practitioners who move to Virginia for family reasons, such as having
a spouse in the military, and out-of-state practitioners who reside near the
border and are willing able to serve patients within the Commonwealth are
particularly likely candidates. The Compact also makes it easier for Virginia
practitioners to gain more clients across the border into neighboring states.
All states bordering Virginia either are current Compact members (Kentucky,
North Carolina, Tennessee, and West Virginia) or have enacted legislation to
join the Compact, but are not yet issuing or accepting compact privileges
(Maryland). The District of Columbia does not appear to participate in the
Compact.
The Commonwealth officially joined the Compact on January 1,
2020, and compact privileges were first issued on January 2, 2020. According to
the Department of Health Professions (DHP), as of February, 14, 2020, 27
compact privileges had been issued to practice in Virginia: 19 as physical
therapists and 8 physical therapist assistants. The privileges were obtained
from the following numbers of persons licensed in the following states: 11 in
North Carolina, 9 in Tennessee, 2 in Washington, 1 in Louisiana, 1 in Kentucky,
1 in Colorado, 1 in New Hampshire, and 1 in Missouri. As of January 29, 2020,
11 Virginia licensees obtained compact privileges for other Compact states:
seven as physical therapists and four as physical therapist assistants.
In its analysis of the impact of joining the Compact, the Board
provided data in 2016 showing that there were 2,587 physical therapists and
physical therapist assistants licensed in Virginia with out-of-state addresses.
If all of those licensees were in Compact states and all chose to let their
Virginia licenses lapse and opted for a compact privilege, the Board would lose
$315,575 with each biennial renewal. If the compact privilege fee for Virginia
is set at $50, the revenue from that number of licensees would be $129,350
(less 3.5% banking fee to Compact), resulting in a biennial loss of revenue of
$190,752. If all of the Virginia licensees with out-of-state addresses do not
choose to let their Virginia licenses lapse, then the reduction in revenue
would be less. As of June 30, 2019, the Board had a balance of $1,897,707;
consequently, any potential loss of revenue could be absorbed in the current
budget for the foreseeable future.
Criminal History Background Check: In order to join the
Compact, each member state must require that all applicants for licensure as a
physical therapist or physical therapist assistant undergo a criminal history
background check. As stated above, this requirement was part of Chapter 300 and
is now proposed to be added to the regulation. Adding this requirement enables
the Commonwealth to gain the benefits of joining the Compact, and would help
the Board gain additional information about license applicants when they are
being considered for licensure. The proposed requirement that all applicants
for licensure as a physical therapist or physical therapist assistant undergo a
criminal history background check would cost in-state applicants $35.95 and
out-of-state applicants $38.95.7
It is estimated that the requiring of criminal history
background checks for all licensure applicants would require the Virginia State
Police Central Criminal Records Exchange to process an additional 1,200 to
1,500 sets of fingerprints per year.8 It is estimated that one
additional employee would be needed for the additional fingerprint searches,
billing and record review at an annual rate of $66,439 (salary and fringe).9
Businesses and Other Entities Affected. There are 8,706
physical therapists and 3,691 physical therapist assistants licensed in
Virginia.10 According to survey data from a Virginia Healthcare
Workforce Data Center report published in March 2019, the primary type of
employers of physical therapists in the Commonwealth are distributed as
follows: 11
Establishment Type
|
Percentage
|
Private Practice, Group
|
17%
|
Rehabilitation Facility,
Outpatient Clinic
|
15%
|
Home Health Care
|
14%
|
General Hospital, Outpatient
Department
|
11%
|
General Hospital, Inpatient
Department
|
10%
|
Skilled Nursing Facility
|
8%
|
Private Practice, Solo
|
7%
|
Rehabilitation Facility,
Residential/Inpatient
|
4%
|
Academic Institution
|
3%
|
Physician Office
|
3%
|
K-12 School System
|
3%
|
Assisted Living or Continuing
Care Facility
|
2%
|
Other
|
5%
|
Adverse impact is indicated if there is any increase in net
cost or reduction in net revenue for any entity, even if the benefits exceed
the costs for all entities combined. Mandated by Chapter 300, the proposal to
require that all applicants for licensure as a physical therapist or physical
therapist assistant undergo a criminal history background check increases costs
for applicants. Thus, adverse impact is indicated to reflect the effects of the
non-discretionary changes mandated by legislation.
Small Businesses12 Affected.
Types and Estimated Number of Small Businesses Affected: The
Board regulates individual practitioners, but not their employers. Thus, data
on the number of small businesses affected is not available. The types of
businesses that are potentially affected and may qualify as small are described
in the table above.
Costs and Other Effects: Joining the Compact increases the
supply of physical therapists and physical therapist assistants that could be
hired by small firms in the Commonwealth. This may reduce their hiring costs.
Alternative Method that Minimizes Adverse Impact; There are no
clear alternative methods that both reduce adverse impact and meet the intended
policy goals.
Localities13 Affected.14 Virginia joining
the Compact may particularly affect localities bordering or otherwise near
North Carolina, Tennessee, Kentucky, West Virginia, and eventually Maryland.
The first four states listed are current members. Legislation has passed in
Maryland for that state to join as well.15
The proposal does not disproportionately affect any
particularly locality nor appear to introduce additional costs for local
governments.
Projected Impact on Employment. Joining the Compact increases
the supply of physical therapists and physical therapist assistants that could
practice in the Commonwealth. This may lead to more physical therapists and
physical therapist assistants working in Virginia.
Effects on the Use and Value of Private Property. To the extent
that increasing the supply of physical therapists and physical therapist
assistants who can practice in the Commonwealth decreases hiring costs for
employers, the value of the employing firms may increase. The proposed
amendments do not affect real estate development costs.
____________________________
1See https://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0300
2See http://ptcompact.org/about-compact
3Sources: http://ptcompact.org/portals/0/images/Eligibility_Requirements_to_Obtain_a_Compact
Privilege.pdf and http://ptcompact.org/Compact-Privilege-Fee-Jurisprudence-and-Waiver-Table
4Source: http://ptcompact.org/ptc-states.
5See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/
pt/2305PT2018.pdf This is for 2018,
the most recent data available.
6"Involuntary unemployment" is used here in
the colloquial sense. Technically someone who is voluntarily not seeking
employment would not be part of the labor force, and hence not technically
unemployed.
7Source: DHP
8See https://lis.virginia.gov/cgi-bin/legp604.exe?191+oth+SB1106FER122
+PDF
9Ibid
10Source: https://www.dhp.virginia.gov/about/stats/2020Q2/04CurrentLicenseCountQ2FY2020.pdf
11Source: https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/pt/
2305PT2018.pdf
12Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
13"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
14§ 2.2-4007.04 defines "particularly affected"
as bearing disproportionate material impact.
15See http://ptcompact.org/ptc-states
Agency's Response to Economic Impact Analysis: The Board
of Physical Therapy concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments are necessary for Virginia to participate in
the Physical Therapy Compact, as required by Chapter 300 of the 2019 Acts of
Assembly, which allows a physical therapist or physical therapist assistant who
has obtained a compact privilege to practice in the Commonwealth without a
Virginia license. To comply with compact rules, the amendments require all
applicants for licensure to have criminal background checks and require all
holders of a compact privilege to adhere to the laws and regulations governing
practice in Virginia. As permitted by the compact rules, the amendments set the
fee in Virginia at $50, which is similar to the fee charged by other states.
Part I
General Provisions
18VAC112-20-10. Definitions.
In addition to the words and terms defined in § §§
54.1-3473 and 54.1-3486 of the Code of Virginia, the following words and
terms when used in this chapter shall have the following meanings unless the
context clearly indicates otherwise:
"Active practice" means a minimum of 160 hours of
professional practice as a physical therapist or physical therapist assistant
within the 24-month period immediately preceding renewal. Active practice may
include supervisory, administrative, educational, or consultative activities
or responsibilities for the delivery of such services.
"Approved program" means an educational program
accredited by the Commission on Accreditation in Physical Therapy Education of
the American Physical Therapy Association.
"Assessment tool" means oPTion or any other
self-directed assessment tool approved by FSBPT.
"CLEP" means the College Level Examination Program.
"Compact" means the Physical Therapy Licensure
Compact (§ 54.1-3485 of the Code of Virginia).
"Contact hour" means 60 minutes of time spent in
continuing learning activity exclusive of breaks, meals, or vendor
exhibits.
"Direct supervision" means a physical therapist or
a physical therapist assistant is physically present and immediately available
and is fully responsible for the physical therapy tasks or activities being
performed.
"Discharge" means the discontinuation of
interventions in an episode of care that have been provided in an unbroken
sequence in a single practice setting and related to the physical therapy
interventions for a given condition or problem.
"Evaluation" means a process in which the physical
therapist makes clinical judgments based on data gathered during an examination
or screening in order to plan and implement a treatment intervention, provide
preventive care, reduce risks of injury and impairment, or provide for
consultation.
"FCCPT" means the Foreign Credentialing Commission
on Physical Therapy.
"FSBPT" means the Federation of State Boards of
Physical Therapy.
"General supervision" means a physical therapist
shall be available for consultation.
"National examination" means the examinations
developed and administered by the Federation of State Boards of Physical
Therapy and approved by the board for licensure as a physical therapist or
physical therapist assistant.
"Physical Therapy Compact Commission" or
"commission" means the national administrative body whose membership
consists of all states that have enacted the compact.
"Reevaluation" means a process in which the
physical therapist makes clinical judgments based on data gathered during an
examination or screening in order to determine a patient's response to the
treatment plan and care provided.
"Support personnel" means a person who is
performing designated routine tasks related to physical therapy under the
direction and supervision of a physical therapist or physical therapist
assistant within the scope of this chapter.
"TOEFL" means the Test of English as a Foreign
Language.
"Trainee" means a person seeking licensure as a
physical therapist or physical therapist assistant who is undergoing a
traineeship.
"Traineeship" means a period of active clinical
practice during which an applicant for licensure as a physical therapist or
physical therapist assistant works under the direct supervision of a physical
therapist approved by the board.
"TSE" means the Test of Spoken English.
"Type 1" means continuing learning activities
offered by an approved organization as specified in 18VAC112-20-131.
"Type 2" means continuing learning activities which
may or may not be offered by an approved organization but shall be activities
considered by the learner to be beneficial to practice or to continuing
learning.
18VAC112-20-27. Fees.
A. Unless otherwise provided, fees listed in this section
shall not be refundable.
B. Licensure by examination.
1. The application fee shall be $140 for a physical therapist
and $100 for a physical therapist assistant.
2. The fees for taking all required examinations shall be paid
directly to the examination services.
C. Licensure by endorsement. The fee for licensure by
endorsement shall be $140 for a physical therapist and $100 for a physical
therapist assistant.
D. Licensure renewal and reinstatement.
1. The fee for active license renewal for a physical therapist
shall be $135 and for a physical therapist assistant shall be $70 and shall be
due by December 31 in each even-numbered year.
2. The fee for an inactive license renewal for a physical
therapist shall be $70 and for a physical therapist assistant shall be $35 and
shall be due by December 31 in each even-numbered year.
3. A fee of $50 for a physical therapist and $25 for a
physical therapist assistant for processing a late renewal within one renewal
cycle shall be paid in addition to the renewal fee.
4. The fee for reinstatement of a license that has expired for
two or more years shall be $180 for a physical therapist and $120 for a
physical therapist assistant and shall be submitted with an application for
licensure reinstatement.
E. Other fees.
1. The fee for an application for reinstatement of a license
that has been revoked shall be $1,000; the fee for an application for
reinstatement of a license that has been suspended shall be $500.
2. The fee for a duplicate license shall be $5, and the fee
for a duplicate wall certificate shall be $15.
3. The handling fee for a returned check or a dishonored
credit card or debit card shall be $50.
4. The fee for a letter of good standing/verification standing
or verification to another jurisdiction shall be $10.
5. The application fee for direct access certification shall
be $75 for a physical therapist to obtain certification to provide services
without a referral.
6. The state fee for obtaining or renewing a compact
privilege to practice in Virginia shall be $50.
18VAC112-20-60. Requirements for licensure by examination.
Every applicant for initial licensure by examination shall
submit:
1. Documentation of having met the educational requirements
specified in 18VAC112-20-40 or 18VAC112-20-50;
2. The required application, fees, and credentials to
the board, including a criminal history background check as required by §
54.1-3484 of the Code of Virginia; and
3. Documentation of passage of the national examination as
prescribed by the board.
18VAC112-20-65. Requirements for licensure by endorsement.
A. A physical therapist or physical therapist assistant who
holds a current, unrestricted license in the United States, its territories,
the District of Columbia, or Canada may be licensed in Virginia by endorsement.
B. An applicant for licensure by endorsement shall submit:
1. Documentation of having met the educational requirements
prescribed in 18VAC112-20-40 or 18VAC112-20-50. In lieu of meeting such
requirements, an applicant may provide evidence of clinical practice consisting
of at least 2,500 hours of patient care during the five years immediately
preceding application for licensure in Virginia with a current, unrestricted
license issued by another U.S. United States jurisdiction;
2. The required application, fees, and credentials to the
board, including a criminal history background check as required by §
54.1-3484 of the Code of Virginia;
3. A current report from the Healthcare Integrity and
Protection Data Bank (HIPDB);
4. Evidence of completion of 15 hours of continuing education
for each year in which the applicant held a license in another U.S. United
States jurisdiction, or 60 hours obtained within the past four years;
5. Documentation of passage of an examination equivalent to
the Virginia examination at the time of initial licensure or documentation of
passage of an examination required by another state at the time of initial
licensure in that state; and
6. Documentation of active practice in physical therapy in
another U.S. United States jurisdiction for at least 320 hours
within the four years immediately preceding his application for licensure. A
physical therapist who does not meet the active practice requirement shall:
a. Successfully complete 320 hours in a traineeship in
accordance with requirements in 18VAC112-20-140; or
b. Document that he attained at least Level 2 on the FSBPT
assessment tool within the two years preceding application for licensure in
Virginia and successfully complete 160 hours in a traineeship in accordance
with the requirements in 18VAC112-20-140.
C. A physical therapist assistant seeking licensure by
endorsement who has not actively practiced physical therapy for at least 320 hours
within the four years immediately preceding his application for licensure shall
successfully complete 320 hours in a traineeship in accordance with the
requirements in 18VAC112-20-140.
18VAC112-20-82. Requirements for a compact privilege.
To obtain a compact privilege to practice physical therapy
in Virginia, a physical therapist or physical therapist assistant licensed in a
remote state shall comply with the rules adopted by the Physical Therapy
Compact Commission in effect at the time of application to the commission.
18VAC112-20-90. General responsibilities.
A. The physical therapist shall be responsible for managing
all aspects of the physical therapy care of each patient and shall provide:
1. The initial evaluation for each patient and its documentation
in the patient record;
2. Periodic reevaluation, including documentation of the
patient's response to therapeutic intervention; and
3. The documented status of the patient at the time of
discharge, including the response to therapeutic intervention. If a patient is
discharged from a health care facility without the opportunity for the physical
therapist to reevaluate the patient, the final note in the patient record may
document patient status.
B. The physical therapist shall communicate the overall plan
of care to the patient or his the patient's legally authorized
representative and shall also communicate with a referring doctor of medicine,
osteopathy, chiropractic, podiatry, or dental surgery,; nurse
practitioner; or physician assistant to the extent required by §
54.1-3482 of the Code of Virginia.
C. A physical therapist assistant may assist the physical
therapist in performing selected components of physical therapy intervention to
include treatment, measurement, and data collection, but not to
include the performance of an evaluation as defined in 18VAC112-20-10.
D. A physical therapist assistant's visits to a patient may
be made under general supervision.
E. A physical therapist providing services with a direct
access certification as specified in § 54.1-3482 of the Code of Virginia
shall utilize the Direct Access Patient Attestation and Medical Release Form
prescribed by the board or otherwise include in the patient record the
information, attestation and written consent required by subsection B of §
54.1-3482 of the Code of Virginia.
F. A physical therapist or physical therapist assistant
practicing in Virginia on a compact privilege shall comply with all applicable
laws and regulations pertaining to physical therapy practice in Virginia.
18VAC112-20-130. Biennial renewal of license.
A. A physical therapist and physical therapist assistant who
intends to continue practice shall renew his license biennially by December 31
in each even-numbered year and pay to the board the renewal fee prescribed in
18VAC112-20-27.
B. A licensee whose licensure has not been renewed by the
first day of the month following the month in which renewal is required shall
pay a late fee as prescribed in 18VAC112-20-27.
C. In order to renew an active license, a licensee shall be
required to:
1. Complete a minimum of 160 hours of active practice in the
preceding two years; and
2. Comply with continuing competency requirements set forth in
18VAC112-20-131.
D. In order to renew a compact privilege to practice in
Virginia, the holder shall comply with the rules adopted by the Physical
Therapy Compact Commission in effect at the time of the renewal.
18VAC112-20-140. Traineeship requirements.
A. The traineeship shall be approved by the board and under
the direction and supervision of a licensed physical therapist.
B. Supervision and identification of trainees:
1. There shall be a limit of two physical therapists assigned
to provide supervision for each trainee.
2. The supervising physical therapist shall countersign
patient documentation (i.e., notes, records, charts) for services provided by a
trainee.
3. The trainee shall wear identification designating them as a
"physical therapist trainee" or a "physical therapist assistant
trainee."
C. Completion of traineeship.
1. The physical therapist supervising the trainee shall submit
a report to the board at the end of the required number of hours on forms
supplied by the board.
2. If the traineeship is not successfully completed at the end
of the required hours, as determined by the supervising physical therapist, the
president of the board or his designee shall determine if a new traineeship
shall commence. If the president of the board determines that a new traineeship
shall not commence, then the application for licensure shall be denied.
3. The second traineeship may be served under a different
supervising physical therapist and may be served in a different organization
than the initial traineeship. If the second traineeship is not successfully
completed, as determined by the supervising physical therapist, then the
application for licensure shall be denied.
D. A traineeship shall not be approved for an applicant
who has not completed a criminal background check for initial licensure
pursuant to § 54.1-3484 of the Code of Virginia.
18VAC112-20-200. Advertising ethics.
A. Any statement specifying a fee, whether standard,
discounted, or free, for professional services that does not include the
cost of all related procedures, services, and products which that,
to a substantial likelihood, will be necessary for the completion of the
advertised service as it would be understood by an ordinarily prudent person
shall be deemed to be deceptive or misleading, or both. Where reasonable
disclosure of all relevant variables and considerations is made, a statement of
a range of prices for specifically described services shall not be deemed to be
deceptive or misleading.
B. Advertising a discounted or free service, examination, or
treatment and charging for any additional service, examination, or treatment
that is performed as a result of and within 72 hours of the initial office
visit in response to such advertisement is unprofessional conduct unless such
professional services rendered are as a result of a bona fide emergency. This
provision may not be waived by agreement of the patient and the practitioner.
C. Advertisements of discounts shall disclose the full fee
that has been discounted. The practitioner shall maintain documented evidence
to substantiate the discounted fees and shall make such information available
to a consumer upon request.
D. A licensee or holder of a compact privilege shall
not use the term "board certified" or any similar words or phrase
calculated to convey the same meaning in any advertising for his practice unless
he holds certification in a clinical specialty issued by the American Board of
Physical Therapy Specialties.
E. A licensee or holder of a compact privilege of the
board shall not advertise information that is false, misleading, or deceptive.
For an advertisement for a single practitioner, it shall be presumed that the
practitioner is responsible and accountable for the validity and truthfulness
of its content. For an advertisement for a practice in which there is more than
one practitioner, the name of the practitioner or practitioners
responsible and accountable for the content of the advertisement shall be
documented and maintained by the practice for at least two years.
F. Documentation, scientific and otherwise, supporting claims
made in an advertisement shall be maintained and available for the board's
review for at least two years.
VA.R. Doc. No. R20-6119; Filed August 6, 2020, 4:19 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Fast-Track Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-20).
18VAC115-30. Regulations Governing the Certification of
Substance Abuse Counselors and Substance Abuse Counseling Assistants (amending 18VAC115-30-30).
18VAC115-40. Regulations Governing the Certification of
Rehabilitation Providers (amending 18VAC115-40-20).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-20).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-20).
18VAC115-70. Regulations Governing the Registration of Peer
Recovery Specialists (amending 18VAC115-70-20).
18VAC115-80. Regulations Governing the Registration of
Qualified Mental Health Professionals (amending 18VAC115-80-20).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: September 30, 2020.
Effective Date: October 15, 2020.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority § 54.1-2400 of the Code of Virginia, which provides the Board of
Counseling the authority to promulgate regulations to administer the regulatory
system. The specific mandate for collection of a handling fee is found in § 2.2-4805
of the Virginia Debt Collection Act (§ 2.2-4800 et seq. of the Code of
Virginia).
Purpose: The amendments conform the regulations to the
Virginia Debt Collection Act, in which the General Assembly has determined that
the cost for handling returned checks or dishonored credit or debit cards is
$50. The department and its regulatory boards license and discipline health
care practitioners with the mission of protecting the health and safety of the
public, which must be supported by licensing and miscellaneous fees.
Rationale for Using Fast-Track Rulemaking Process: The
Office of the Comptroller has advised the department that the costs for
handling a returned check or dishonored credit card or debit card payment is
$50, as set forth in § 2.2-4805 of the Code of Virginia. Therefore, all board
regulations are being amended to delete the returned check fee of $35 and
replace it with a handling fee of $50. The Office of the Attorney General
concurs with amending regulations accordingly but advised that it is not an
exempt action.
The rulemaking is concurring with financial policy of the
Commonwealth and is not expected to be controversial.
Substance: All board regulations are being amended to
delete the returned check fee of $35 and replace it with a handling fee of $50
for a returned check, dishonored credit card or dishonored debit card.
Issues: There are no primary advantages or disadvantages
to the public.
The primary advantage to the department is compliance with
auditors from the Office of the Comptroller.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to amend 18VAC115-20 Regulations Governing the
Practice of Professional Counseling, 18VAC115-30 Regulations Governing the
Certification of Substance Abuse Counselors, 18VAC115-40 Regulations Governing
the Certification of Rehabilitation Providers, 18VAC115-50 Regulations
Governing the Practice of Marriage and Family Therapy, 18VAC115-60 Regulations
Governing the Licensure of Substance Abuse Practitioners, 18VAC115-70
Regulations Governing the Registration of Peer Recovery Specialists, and
18VAC115-80 Regulations Governing the Registration of Qualified Mental Health
Professionals to state that the handling fee for a returned check or dishonored
credit card or debit card is $50, replacing a current $35 charge.
Background. Code of Virginia § 2.2-614.1 specifies that:
If any check or other means of payment tendered to a public
body in the course of its duties is not paid by the financial institution on
which it is drawn, because of insufficient funds in the account of the drawer,
no account is in the name of the drawer, or the account of the drawer is
closed, and the check or other means of payment is returned to the public body
unpaid, the amount thereof shall be charged to the person on whose account it
was received, and his liability and that of his sureties, shall be as if he had
never offered any such payment. A penalty of $35 or the amount of any costs,
whichever is greater, shall be added to such amount.
Based on this Code provision, the current regulations include a
$35 returned check charge.
On the other hand, Code of Virginia § 2.2-4805 specifies that
“Returned checks or dishonored credit card or debit card payments shall incur a
handling fee of $50 unless a higher amount is authorized by statute to be added
to the principal account balance.” According to the Department of Health
Professions (DHP), the Office of the Attorney General has advised that the
handling fee of $50 in Virginia Code 2.2-4805 governs.
Estimated Benefits and Costs. Based on the view of the Office
of the Attorney General that Virginia Code 2.2-4805 prevails, the fee by law
for a returned check or dishonored credit card or debit card is $50. The
Board’s proposal therefore conforms the regulations to current law. DHP has
indicated that in practice they will continue to charge the $35 fee until this proposed
regulatory action becomes effective. The services provided by DHP are funded by
the fees paid by the regulated individuals and entities. To the extent that the
$50 fee more accurately represents the cost incurred by DHP, the proposed
change may be beneficial in that the cost would need not be subsidized by other
regulants who did not cause the cost to be incurred.
Businesses and Other Entities Affected. The proposal pertains
to fee-paying individuals regulated by the Board. As of September 30, 2019,
there were 1,899 certified substance abuse counselors, 894 licensed marriage
and family therapists, 6004 licensed professional counselors, 344 marriage and
family therapist residents, 9,030 post graduate trainees, 7,316 qualified
mental health professionals-adult, 6,501 qualified mental health
professionals-child, 253 registered peer recovery specialists, 228
rehabilitation providers, 241 substance abuse counseling assistants, 1,892
substance abuse trainees, 265 substance abuse treatment practitioners, 6 substance
abuse treatment residents, and 2,715 qualified mental health professional
trainees. The Board does not directly regulate businesses. If any of these
individuals have a check returned or a credit card or debit card dishonored,
the proposal would increase their cost by $15. Since adverse impact is
indicated if there is any increase in net cost or reduction in net revenue for
any entity, even if the benefits of the proposal exceed the costs for all
entities combined, adverse impact is indicated for this action.
Small Businesses1 Affected. No small businesses are
directly affected by the proposal.
Localities2 Affected.3 The proposal does
not disproportionately affect any particular localities or introduce costs for
local governments.
Projected Impact on Employment. The proposal does not affect
employment.
Effects on the Use and Value of Private Property. The proposal
does not substantially affect the use and value of private property or real
estate development costs.
_________________________
1Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
2"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
3§ 2.2-4007.04 defines "particularly
affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the economic impact analysis of the Department of
Planning and Budget.
Summary:
The amendments replace the returned check fee of $35 with a
fee of $50 for handling a returned check or dishonored credit card or debit
card payment in compliance with § 2.2-4805 of the Code of Virginia.
18VAC115-20-20. Fees required by the board.
A. The board has established the following fees applicable to
licensure as a professional counselor:
Active annual license renewal
|
$130
|
Inactive annual license renewal
|
$65
|
Initial licensure by examination: Application processing and
initial licensure
|
$175
|
Initial licensure by
endorsement: Application processing and initial licensure
|
$175
|
Registration of supervision
|
$65
|
Add or change supervisor
|
$30
|
Duplicate license
|
$10
|
Verification of licensure to another jurisdiction
|
$30
|
Late renewal
|
$45
|
Reinstatement of a lapsed license
|
$200
|
Replacement of or additional wall certificate
|
$25
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$600
|
B. All fees are nonrefundable.
C. Examination fees shall be determined and made payable as
determined by the board.
18VAC115-30-30. Fees required by the board.
A. The board has established the following fees applicable to
the certification of substance abuse counselors and substance abuse counseling
assistants:
Substance abuse counselor annual certification renewal
|
$65
|
Substance abuse counseling assistant annual certification
renewal
|
$50
|
Substance abuse counselor initial certification by
examination:
Application processing and initial certification
|
$115
|
Substance abuse counseling assistant initial certification by
examination:
Application processing and initial certification
|
$115
|
Initial certification by endorsement of substance abuse
counselors:
Application processing and initial certification
|
$115
|
Registration of supervision
|
$65
|
Add or change to supervision
|
$30
|
Duplicate certificate
|
$10
|
Certificate verification
|
$25
|
Late renewal
|
$25
|
Reinstatement of a lapsed certificate
|
$125
|
Replacement of or additional wall certificate
|
$25
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$600
|
B. All fees are nonrefundable.
C. Examination fees shall be paid directly to the examination
services according to its requirements.
18VAC115-40-20. Fees required by the board.
A. The board has established the following fees applicable to
the certification of rehabilitation providers:
Initial certification by examination: Processing and initial
certification
|
$115
|
Initial certification by endorsement: Processing and initial
certification
|
$115
|
Certification renewal
|
$65
|
Duplicate certificate
|
$10
|
Late renewal
|
$25
|
Reinstatement of a lapsed certificate
|
$125
|
Replacement of or additional wall certificate
|
$25
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$600
|
B. Fees shall be paid to the board. All fees are
nonrefundable.
18VAC115-50-20. Fees.
A. The board has established fees for the following:
Registration of supervision
|
$65
|
Add or change supervisor
|
$30
|
Initial licensure by examination: Processing and initial
licensure
|
$175
|
Initial licensure by endorsement: Processing and initial
licensure
|
$175
|
Active annual license renewal
|
$130
|
Inactive annual license renewal
|
$65
|
Penalty for late renewal
|
$45
|
Reinstatement of a lapsed license
|
$200
|
Verification of license to another jurisdiction
|
$30
|
Additional or replacement licenses
|
$10
|
Additional or replacement wall certificates
|
$25
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$600
|
B. All fees are nonrefundable.
C. Examination fees shall be determined and made payable as
determined by the board.
18VAC115-60-20. Fees required by the board.
A. The board has established the following fees applicable to
licensure as a substance abuse treatment practitioner:
Registration of supervision (initial)
|
$65
|
Add/change supervisor
|
$30
|
Initial licensure by examination: Processing and initial
licensure
|
$175
|
Initial licensure by endorsement: Processing and initial
licensure
|
$175
|
Active annual license renewal
|
$130
|
Inactive annual license renewal
|
$65
|
Duplicate license
|
$10
|
Verification of license to another jurisdiction
|
$30
|
Late renewal
|
$45
|
Reinstatement of a lapsed license
|
$200
|
Replacement of or additional wall certificate
|
$25
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$600
|
B. All fees are nonrefundable.
C. Examination fees shall be determined and made payable as
determined by the board.
18VAC115-70-20. Fees required by the board.
A. The board has established the following fees applicable to
the registration of peer recovery specialists:
Registration
|
$30
|
Renewal of registration
|
$30
|
Late renewal
|
$20
|
Reinstatement of a lapsed registration
|
$60
|
Duplicate certificate of registration
|
$10
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$500
|
B. Unless otherwise provided, fees established by the board
shall not be refundable.
18VAC115-80-20. Fees required by the board.
A. The board has established the following fees applicable to
the registration of qualified mental health professionals:
Registration as a QMHP-A
|
$50
|
Registration as a QMHP-C
|
$50
|
Registration as a QMHP-trainee
|
$25
|
Renewal of registration
|
$30
|
Late renewal
|
$20
|
Reinstatement of a lapsed registration
|
$75
|
Duplicate certificate of registration
|
$10
|
Returned check or dishonored credit card or debit card
|
$35 $50
|
Reinstatement following revocation or suspension
|
$500
|
B. Unless otherwise provided, fees established by the board
shall not be refundable.
VA.R. Doc. No. R21-6195; Filed August 6, 2020, 1:58 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Proposed Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-10, 18VAC115-20-130).
18VAC115-30. Regulations Governing the Certification of
Substance Abuse Counselors and Substance Abuse Counseling Assistants (amending 18VAC115-30-10, 18VAC115-30-140).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-10, 18VAC115-50-110).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-10, 18VAC115-60-130).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information:
October 9, 2020 - 9:45 a.m. - WebEx meeting - A link and
instructions to access the electronic meeting will be posted at https://townhall.virginia.gov/L/ViewMeeting.
cfm?MeetingID=31193 on the Virginia Regulatory Town Hall.
Public Comment Deadline: October 30, 2020.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Counseling the authority to promulgate regulations to administer the
regulatory system and states that such regulation "shall not conflict with
the purposes and intent of ... Chapter 1 (§ 54.1-100 et seq.)" of the Code
of Virginia. Section 54.1-100 of the Code of Virginia specifies that a
regulation shall not be imposed except for the purpose of protection of the
health, safety, and welfare of the public, which is the intent of this action.
Purpose: The purpose of this regulatory action is to
specify in regulations the interpretation of the board that conversion therapy
has the potential for significant harm if practiced with persons younger than
18 years of age. The regulations define the term consistent with accepted usage
within the profession and consistent with policy statements by state and
national professional organizations.
Substance: For the purposes of the regulatory action,
"conversion therapy" or "sexual orientation change efforts"
is defined as any practice or treatment that seeks to change an individual's
sexual orientation or gender identity, including efforts to change behaviors or
gender expressions or to eliminate or reduce sexual or romantic attractions or
feelings toward individuals of any gender. "Conversion therapy" does
not include counseling that provides assistance to a person undergoing gender
transition or counseling that provides acceptance, support, and understanding
of a person or facilitates a person's coping, social support, and identity
exploration and development, including sexual-orientation-neutral interventions
to prevent or address unlawful conduct or unsafe sexual practices, as long as
such counseling does not seek to change an individual's sexual orientation or
gender identity in any direction.
Issues: The primary advantage to the public is
protection for children who might otherwise be subjected to reparative or
conversion therapy. The board does not believe there are disadvantages because
practitioners can provide assistance to a person undergoing gender transition
or counseling that offers acceptance, support, and understanding of a person or
facilitates a person's coping, social support, and identity exploration and
development.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to amend 18VAC115-20 Regulations Governing
the Practice of Professional Counseling, 18VAC115-30 Regulations
Governing the Certification of Substance Abuse Counselors, 18VAC115-50
Regulations Governing the Practice of Marriage and Family Therapy, and 18VAC115-60
Regulations Governing the Licensure of Substance Abuse Professionals
(regulations) in order to add a definition of "conversion therapy"
and a stipulation that licensees shall not engage in conversion therapy with
individuals under 18 years of age.
Background. During the 2018 General Assembly Session, Delegates
Patrick A. Hope and Betsy B. Carr introduced a bill (HB 363) that provided a
definition of "sexual orientation change efforts" (SOCE) and would
"prohibit any health care provider or person who performs counseling as
part of his training for any profession licensed by a regulatory board of the
Department of Health Professions (DHP) from engaging in sexual orientation
change efforts with a person under 18 years of age."1 The bill
was referred to the Committee on Health, Welfare and Institutions and assigned
to a subcommittee where, in the course of their deliberations, the question was
raised as to why the issue had not already been addressed by licensing boards.
The bill was passed by indefinitely and left in subcommittee.
Subsequently, the President of the Board of Psychology
recommended that the Director of DHP convene a workgroup to discuss the issue.
The workgroup met on October 5, 2018 and included representatives from the
Boards of Counseling, Medicine, Psychology and Social Work. After substantial
debate, most members concurred that there was a need for more protection of
children. It was agreed that each board would have to make the decision whether
to promulgate regulation.
The proposed amendments mirror the language of HB 363, and
define conversion therapy in some detail:
"Conversion therapy" means any practice or treatment
that seeks to change an individual's sexual orientation or gender identity,
including efforts to change behaviors or gender expressions or to eliminate or
reduce sexual or romantic attractions or feelings toward individuals of the
same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person undergoing
gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral interventions
to prevent or address unlawful conduct or unsafe sexual practices, as long as
such counseling does not seek to change an individual's sexual orientation or
gender identity in any direction.
This definition appears to be consistent with those adopted by
the American Psychological Association, the American Psychiatric Association,
and other professional associations.2
In general, DHP reports that licensed providers are not taught
conversion therapy as part of their professional training, and that the agency
has not received any complaints or reports of licensees practicing conversion
therapy. However, the counseling, social work, and medical professional
communities have adopted resolutions and position statements based on research
conducted over the past two decades regarding the effects of conversion
therapy, particularly on minors.3,4,5 The Virginia Counselors
Association specifically posted a comment at the NOIRA stage saying, "it
is our position that it is unprofessional and dangerous conduct for a counselor
to engage in sexual orientation change efforts, known as "conversion
therapy," especially in persons under age 18."6 Hence, the
Board is proposing these amendments based on its authority to impose
regulations for the protection of the health, safety, and welfare of the
public. The Boards of Social Work, Psychology, Medicine, and Nursing have also
initiated regulatory actions with nearly identical proposed changes.7
In contrast, some religious organizations continue to offer
conversion therapy. The organizations, including programs aimed at teenagers
and young adults, may use different terminologies such as 'ex-gay ministry',
'reparative therapy', or 'promoting healthy sexuality' but the programs seek to
change the individual's sexual orientation or gender identity, thus appearing
to meet the Board's definition of conversion therapy. However, religious
counselors (rabbis, priests, ministers, or clergymen) are exempt from the
requirement for licensure.8 As a result, the content of this regulation
would not apply to them. Accordingly, the Board has no authority to take
disciplinary action against religious organizations and affiliated counselors
who continue to provide conversion therapy, unless they are also licensed by
the Board.
Estimated Benefits and Costs. For the reasons described above,
it is unlikely that counselors licensed by the Board presently provide
conversion therapy. Moreover, programs that are conducted in a religious
setting by rabbis, priests, ministers or clergymen are exempt from licensure.
Hence, although the proposed regulation has received 692 public comments and
appears to have been controversial, it is unlikely to have substantive economic
impact.
To the extent that the Board's licensees are currently engaging
in conversion therapy with individuals under 18 years of age, they may now have
to change their practice, lose clients, or face disciplinary action if they
fail to comply with the regulation. However, as mentioned previously,
conversion therapy is not an evidence-based practice and is hence not included
in the curriculum at accredited counseling programs and not practiced by the
vast majority of licensed professionals. Any current license-holders choosing
to forfeit their licensure in favor of continuing to practice conversion
therapy may continue to do so if employed as a rabbi, priest, minister or
clergyman, as long as they belong to "an established and legally
cognizable church, denomination or sect" and remain "accountable to
its established authority."9
Clients under age 18, who seek to receive, or continue
receiving, conversion therapy from licensed providers, and their parents, may
now face certain indirect costs if they choose to find other providers. The
amount of the cost would depend upon the availability of providers, including
religious counselors. Conversely, children and their parents may be benefited
to the degree the board's action limits the availability of conversion therapy.
The degree of this benefit would depend upon the extent to which the harms
cited by the professional organizations noted above would have occurred but for
this regulatory action.
Businesses and Other Entities Affected. As mentioned above,
some licensed practitioners who may also have been working in a religious
setting may have to alter their practice or face disciplinary action, but DHP
estimates that these are most likely a very small fraction of the overall
number of license-holders.10 Although DHP does not have an estimate
of the number of affected providers, the agency reports that the vast majority
of current license-holders likely do not engage in conversion therapy at all
(in either religious or secular settings) since it is not taught by any
accredited program and has been considered contrary to the "professional code
of ethics" in an informal capacity for more than a decade.
Small Businesses11 Affected. Although many licensed
practitioners may be employed in a small business setting, DHP estimates that
only a very small fraction of the overall number of license-holders would be
affected by the regulation at all, and there is no reason to suggest that those
affected are more likely to be working in a small business. Even so, the cost
of complying with the regulation is unlikely to be significant, and there are
no alternatives to the regulation that would provide greater flexibility while
also meeting its policy objectives.
Localities12 Affected.13 The proposed
amendments do not introduce new costs for local governments and are unlikely to
affect any locality in particular.
Projected Impact on Employment. The proposed amendments are
unlikely to affect the overall number of employed Licensed Professional
Counselors, Licensed Marriage and Family Therapists, Licensed Substance Abuse
Treatment Providers, and Certified Substance Abuse Counselors.
Effects on the Use and Value of Private Property. The proposed
amendments are unlikely to affect the use and value of private property. Real
estate development costs are not affected.
__________________________________
1See http://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil&
val=hb363
2See https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf?response_type=embed and citations therein.
3See https://www.apa.org/about/policy/sexual-orientation For instance, the American Psychological Association
convened a task force whose 2009 report Appropriate Therapeutic Responses to
Sexual Orientation states "…Thus, the results of scientifically valid
research indicate that it is unlikely that individuals will be able to reduce
same-sex attractions or increase other-sex sexual attractions through SOCE. We found
that there was some evidence to indicate that individuals experienced harm from
SOCE." See https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (Executive Summary)
4See https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy. In a 2013 Position Statement, the American
Psychiatric Association stated that it "does not believe that same-sex
orientation should or needs to be changed, and efforts to do so represent a
significant risk of harm by subjecting individuals to forms of treatment which
have not been scientifically validated and by undermining self-esteem when
sexual orientation fails to change. No credible evidence exists that any mental
health intervention can reliably and safely change sexual orientation; nor,
from a mental health perspective does sexual orientation need to be
changed." Downloaded from https://www.psychiatry.org/home/policy-finder
5See https://www.ama-assn.org/press-center/press-releases/ama-adopts-new-policies-during-first-day-voting-interim-meeting
6See https://townhall.virginia.gov/L/viewcomments.cfm?commentid=75098.
7See Board of Social Work Action 5241 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5241), Board of Psychology Action 5218 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5218) and Board of Medicine Action 5412 (https://townhall.virginia.gov/L/viewaction.cfm?actionid=5412) and Board of Nursing Action 5430 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5430).
8As per COV § 54.1-3501 Exemption from requirements
of licensure: The activities, including marriage and family therapy,
counseling, or substance abuse treatment, of rabbis, priests, ministers or
clergymen of any religious denomination or sect when such activities are within
the scope of the performance of their regular or specialized ministerial
duties, and no separate charge is made or when such activities are performed,
whether with or without charge, for or under auspices or sponsorship,
individually or in conjunction with others, of an established and legally
cognizable church, denomination or sect, and the person rendering service
remains accountable to its established authority.
10According to the ABD, the overall numbers of licensees
are as follows: 5,784 Licensed Professional Counselors, 840 Marriage and Family
Therapists, 260 Licensed Substance Abuse Treatment Providers, and 1,876
Certified Substance Abuse Counselors.
11Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
12"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
13§ 2.2-4007.04 defines "particularly affected"
as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments define conversion therapy and establish that
the standard of practice for persons licensed, certified, or registered by the
board preclude the provision of conversion therapy to persons younger than 18
years of age.
Part I
General Provisions
18VAC115-20-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Counseling"
"Professional counselor"
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary counseling services" means activities
such as case management, recordkeeping, referral, and coordination of services.
"Applicant" means any individual who has submitted
an official application and paid the application fee for licensure as a
professional counselor.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"Candidate for licensure" means a person who has
satisfactorily completed all educational and experience requirements for
licensure and has been deemed eligible by the board to sit for its
examinations.
"Clinical counseling services" means activities
such as assessment, diagnosis, treatment planning, and treatment
implementation.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"CORE" means Council on Rehabilitation Education.
"Exempt setting" means an agency or institution in
which licensure is not required to engage in the practice of counseling
according to the conditions set forth in § 54.1-3501 of the Code of
Virginia.
"Face-to-face" means the in-person delivery of
clinical counseling services for a client.
"Group supervision" means the process of clinical
supervision of no more than six persons in a group setting provided by a
qualified supervisor.
"Internship" means a formal academic course from a
regionally accredited college or university in which supervised, practical
experience is obtained in a clinical setting in the application of counseling
principles, methods, and techniques.
"Jurisdiction" means a state, territory, district,
province, or country that has granted a professional certificate or license to
practice a profession, use a professional title, or hold oneself out as a practitioner
of that profession.
"Nonexempt setting" means a setting that does not
meet the conditions of exemption from the requirements of licensure to engage
in the practice of counseling as set forth in § 54.1-3501 of the Code of
Virginia.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
responsible for accrediting senior postsecondary institutions.
"Residency" means a postgraduate, supervised,
clinical experience registered with the board.
"Resident" means an individual who has submitted a
supervisory contract and has received board approval to provide clinical
services in professional counseling under supervision.
"Supervision" means the ongoing process performed
by a supervisor who monitors the performance of the person supervised and
provides regular, documented individual or group consultation, guidance, and
instruction that is specific to the clinical counseling services being
performed with respect to the clinical skills and competencies of the person
supervised.
Part V
Standards of Practice; Unprofessional Conduct; Disciplinary Actions;
Reinstatement
18VAC115-20-130. Standards of practice.
A. The protection of the public health, safety, and welfare
and the best interest of the public shall be the primary guide in determining
the appropriate professional conduct of all persons whose activities are
regulated by the board. Regardless of the delivery method, whether in person,
by phone, or electronically, these standards shall apply to the practice of
counseling.
B. Persons licensed or registered by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare;
2. Practice only within the boundaries of their competence,
based on their education, training, supervised experience, and appropriate
professional experience and represent their education, training, and experience
accurately to clients;
3. Stay abreast of new counseling information, concepts,
applications, and practices that are necessary to providing appropriate,
effective professional services;
4. Be able to justify all services rendered to clients as
necessary and appropriate for diagnostic or therapeutic purposes;
5. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making appropriate
arrangements for the continuation of treatment for clients, when necessary,
following termination of a counseling relationship;
6. Make appropriate arrangements for continuation of services,
when necessary, during interruptions such as vacations, unavailability,
relocation, illness, and disability;
7. Disclose to clients all experimental methods of treatment
and inform clients of the risks and benefits of any such treatment. Ensure that
the welfare of the clients is in no way compromised in any experimentation or
research involving those clients;
8. Neither accept nor give commissions, rebates, or other
forms of remuneration for referral of clients for professional services;
9. Inform clients of the purposes, goals, techniques,
procedures, limitations, potential risks, and benefits of services to be
performed; the limitations of confidentiality; and other pertinent information
when counseling is initiated and throughout the counseling process as
necessary. Provide clients with accurate information regarding the implications
of diagnosis, the intended use of tests and reports, fees, and billing
arrangements;
10. Select tests for use with clients that are valid,
reliable, and appropriate and carefully interpret the performance of
individuals not represented in standardized norms;
11. Determine whether a client is receiving services from
another mental health service provider, and if so, refrain from providing
services to the client without having an informed consent discussion with the
client and having been granted communication privileges with the other
professional;
12. Use only in connection with one's practice as a mental
health professional those educational and professional degrees or titles that
have been earned at a college or university accredited by an accrediting agency
recognized by the U.S. Department of Education, or credentials granted by a
national certifying agency, and that are counseling in nature; and
13. Advertise professional services fairly and accurately in a
manner that is not false, misleading, or deceptive; and
14. Not engage in conversion therapy with any person
younger than 18 years of age.
C. In regard to patient records, persons licensed by the
board shall:
1. Maintain written or electronic clinical records for each client
to include treatment dates and identifying information to substantiate
diagnosis and treatment plan, client progress, and termination;
2. Maintain client records securely, inform all employees of
the requirements of confidentiality, and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality;
3. Disclose or release records to others only with the
client's expressed written consent or that of the client's legally authorized
representative in accordance with § 32.1-127.1:03 of the Code of Virginia;
4. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from the client or the
client's legally authorized representative before (i) videotaping, (ii) audio
recording, (iii) permitting third party observation, or (iv) using identifiable
client records and clinical materials in teaching, writing, or public
presentations; and
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years) or 10 years
following termination, whichever comes later;
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have been transferred to another mental health
service provider or given to the client or his legally authorized
representative.
D. In regard to dual relationships, persons licensed by the
board shall:
1. Avoid dual relationships with clients that could impair
professional judgment or increase the risk of harm to clients. Examples of such
relationships include, but are not limited to, familial, social,
financial, business, bartering, or close personal relationships with clients.
Counselors shall take appropriate professional precautions when a dual
relationship cannot be avoided, such as informed consent, consultation,
supervision, and documentation to ensure that judgment is not impaired and no
exploitation occurs;
2. Not engage in any type of romantic relationships or sexual
intimacies with clients or those included in a collateral relationship with the
client and not counsel persons with whom they have had a romantic relationship
or sexual intimacy. Counselors shall not engage in romantic relationships or
sexual intimacies with former clients within a minimum of five years after
terminating the counseling relationship. Counselors who engage in such
relationship or intimacy after five years following termination shall have the
responsibility to examine and document thoroughly that such relations do not
have an exploitive nature, based on factors such as duration of counseling,
amount of time since counseling, termination circumstances, client's personal
history and mental status, or adverse impact on the client. A client's consent
to, initiation of, or participation in sexual behavior or involvement with a
counselor does not change the nature of the conduct nor lift the regulatory
prohibition;
3. Not engage in any romantic relationship or sexual intimacy
or establish a counseling or psychotherapeutic relationship with a supervisee
or student. Counselors shall avoid any nonsexual dual relationship with a
supervisee or student in which there is a risk of exploitation or potential
harm to the supervisee or student or the potential for interference with the
supervisor's professional judgment; and
4. Recognize conflicts of interest and inform all parties of
the nature and directions of loyalties and responsibilities involved.
E. Persons licensed by this board shall report to the board
known or suspected violations of the laws and regulations governing the practice
of professional counseling.
F. Persons licensed by the board shall advise their clients
of their right to report to the Department of Health Professions any
information of which the licensee may become aware in his professional capacity
indicating that there is a reasonable probability that a person licensed or
certified as a mental health service provider, as defined in § 54.1-2400.1
of the Code of Virginia, may have engaged in unethical, fraudulent, or
unprofessional conduct as defined by the pertinent licensing statutes and
regulations.
Part I
General Provisions
18VAC115-30-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Certified substance abuse counselor"
"Certified substance abuse counseling assistant"
"Licensed substance abuse treatment practitioner"
"Practice of substance abuse treatment"
"Substance abuse" and "substance
dependence"
"Substance abuse treatment"
B. The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Applicant" means an individual who has submitted a
completed application with documentation and the appropriate fees to be examined
for certification as a substance abuse counselor or substance abuse counseling
assistant.
"Candidate" means a person who has been approved to
take the examinations for certification as a substance abuse counselor or
substance abuse counseling assistant.
"Clinical supervision" means the ongoing process
performed by a clinical supervisor who monitors the performance of the person
supervised and provides regular, documented face-to-face consultation, guidance
and education with respect to the clinical skills and competencies of the
person supervised.
"Clinical supervisor" means one who provides
case-related supervision, consultation, education and guidance for the
applicant. The supervisor must be credentialed as defined in 18VAC115-30-60 C.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Contact hour" means the amount of credit awarded
for 60 minutes of participation in and successful completion of a continuing education
program.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Didactic" means teaching-learning methods that
impart facts and information, usually in the form of one-way communication
(includes directed readings and lectures).
"Group supervision" means the process of clinical
supervision of no less than two nor more than six persons in a group setting
provided by a clinical supervisor.
"NAADAC" means the Association of Addiction
Professionals.
"NCC AP" means the National Certification
Commission for Addiction Professionals, an affiliate of NAADAC.
"Regionally accredited" means accredited by one of
the regional accreditation agencies recognized by the U.S. Department of
Education as responsible for accrediting senior postsecondary institutions.
"Substance abuse counseling" means applying a
counseling process, treatment strategies and rehabilitative services to help an
individual to:
1. Understand his substance use, abuse, or dependency;
and
2. Change his drug-taking behavior so that it does not
interfere with effective physical, psychological, social, or vocational
functioning.
Part V
Standards of Practice; Disciplinary Actions; Reinstatement
18VAC115-30-140. Standards of practice.
A. The protection of the public health, safety, and welfare
and the best interest of the public shall be the primary guide in determining
the appropriate professional conduct of all persons whose activities are
regulated by the board.
B. Persons certified by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare.
2. Be able to justify all services rendered to clients as
necessary for diagnostic or therapeutic purposes.
3. Practice only within the competency area for which they are
qualified by training or experience.
4. Report to the board known or suspected violations of the
laws and regulations governing the practice of certified substance abuse
counselors or certified substance abuse counseling assistants.
5. Neither accept nor give commissions, rebates, or other
forms of remuneration for referral of clients for professional services. Make
appropriate consultations and referrals based on the best interest of clients.
6. Stay abreast of new developments, concepts, and practices
that are necessary to providing appropriate services.
7. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making arrangements
for the continuation of treatment for clients when necessary, following
termination of a counseling relationship.
8. Not willfully or negligently breach the confidentiality
between a practitioner and a client. A breach of confidentiality that is
required or permitted by applicable law or beyond the control of the
practitioner shall not be considered negligent or willful.
9. Not engage in conversion therapy with any person younger
than 18 years of age.
C. In regard to client records, persons certified by the
board shall:
1. Disclose counseling records to others only in accordance
with applicable law.
2. Maintain client records securely, inform all employees of
the requirements of confidentiality, and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality.
3. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from the client or the
client's legally authorized representative before (i) videotaping, (ii) audio
recording, (iii) permitting third-party observation, or (iv) using identifiable
client records and clinical materials in teaching, writing, or public
presentations.
4. Maintain timely, accurate, legible, and complete written or
electronic records for each client, to include counseling dates and identifying
information to substantiate the substance abuse counseling plan, client
progress, and termination.
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years);
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have been transferred to another mental health
service provider or given to the client or the client's legally authorized
representative.
D. In regard to dual relationships, persons certified by the
board shall:
1. Not engage in dual relationships with clients, former
clients, supervisees, and supervisors that are harmful to the client's or
supervisee's well-being or that would impair the substance abuse counselor's,
substance abuse counseling assistant's, or supervisor's objectivity and
professional judgment or increase the risk of client or supervisee
exploitation. This prohibition includes such activities as counseling close
friends, former sexual partners, employees, or relatives or engaging in
business relationships with clients.
2. Not engage in sexual intimacies or romantic relationships
with current clients or supervisees. For at least five years after cessation or
termination of professional services, certified substance abuse counselors and
certified substance abuse counseling assistants shall not engage in sexual
intimacies or romantic relationships with a client or those included in
collateral therapeutic services. Because sexual or romantic relationships are
potentially exploitative, certified substance abuse counselors and certified
substance abuse counseling assistants shall bear the burden of demonstrating
that there has been no exploitation. A client's consent to, initiation of, or
participation in sexual behavior or involvement with a certified substance
abuse counselor or certified substance abuse counseling assistants does not
change the nature of the conduct nor lift the regulatory prohibition.
3. Recognize conflicts of interest and inform all parties of
obligations, responsibilities, and loyalties to third parties.
E. Upon learning of evidence that indicates a reasonable
probability that another mental health provider is or may be guilty of a
violation of standards of conduct as defined in statute or regulation, persons
certified by the board shall advise their clients of their right to report such
misconduct to the Department of Health Professions in accordance with § 54.1-2400.4
of the Code of Virginia.
18VAC115-50-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia: (i) "board," (ii) "marriage and family therapy,"
(iii) "marriage and family therapist," and (iv) "practice of
marriage and family therapy."
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary counseling services" means activities
such as case management, recordkeeping, referral, and coordination of services.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"COAMFTE" means the Commission on Accreditation for
Marriage and Family Therapy Education.
"Clinical marriage and family services" means
activities such as assessment, diagnosis, and treatment planning and treatment
implementation for couples and families.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Face-to-face" means the in-person delivery of clinical
marriage and family services for a client.
"Internship" means a formal academic course from a
regionally accredited university in which supervised practical experience is
obtained in a clinical setting in the application of counseling principles, methods,
and techniques.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
as responsible for accrediting senior post-secondary institutions and training
programs.
"Residency" means a postgraduate, supervised
clinical experience registered with the board.
"Resident" means an individual who has submitted a
supervisory contract to the board and has received board approval to provide
clinical services in marriage and family therapy under supervision.
"Supervision" means an ongoing process performed by
a supervisor who monitors the performance of the person supervised and provides
regular, documented, individual or group consultation, guidance, and
instruction with respect to the clinical skills and competencies of the person
or persons being supervised.
18VAC115-50-110. Standards of practice.
A. The protection of the public's health, safety, and
welfare and the best interest of the public shall be the primary guide in
determining the appropriate professional conduct of all persons whose
activities are regulated by the board. Regardless of the delivery method,
whether in person, by phone or electronically, these standards shall apply to
the practice of marriage and family therapy.
B. Persons licensed or
registered by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare;
2. Practice only within the boundaries of their competence,
based on their education, training, supervised experience, and
appropriate professional experience and represent their education, training,
and experience accurately to clients;
3. Stay abreast of new marriage and family therapy information,
concepts, applications, and practices that are necessary to providing
appropriate, effective professional services;
4. Be able to justify all services rendered to clients as
necessary and appropriate for diagnostic or therapeutic purposes;
5. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making appropriate
arrangements for the continuation of treatment for clients, when necessary,
following termination of a counseling relationship;
6. Make appropriate arrangements for continuation of services,
when necessary, during interruptions such as vacations, unavailability,
relocation, illness, and disability;
7. Disclose to clients all experimental methods of treatment
and inform client of the risks and benefits of any such treatment. Ensure that
the welfare of the client is not compromised in any experimentation or research
involving those clients;
8. Neither accept nor give commissions, rebates or other forms
of remuneration for referral of clients for professional services;
9. Inform clients of the purposes, goals, techniques,
procedures, limitations, potential risks, and benefits of services to be
performed; the limitations of confidentiality; and other pertinent information
when counseling is initiated and throughout the counseling process as
necessary. Provide clients with accurate information regarding the implications
of diagnosis, the intended use of tests and reports, fees, and billing
arrangements;
10. Select tests for use with clients that are valid, reliable,
and appropriate and carefully interpret the performance of individuals not
represented in standardized norms;
11. Determine whether a client is receiving services from
another mental health service provider, and if so, refrain from providing
services to the client without having an informed consent discussion with the
client and having been granted communication privileges with the other
professional;
12. Use only in connection with one's practice as a mental
health professional those educational and professional degrees or titles that
have been earned at a college or university accredited by an accrediting agency
recognized by the U.S. Department of Education, or credentials granted by a
national certifying agency, and that are counseling in nature; and
13. Advertise professional services fairly and accurately in a
manner that is not false, misleading or deceptive; and
14. Not engage in conversion therapy with any person
younger than 18 years of age.
C. In regard to patient records, persons licensed by the
board shall:
1. Maintain written or electronic clinical records for each
client to include treatment dates and identifying information to substantiate
diagnosis and treatment plan, client progress, and termination;
2. Maintain client records securely, inform all employees of
the requirements of confidentiality and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality;
3. Disclose or release client records to others only with
clients' expressed written consent or that of their legally authorized
representative in accordance with § 32.1-127.1:03 of the Code of Virginia;
4. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from clients or their legally
authorized representative before (i) videotaping, (ii) audio recording, (iii)
permitting third party observation, or (iv) using identifiable client records
and clinical materials in teaching, writing, or public presentations; and
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years) or 10 years
following termination, whichever comes later;
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have transferred to another mental health
service provider or given to the client or his legally authorized
representative.
D. In regard to dual relationships, persons licensed by the board
shall:
1. Avoid dual relationships with clients that could impair
professional judgment or increase the risk of harm to clients. Examples of such
relationships include, but are not limited to, familial, social,
financial, business, bartering, or close personal relationships with clients.
Marriage and family therapists shall take appropriate professional precautions
when a dual relationship cannot be avoided, such as informed consent,
consultation, supervision, and documentation to ensure that judgment is not
impaired and no exploitation occurs;
2. Not engage in any type of romantic relationships or sexual
intimacies with clients or those included in a collateral relationship with the
client and also not counsel persons with whom they have had a sexual intimacy
or romantic relationship. Marriage and family therapists shall not engage in
romantic relationships or sexual intimacies with former clients within a
minimum of five years after terminating the counseling relationship. Marriage
and family therapists who engage in such relationship or intimacy after five
years following termination shall have the responsibility to examine and
document thoroughly that such relations do not have an exploitive nature, based
on factors such as duration of counseling, amount of time since counseling,
termination circumstances, client's personal history and mental status, or
adverse impact on the client. A client's consent to, initiation of or
participation in sexual behavior or involvement with a marriage and family therapist
does not change the nature of the conduct nor lift the regulatory prohibition;
3. Not engage in any romantic relationships or sexual
relationship or establish a counseling or psychotherapeutic relationship with a
supervisee or student. Marriage and family therapists shall avoid any nonsexual
dual relationship with a supervisee or student in which there is a risk of
exploitation or potential harm to the supervisee or student or the potential
for interference with the supervisor's professional judgment; and
4. Recognize conflicts of interest and inform all parties of
the nature and directions of loyalties and responsibilities involved.
E. Persons licensed by this board shall report to the board
known or suspected violations of the laws and regulations governing the
practice of marriage and family therapy.
F. Persons licensed by the board shall advise their clients
of their right to report to the Department of Health Professions any
information of which the licensee may become aware in his professional capacity
indicating that there is a reasonable probability that a person licensed or
certified as a mental health service provider, as defined in § 54.1-2400.1
of the Code of Virginia, may have engaged in unethical, fraudulent or
unprofessional conduct as defined by the pertinent licensing statutes and
regulations.
Part I
General Provisions
18VAC115-60-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Licensed substance abuse treatment practitioner"
"Substance abuse"
"Substance abuse treatment"
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary services" means activities such as case
management, recordkeeping, referral, and coordination of services.
"Applicant" means any individual who has submitted
an official application and paid the application fee for licensure as a
substance abuse treatment practitioner.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"Candidate for licensure" means a person who has
satisfactorily completed all educational and experience requirements for
licensure and has been deemed eligible by the board to sit for its
examinations.
"Clinical substance abuse treatment services" means
activities such as assessment, diagnosis, treatment planning, and treatment
implementation.
"COAMFTE" means the Commission on Accreditation for
Marriage and Family Therapy Education.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Exempt setting" means an agency or institution in
which licensure is not required to engage in the practice of substance abuse
treatment according to the conditions set forth in § 54.1-3501 of the Code
of Virginia.
"Face-to-face" means the in-person delivery of clinical
substance abuse treatment services for a client.
"Group supervision" means the process of clinical
supervision of no more than six persons in a group setting provided by a
qualified supervisor.
"Internship" means a formal academic course from a
regionally accredited university in which supervised, practical experience is
obtained in a clinical setting in the application of counseling principles,
methods and techniques.
"Jurisdiction" means a state, territory, district,
province, or country which that has granted a professional
certificate or license to practice a profession, use a professional title, or
hold oneself out as a practitioner of that profession.
"Nonexempt setting" means a setting which that
does not meet the conditions of exemption from the requirements of licensure to
engage in the practice of substance abuse treatment as set forth in § 54.1-3501
of the Code of Virginia.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
responsible for accrediting senior postsecondary institutions.
"Residency" means a postgraduate, supervised,
clinical experience registered with the board.
"Resident" means an individual who has submitted a
supervisory contract and has received board approval to provide clinical
services in substance abuse treatment under supervision.
"Supervision" means the ongoing process performed
by a supervisor who monitors the performance of the person supervised and
provides regular, documented individual or group consultation, guidance,
and instruction with respect to the clinical skills and competencies of the
person supervised.
Part V
Standards of Practice; Unprofessional Conduct; Disciplinary Actions;
Reinstatement
18VAC115-60-130. Standards of practice.
A. The protection of the public health, safety, and welfare
and the best interest of the public shall be the primary guide in determining
the appropriate professional conduct of all persons whose activities are
regulated by the board. Regardless of the delivery method, whether in person,
by phone or electronically, these standards shall apply to the practice of
substance abuse treatment.
B. Persons licensed or registered by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare;
2. Practice only within the boundaries of their competence,
based on their education, training, supervised experience and appropriate
professional experience and represent their education, training and experience
accurately to clients;
3. Stay abreast of new substance abuse treatment information,
concepts, application, and practices that are necessary to providing
appropriate, effective professional services;
4. Be able to justify all services rendered to clients as
necessary and appropriate for diagnostic or therapeutic purposes;
5. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making appropriate
arrangements for the continuation of treatment for clients, when necessary,
following termination of a counseling relationship;
6. Make appropriate arrangements for continuation of services,
when necessary, during interruptions such as vacations, unavailability,
relocation, illness, and disability;
7. Disclose to clients all experimental methods of treatment
and inform clients of the risks and benefits of any such treatment. Ensure that
the welfare of the clients is in no way compromised in any experimentation or
research involving those clients;
8. Neither accept nor give commissions, rebates, or other
forms of remuneration for referral of clients for professional services;
9. Inform clients of the purposes, goals, techniques,
procedures, limitations, potential risks, and benefits of services to be
performed; the limitations of confidentiality; and other pertinent information
when counseling is initiated and throughout the counseling process as necessary.
Provide clients with accurate information regarding the implications of
diagnosis, the intended use of tests and reports, fees, and billing
arrangements;
10. Select tests for use with clients that are valid, reliable,
and appropriate and carefully interpret the performance of individuals not
represented in standardized norms;
11. Determine whether a client is receiving services from
another mental health service provider, and if so, refrain from providing
services to the client without having an informed consent discussion with the
client and having been granted communication privileges with the other
professional;
12. Use only in connection with one's practice as a mental
health professional those educational and professional degrees or titles that
have been earned at a college or university accredited by an accrediting agency
recognized by the U.S. Department of Education, or credentials granted by a
national certifying agency, and that are counseling in nature; and
13. Advertise professional services fairly and accurately in a
manner that is not false, misleading or deceptive; and
14. Not engage in conversion therapy with any person
younger than 18 years of age.
C. In regard to patient records, persons licensed by the
board shall:
1. Maintain written or electronic clinical records for each
client to include treatment dates and identifying information to substantiate
diagnosis and treatment plan, client progress, and termination;
2. Maintain client records securely, inform all employees of
the requirements of confidentiality and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality;
3. Disclose or release records to others only with clients'
expressed written consent or that of their legally authorized representative in
accordance with § 32.1-127.1:03 of the Code of Virginia;
4. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the substance abuse
treatment relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years) or 10 years
following termination, whichever comes later;
b. Records that are required by contractual obligation or federal
law to be maintained for a longer period of time; or
c. Records that have been transferred to another mental health
service provider or given to the client; and
5. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from clients or their legally
authorized representative before (i) videotaping, (ii) audio recording, (iii)
permitting third party observation, or (iv) using identifiable client records
and clinical materials in teaching, writing or public presentations.
D. In regard to dual relationships, persons licensed by the
board shall:
1. Avoid dual relationships with clients that could impair
professional judgment or increase the risk of harm to clients. Examples of such
relationships include, but are not limited to, familial, social,
financial, business, bartering, or close personal relationships with clients.
Counselors shall take appropriate professional precautions when a dual
relationship cannot be avoided, such as informed consent, consultation,
supervision, and documentation to ensure that judgment is not impaired and no
exploitation occurs;
2. Not engage in any type of romantic relationships or sexual
intimacies with clients or those included in a collateral relationship with the
client and not counsel persons with whom they have had a romantic relationship
or sexual intimacy. Licensed substance abuse treatment practitioners shall not
engage in romantic relationships or sexual intimacies with former clients
within a minimum of five years after terminating the counseling relationship.
Licensed substance abuse treatment practitioners who engage in such
relationship or intimacy after five years following termination shall have the
responsibility to examine and document thoroughly that such relations do not
have an exploitive nature, based on factors such as duration of counseling,
amount of time since counseling, termination circumstances, client's personal
history and mental status, or adverse impact on the client. A client's consent
to, initiation of or participation in sexual behavior or involvement with a
licensed substance abuse treatment practitioner does not change the nature of
the conduct nor lift the regulatory prohibition;
3. Not engage in any sexual intimacy or romantic relationship
or establish a counseling or psychotherapeutic relationship with a supervisee
or student. Licensed substance abuse treatment practitioners shall avoid any
nonsexual dual relationship with a supervisee or student in which there is a
risk of exploitation or potential harm to the supervisee or the potential for
interference with the supervisor's professional judgment; and
4. Recognize conflicts of interest and inform all parties of
the nature and directions of loyalties and responsibilities involved.
E. Persons licensed by this board shall report to the board
known or suspected violations of the laws and regulations governing the
practice of substance abuse treatment.
F. Persons licensed by the board shall advise their clients
of their right to report to the Department of Health Professions any
information of which the licensee may become aware in his professional capacity
indicating that there is a reasonable probability that a person licensed or
certified as a mental health service provider, as defined in § 54.1-2400.1
of the Code of Virginia, may have engaged in unethical, fraudulent or
unprofessional conduct as defined by the pertinent licensing statutes and
regulations.
VA.R. Doc. No. R19-5842; Filed August 6, 2020, 1:57 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Proposed Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-10, 18VAC115-20-130).
18VAC115-30. Regulations Governing the Certification of
Substance Abuse Counselors and Substance Abuse Counseling Assistants (amending 18VAC115-30-10, 18VAC115-30-140).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-10, 18VAC115-50-110).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-10, 18VAC115-60-130).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information:
October 9, 2020 - 9:45 a.m. - WebEx meeting - A link and
instructions to access the electronic meeting will be posted at https://townhall.virginia.gov/L/ViewMeeting.
cfm?MeetingID=31193 on the Virginia Regulatory Town Hall.
Public Comment Deadline: October 30, 2020.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Counseling the authority to promulgate regulations to administer the
regulatory system and states that such regulation "shall not conflict with
the purposes and intent of ... Chapter 1 (§ 54.1-100 et seq.)" of the Code
of Virginia. Section 54.1-100 of the Code of Virginia specifies that a
regulation shall not be imposed except for the purpose of protection of the
health, safety, and welfare of the public, which is the intent of this action.
Purpose: The purpose of this regulatory action is to
specify in regulations the interpretation of the board that conversion therapy
has the potential for significant harm if practiced with persons younger than
18 years of age. The regulations define the term consistent with accepted usage
within the profession and consistent with policy statements by state and
national professional organizations.
Substance: For the purposes of the regulatory action,
"conversion therapy" or "sexual orientation change efforts"
is defined as any practice or treatment that seeks to change an individual's
sexual orientation or gender identity, including efforts to change behaviors or
gender expressions or to eliminate or reduce sexual or romantic attractions or
feelings toward individuals of any gender. "Conversion therapy" does
not include counseling that provides assistance to a person undergoing gender
transition or counseling that provides acceptance, support, and understanding
of a person or facilitates a person's coping, social support, and identity
exploration and development, including sexual-orientation-neutral interventions
to prevent or address unlawful conduct or unsafe sexual practices, as long as
such counseling does not seek to change an individual's sexual orientation or
gender identity in any direction.
Issues: The primary advantage to the public is
protection for children who might otherwise be subjected to reparative or
conversion therapy. The board does not believe there are disadvantages because
practitioners can provide assistance to a person undergoing gender transition
or counseling that offers acceptance, support, and understanding of a person or
facilitates a person's coping, social support, and identity exploration and
development.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to amend 18VAC115-20 Regulations Governing
the Practice of Professional Counseling, 18VAC115-30 Regulations
Governing the Certification of Substance Abuse Counselors, 18VAC115-50
Regulations Governing the Practice of Marriage and Family Therapy, and 18VAC115-60
Regulations Governing the Licensure of Substance Abuse Professionals
(regulations) in order to add a definition of "conversion therapy"
and a stipulation that licensees shall not engage in conversion therapy with
individuals under 18 years of age.
Background. During the 2018 General Assembly Session, Delegates
Patrick A. Hope and Betsy B. Carr introduced a bill (HB 363) that provided a
definition of "sexual orientation change efforts" (SOCE) and would
"prohibit any health care provider or person who performs counseling as
part of his training for any profession licensed by a regulatory board of the
Department of Health Professions (DHP) from engaging in sexual orientation
change efforts with a person under 18 years of age."1 The bill
was referred to the Committee on Health, Welfare and Institutions and assigned
to a subcommittee where, in the course of their deliberations, the question was
raised as to why the issue had not already been addressed by licensing boards.
The bill was passed by indefinitely and left in subcommittee.
Subsequently, the President of the Board of Psychology
recommended that the Director of DHP convene a workgroup to discuss the issue.
The workgroup met on October 5, 2018 and included representatives from the
Boards of Counseling, Medicine, Psychology and Social Work. After substantial
debate, most members concurred that there was a need for more protection of
children. It was agreed that each board would have to make the decision whether
to promulgate regulation.
The proposed amendments mirror the language of HB 363, and
define conversion therapy in some detail:
"Conversion therapy" means any practice or treatment
that seeks to change an individual's sexual orientation or gender identity,
including efforts to change behaviors or gender expressions or to eliminate or
reduce sexual or romantic attractions or feelings toward individuals of the
same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person undergoing
gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral interventions
to prevent or address unlawful conduct or unsafe sexual practices, as long as
such counseling does not seek to change an individual's sexual orientation or
gender identity in any direction.
This definition appears to be consistent with those adopted by
the American Psychological Association, the American Psychiatric Association,
and other professional associations.2
In general, DHP reports that licensed providers are not taught
conversion therapy as part of their professional training, and that the agency
has not received any complaints or reports of licensees practicing conversion
therapy. However, the counseling, social work, and medical professional
communities have adopted resolutions and position statements based on research
conducted over the past two decades regarding the effects of conversion
therapy, particularly on minors.3,4,5 The Virginia Counselors
Association specifically posted a comment at the NOIRA stage saying, "it
is our position that it is unprofessional and dangerous conduct for a counselor
to engage in sexual orientation change efforts, known as "conversion
therapy," especially in persons under age 18."6 Hence, the
Board is proposing these amendments based on its authority to impose
regulations for the protection of the health, safety, and welfare of the
public. The Boards of Social Work, Psychology, Medicine, and Nursing have also
initiated regulatory actions with nearly identical proposed changes.7
In contrast, some religious organizations continue to offer
conversion therapy. The organizations, including programs aimed at teenagers
and young adults, may use different terminologies such as 'ex-gay ministry',
'reparative therapy', or 'promoting healthy sexuality' but the programs seek to
change the individual's sexual orientation or gender identity, thus appearing
to meet the Board's definition of conversion therapy. However, religious
counselors (rabbis, priests, ministers, or clergymen) are exempt from the
requirement for licensure.8 As a result, the content of this regulation
would not apply to them. Accordingly, the Board has no authority to take
disciplinary action against religious organizations and affiliated counselors
who continue to provide conversion therapy, unless they are also licensed by
the Board.
Estimated Benefits and Costs. For the reasons described above,
it is unlikely that counselors licensed by the Board presently provide
conversion therapy. Moreover, programs that are conducted in a religious
setting by rabbis, priests, ministers or clergymen are exempt from licensure.
Hence, although the proposed regulation has received 692 public comments and
appears to have been controversial, it is unlikely to have substantive economic
impact.
To the extent that the Board's licensees are currently engaging
in conversion therapy with individuals under 18 years of age, they may now have
to change their practice, lose clients, or face disciplinary action if they
fail to comply with the regulation. However, as mentioned previously,
conversion therapy is not an evidence-based practice and is hence not included
in the curriculum at accredited counseling programs and not practiced by the
vast majority of licensed professionals. Any current license-holders choosing
to forfeit their licensure in favor of continuing to practice conversion
therapy may continue to do so if employed as a rabbi, priest, minister or
clergyman, as long as they belong to "an established and legally
cognizable church, denomination or sect" and remain "accountable to
its established authority."9
Clients under age 18, who seek to receive, or continue
receiving, conversion therapy from licensed providers, and their parents, may
now face certain indirect costs if they choose to find other providers. The
amount of the cost would depend upon the availability of providers, including
religious counselors. Conversely, children and their parents may be benefited
to the degree the board's action limits the availability of conversion therapy.
The degree of this benefit would depend upon the extent to which the harms
cited by the professional organizations noted above would have occurred but for
this regulatory action.
Businesses and Other Entities Affected. As mentioned above,
some licensed practitioners who may also have been working in a religious
setting may have to alter their practice or face disciplinary action, but DHP
estimates that these are most likely a very small fraction of the overall
number of license-holders.10 Although DHP does not have an estimate
of the number of affected providers, the agency reports that the vast majority
of current license-holders likely do not engage in conversion therapy at all
(in either religious or secular settings) since it is not taught by any
accredited program and has been considered contrary to the "professional code
of ethics" in an informal capacity for more than a decade.
Small Businesses11 Affected. Although many licensed
practitioners may be employed in a small business setting, DHP estimates that
only a very small fraction of the overall number of license-holders would be
affected by the regulation at all, and there is no reason to suggest that those
affected are more likely to be working in a small business. Even so, the cost
of complying with the regulation is unlikely to be significant, and there are
no alternatives to the regulation that would provide greater flexibility while
also meeting its policy objectives.
Localities12 Affected.13 The proposed
amendments do not introduce new costs for local governments and are unlikely to
affect any locality in particular.
Projected Impact on Employment. The proposed amendments are
unlikely to affect the overall number of employed Licensed Professional
Counselors, Licensed Marriage and Family Therapists, Licensed Substance Abuse
Treatment Providers, and Certified Substance Abuse Counselors.
Effects on the Use and Value of Private Property. The proposed
amendments are unlikely to affect the use and value of private property. Real
estate development costs are not affected.
__________________________________
1See http://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil&
val=hb363
2See https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf?response_type=embed and citations therein.
3See https://www.apa.org/about/policy/sexual-orientation For instance, the American Psychological Association
convened a task force whose 2009 report Appropriate Therapeutic Responses to
Sexual Orientation states "…Thus, the results of scientifically valid
research indicate that it is unlikely that individuals will be able to reduce
same-sex attractions or increase other-sex sexual attractions through SOCE. We found
that there was some evidence to indicate that individuals experienced harm from
SOCE." See https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (Executive Summary)
4See https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy. In a 2013 Position Statement, the American
Psychiatric Association stated that it "does not believe that same-sex
orientation should or needs to be changed, and efforts to do so represent a
significant risk of harm by subjecting individuals to forms of treatment which
have not been scientifically validated and by undermining self-esteem when
sexual orientation fails to change. No credible evidence exists that any mental
health intervention can reliably and safely change sexual orientation; nor,
from a mental health perspective does sexual orientation need to be
changed." Downloaded from https://www.psychiatry.org/home/policy-finder
5See https://www.ama-assn.org/press-center/press-releases/ama-adopts-new-policies-during-first-day-voting-interim-meeting
6See https://townhall.virginia.gov/L/viewcomments.cfm?commentid=75098.
7See Board of Social Work Action 5241 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5241), Board of Psychology Action 5218 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5218) and Board of Medicine Action 5412 (https://townhall.virginia.gov/L/viewaction.cfm?actionid=5412) and Board of Nursing Action 5430 (https://townhall.virginia.gov/l/ViewAction.cfm?actionid=5430).
8As per COV § 54.1-3501 Exemption from requirements
of licensure: The activities, including marriage and family therapy,
counseling, or substance abuse treatment, of rabbis, priests, ministers or
clergymen of any religious denomination or sect when such activities are within
the scope of the performance of their regular or specialized ministerial
duties, and no separate charge is made or when such activities are performed,
whether with or without charge, for or under auspices or sponsorship,
individually or in conjunction with others, of an established and legally
cognizable church, denomination or sect, and the person rendering service
remains accountable to its established authority.
10According to the ABD, the overall numbers of licensees
are as follows: 5,784 Licensed Professional Counselors, 840 Marriage and Family
Therapists, 260 Licensed Substance Abuse Treatment Providers, and 1,876
Certified Substance Abuse Counselors.
11Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
12"Locality" can refer to either local
governments or the locations in the Commonwealth where the activities relevant
to the regulatory change are most likely to occur.
13§ 2.2-4007.04 defines "particularly affected"
as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments define conversion therapy and establish that
the standard of practice for persons licensed, certified, or registered by the
board preclude the provision of conversion therapy to persons younger than 18
years of age.
Part I
General Provisions
18VAC115-20-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Counseling"
"Professional counselor"
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary counseling services" means activities
such as case management, recordkeeping, referral, and coordination of services.
"Applicant" means any individual who has submitted
an official application and paid the application fee for licensure as a
professional counselor.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"Candidate for licensure" means a person who has
satisfactorily completed all educational and experience requirements for
licensure and has been deemed eligible by the board to sit for its
examinations.
"Clinical counseling services" means activities
such as assessment, diagnosis, treatment planning, and treatment
implementation.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"CORE" means Council on Rehabilitation Education.
"Exempt setting" means an agency or institution in
which licensure is not required to engage in the practice of counseling
according to the conditions set forth in § 54.1-3501 of the Code of
Virginia.
"Face-to-face" means the in-person delivery of
clinical counseling services for a client.
"Group supervision" means the process of clinical
supervision of no more than six persons in a group setting provided by a
qualified supervisor.
"Internship" means a formal academic course from a
regionally accredited college or university in which supervised, practical
experience is obtained in a clinical setting in the application of counseling
principles, methods, and techniques.
"Jurisdiction" means a state, territory, district,
province, or country that has granted a professional certificate or license to
practice a profession, use a professional title, or hold oneself out as a practitioner
of that profession.
"Nonexempt setting" means a setting that does not
meet the conditions of exemption from the requirements of licensure to engage
in the practice of counseling as set forth in § 54.1-3501 of the Code of
Virginia.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
responsible for accrediting senior postsecondary institutions.
"Residency" means a postgraduate, supervised,
clinical experience registered with the board.
"Resident" means an individual who has submitted a
supervisory contract and has received board approval to provide clinical
services in professional counseling under supervision.
"Supervision" means the ongoing process performed
by a supervisor who monitors the performance of the person supervised and
provides regular, documented individual or group consultation, guidance, and
instruction that is specific to the clinical counseling services being
performed with respect to the clinical skills and competencies of the person
supervised.
Part V
Standards of Practice; Unprofessional Conduct; Disciplinary Actions;
Reinstatement
18VAC115-20-130. Standards of practice.
A. The protection of the public health, safety, and welfare
and the best interest of the public shall be the primary guide in determining
the appropriate professional conduct of all persons whose activities are
regulated by the board. Regardless of the delivery method, whether in person,
by phone, or electronically, these standards shall apply to the practice of
counseling.
B. Persons licensed or registered by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare;
2. Practice only within the boundaries of their competence,
based on their education, training, supervised experience, and appropriate
professional experience and represent their education, training, and experience
accurately to clients;
3. Stay abreast of new counseling information, concepts,
applications, and practices that are necessary to providing appropriate,
effective professional services;
4. Be able to justify all services rendered to clients as
necessary and appropriate for diagnostic or therapeutic purposes;
5. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making appropriate
arrangements for the continuation of treatment for clients, when necessary,
following termination of a counseling relationship;
6. Make appropriate arrangements for continuation of services,
when necessary, during interruptions such as vacations, unavailability,
relocation, illness, and disability;
7. Disclose to clients all experimental methods of treatment
and inform clients of the risks and benefits of any such treatment. Ensure that
the welfare of the clients is in no way compromised in any experimentation or
research involving those clients;
8. Neither accept nor give commissions, rebates, or other
forms of remuneration for referral of clients for professional services;
9. Inform clients of the purposes, goals, techniques,
procedures, limitations, potential risks, and benefits of services to be
performed; the limitations of confidentiality; and other pertinent information
when counseling is initiated and throughout the counseling process as
necessary. Provide clients with accurate information regarding the implications
of diagnosis, the intended use of tests and reports, fees, and billing
arrangements;
10. Select tests for use with clients that are valid,
reliable, and appropriate and carefully interpret the performance of
individuals not represented in standardized norms;
11. Determine whether a client is receiving services from
another mental health service provider, and if so, refrain from providing
services to the client without having an informed consent discussion with the
client and having been granted communication privileges with the other
professional;
12. Use only in connection with one's practice as a mental
health professional those educational and professional degrees or titles that
have been earned at a college or university accredited by an accrediting agency
recognized by the U.S. Department of Education, or credentials granted by a
national certifying agency, and that are counseling in nature; and
13. Advertise professional services fairly and accurately in a
manner that is not false, misleading, or deceptive; and
14. Not engage in conversion therapy with any person
younger than 18 years of age.
C. In regard to patient records, persons licensed by the
board shall:
1. Maintain written or electronic clinical records for each client
to include treatment dates and identifying information to substantiate
diagnosis and treatment plan, client progress, and termination;
2. Maintain client records securely, inform all employees of
the requirements of confidentiality, and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality;
3. Disclose or release records to others only with the
client's expressed written consent or that of the client's legally authorized
representative in accordance with § 32.1-127.1:03 of the Code of Virginia;
4. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from the client or the
client's legally authorized representative before (i) videotaping, (ii) audio
recording, (iii) permitting third party observation, or (iv) using identifiable
client records and clinical materials in teaching, writing, or public
presentations; and
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years) or 10 years
following termination, whichever comes later;
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have been transferred to another mental health
service provider or given to the client or his legally authorized
representative.
D. In regard to dual relationships, persons licensed by the
board shall:
1. Avoid dual relationships with clients that could impair
professional judgment or increase the risk of harm to clients. Examples of such
relationships include, but are not limited to, familial, social,
financial, business, bartering, or close personal relationships with clients.
Counselors shall take appropriate professional precautions when a dual
relationship cannot be avoided, such as informed consent, consultation,
supervision, and documentation to ensure that judgment is not impaired and no
exploitation occurs;
2. Not engage in any type of romantic relationships or sexual
intimacies with clients or those included in a collateral relationship with the
client and not counsel persons with whom they have had a romantic relationship
or sexual intimacy. Counselors shall not engage in romantic relationships or
sexual intimacies with former clients within a minimum of five years after
terminating the counseling relationship. Counselors who engage in such
relationship or intimacy after five years following termination shall have the
responsibility to examine and document thoroughly that such relations do not
have an exploitive nature, based on factors such as duration of counseling,
amount of time since counseling, termination circumstances, client's personal
history and mental status, or adverse impact on the client. A client's consent
to, initiation of, or participation in sexual behavior or involvement with a
counselor does not change the nature of the conduct nor lift the regulatory
prohibition;
3. Not engage in any romantic relationship or sexual intimacy
or establish a counseling or psychotherapeutic relationship with a supervisee
or student. Counselors shall avoid any nonsexual dual relationship with a
supervisee or student in which there is a risk of exploitation or potential
harm to the supervisee or student or the potential for interference with the
supervisor's professional judgment; and
4. Recognize conflicts of interest and inform all parties of
the nature and directions of loyalties and responsibilities involved.
E. Persons licensed by this board shall report to the board
known or suspected violations of the laws and regulations governing the practice
of professional counseling.
F. Persons licensed by the board shall advise their clients
of their right to report to the Department of Health Professions any
information of which the licensee may become aware in his professional capacity
indicating that there is a reasonable probability that a person licensed or
certified as a mental health service provider, as defined in § 54.1-2400.1
of the Code of Virginia, may have engaged in unethical, fraudulent, or
unprofessional conduct as defined by the pertinent licensing statutes and
regulations.
Part I
General Provisions
18VAC115-30-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Certified substance abuse counselor"
"Certified substance abuse counseling assistant"
"Licensed substance abuse treatment practitioner"
"Practice of substance abuse treatment"
"Substance abuse" and "substance
dependence"
"Substance abuse treatment"
B. The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Applicant" means an individual who has submitted a
completed application with documentation and the appropriate fees to be examined
for certification as a substance abuse counselor or substance abuse counseling
assistant.
"Candidate" means a person who has been approved to
take the examinations for certification as a substance abuse counselor or
substance abuse counseling assistant.
"Clinical supervision" means the ongoing process
performed by a clinical supervisor who monitors the performance of the person
supervised and provides regular, documented face-to-face consultation, guidance
and education with respect to the clinical skills and competencies of the
person supervised.
"Clinical supervisor" means one who provides
case-related supervision, consultation, education and guidance for the
applicant. The supervisor must be credentialed as defined in 18VAC115-30-60 C.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Contact hour" means the amount of credit awarded
for 60 minutes of participation in and successful completion of a continuing education
program.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Didactic" means teaching-learning methods that
impart facts and information, usually in the form of one-way communication
(includes directed readings and lectures).
"Group supervision" means the process of clinical
supervision of no less than two nor more than six persons in a group setting
provided by a clinical supervisor.
"NAADAC" means the Association of Addiction
Professionals.
"NCC AP" means the National Certification
Commission for Addiction Professionals, an affiliate of NAADAC.
"Regionally accredited" means accredited by one of
the regional accreditation agencies recognized by the U.S. Department of
Education as responsible for accrediting senior postsecondary institutions.
"Substance abuse counseling" means applying a
counseling process, treatment strategies and rehabilitative services to help an
individual to:
1. Understand his substance use, abuse, or dependency;
and
2. Change his drug-taking behavior so that it does not
interfere with effective physical, psychological, social, or vocational
functioning.
Part V
Standards of Practice; Disciplinary Actions; Reinstatement
18VAC115-30-140. Standards of practice.
A. The protection of the public health, safety, and welfare
and the best interest of the public shall be the primary guide in determining
the appropriate professional conduct of all persons whose activities are
regulated by the board.
B. Persons certified by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare.
2. Be able to justify all services rendered to clients as
necessary for diagnostic or therapeutic purposes.
3. Practice only within the competency area for which they are
qualified by training or experience.
4. Report to the board known or suspected violations of the
laws and regulations governing the practice of certified substance abuse
counselors or certified substance abuse counseling assistants.
5. Neither accept nor give commissions, rebates, or other
forms of remuneration for referral of clients for professional services. Make
appropriate consultations and referrals based on the best interest of clients.
6. Stay abreast of new developments, concepts, and practices
that are necessary to providing appropriate services.
7. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making arrangements
for the continuation of treatment for clients when necessary, following
termination of a counseling relationship.
8. Not willfully or negligently breach the confidentiality
between a practitioner and a client. A breach of confidentiality that is
required or permitted by applicable law or beyond the control of the
practitioner shall not be considered negligent or willful.
9. Not engage in conversion therapy with any person younger
than 18 years of age.
C. In regard to client records, persons certified by the
board shall:
1. Disclose counseling records to others only in accordance
with applicable law.
2. Maintain client records securely, inform all employees of
the requirements of confidentiality, and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality.
3. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from the client or the
client's legally authorized representative before (i) videotaping, (ii) audio
recording, (iii) permitting third-party observation, or (iv) using identifiable
client records and clinical materials in teaching, writing, or public
presentations.
4. Maintain timely, accurate, legible, and complete written or
electronic records for each client, to include counseling dates and identifying
information to substantiate the substance abuse counseling plan, client
progress, and termination.
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years);
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have been transferred to another mental health
service provider or given to the client or the client's legally authorized
representative.
D. In regard to dual relationships, persons certified by the
board shall:
1. Not engage in dual relationships with clients, former
clients, supervisees, and supervisors that are harmful to the client's or
supervisee's well-being or that would impair the substance abuse counselor's,
substance abuse counseling assistant's, or supervisor's objectivity and
professional judgment or increase the risk of client or supervisee
exploitation. This prohibition includes such activities as counseling close
friends, former sexual partners, employees, or relatives or engaging in
business relationships with clients.
2. Not engage in sexual intimacies or romantic relationships
with current clients or supervisees. For at least five years after cessation or
termination of professional services, certified substance abuse counselors and
certified substance abuse counseling assistants shall not engage in sexual
intimacies or romantic relationships with a client or those included in
collateral therapeutic services. Because sexual or romantic relationships are
potentially exploitative, certified substance abuse counselors and certified
substance abuse counseling assistants shall bear the burden of demonstrating
that there has been no exploitation. A client's consent to, initiation of, or
participation in sexual behavior or involvement with a certified substance
abuse counselor or certified substance abuse counseling assistants does not
change the nature of the conduct nor lift the regulatory prohibition.
3. Recognize conflicts of interest and inform all parties of
obligations, responsibilities, and loyalties to third parties.
E. Upon learning of evidence that indicates a reasonable
probability that another mental health provider is or may be guilty of a
violation of standards of conduct as defined in statute or regulation, persons
certified by the board shall advise their clients of their right to report such
misconduct to the Department of Health Professions in accordance with § 54.1-2400.4
of the Code of Virginia.
18VAC115-50-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia: (i) "board," (ii) "marriage and family therapy,"
(iii) "marriage and family therapist," and (iv) "practice of
marriage and family therapy."
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary counseling services" means activities
such as case management, recordkeeping, referral, and coordination of services.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"COAMFTE" means the Commission on Accreditation for
Marriage and Family Therapy Education.
"Clinical marriage and family services" means
activities such as assessment, diagnosis, and treatment planning and treatment
implementation for couples and families.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Face-to-face" means the in-person delivery of clinical
marriage and family services for a client.
"Internship" means a formal academic course from a
regionally accredited university in which supervised practical experience is
obtained in a clinical setting in the application of counseling principles, methods,
and techniques.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
as responsible for accrediting senior post-secondary institutions and training
programs.
"Residency" means a postgraduate, supervised
clinical experience registered with the board.
"Resident" means an individual who has submitted a
supervisory contract to the board and has received board approval to provide
clinical services in marriage and family therapy under supervision.
"Supervision" means an ongoing process performed by
a supervisor who monitors the performance of the person supervised and provides
regular, documented, individual or group consultation, guidance, and
instruction with respect to the clinical skills and competencies of the person
or persons being supervised.
18VAC115-50-110. Standards of practice.
A. The protection of the public's health, safety, and
welfare and the best interest of the public shall be the primary guide in
determining the appropriate professional conduct of all persons whose
activities are regulated by the board. Regardless of the delivery method,
whether in person, by phone or electronically, these standards shall apply to
the practice of marriage and family therapy.
B. Persons licensed or
registered by the board shall:
1. Practice in a manner that is in the best interest of the
public and does not endanger the public health, safety, or welfare;
2. Practice only within the boundaries of their competence,
based on their education, training, supervised experience, and
appropriate professional experience and represent their education, training,
and experience accurately to clients;
3. Stay abreast of new marriage and family therapy information,
concepts, applications, and practices that are necessary to providing
appropriate, effective professional services;
4. Be able to justify all services rendered to clients as
necessary and appropriate for diagnostic or therapeutic purposes;
5. Document the need for and steps taken to terminate a
counseling relationship when it becomes clear that the client is not benefiting
from the relationship. Document the assistance provided in making appropriate
arrangements for the continuation of treatment for clients, when necessary,
following termination of a counseling relationship;
6. Make appropriate arrangements for continuation of services,
when necessary, during interruptions such as vacations, unavailability,
relocation, illness, and disability;
7. Disclose to clients all experimental methods of treatment
and inform client of the risks and benefits of any such treatment. Ensure that
the welfare of the client is not compromised in any experimentation or research
involving those clients;
8. Neither accept nor give commissions, rebates or other forms
of remuneration for referral of clients for professional services;
9. Inform clients of the purposes, goals, techniques,
procedures, limitations, potential risks, and benefits of services to be
performed; the limitations of confidentiality; and other pertinent information
when counseling is initiated and throughout the counseling process as
necessary. Provide clients with accurate information regarding the implications
of diagnosis, the intended use of tests and reports, fees, and billing
arrangements;
10. Select tests for use with clients that are valid, reliable,
and appropriate and carefully interpret the performance of individuals not
represented in standardized norms;
11. Determine whether a client is receiving services from
another mental health service provider, and if so, refrain from providing
services to the client without having an informed consent discussion with the
client and having been granted communication privileges with the other
professional;
12. Use only in connection with one's practice as a mental
health professional those educational and professional degrees or titles that
have been earned at a college or university accredited by an accrediting agency
recognized by the U.S. Department of Education, or credentials granted by a
national certifying agency, and that are counseling in nature; and
13. Advertise professional services fairly and accurately in a
manner that is not false, misleading or deceptive; and
14. Not engage in conversion therapy with any person
younger than 18 years of age.
C. In regard to patient records, persons licensed by the
board shall:
1. Maintain written or electronic clinical records for each
client to include treatment dates and identifying information to substantiate
diagnosis and treatment plan, client progress, and termination;
2. Maintain client records securely, inform all employees of
the requirements of confidentiality and provide for the destruction of records
that are no longer useful in a manner that ensures client confidentiality;
3. Disclose or release client records to others only with
clients' expressed written consent or that of their legally authorized
representative in accordance with § 32.1-127.1:03 of the Code of Virginia;
4. Ensure confidentiality in the usage of client records and
clinical materials by obtaining informed consent from clients or their legally
authorized representative before (i) videotaping, (ii) audio recording, (iii)
permitting third party observation, or (iv) using identifiable client records
and clinical materials in teaching, writing, or public presentations; and
5. Maintain client records for a minimum of five years or as
otherwise required by law from the date of termination of the counseling
relationship with the following exceptions:
a. At minimum, records of a minor child shall be maintained
for five years after attaining the age of majority (18 years) or 10 years
following termination, whichever comes later;
b. Records that are required by contractual obligation or
federal law to be maintained for a longer period of time; or
c. Records that have transferred to another mental health
service provider or given to the client or his legally authorized
representative.
D. In regard to dual relationships, persons licensed by the board
shall:
1. Avoid dual relationships with clients that could impair
professional judgment or increase the risk of harm to clients. Examples of such
relationships include, but are not limited to, familial, social,
financial, business, bartering, or close personal relationships with clients.
Marriage and family therapists shall take appropriate professional precautions
when a dual relationship cannot be avoided, such as informed consent,
consultation, supervision, and documentation to ensure that judgment is not
impaired and no exploitation occurs;
2. Not engage in any type of romantic relationships or sexual
intimacies with clients or those included in a collateral relationship with the
client and also not counsel persons with whom they have had a sexual intimacy
or romantic relationship. Marriage and family therapists shall not engage in
romantic relationships or sexual intimacies with former clients within a
minimum of five years after terminating the counseling relationship. Marriage
and family therapists who engage in such relationship or intimacy after five
years following termination shall have the responsibility to examine and
document thoroughly that such relations do not have an exploitive nature, based
on factors such as duration of counseling, amount of time since counseling,
termination circumstances, client's personal history and mental status, or
adverse impact on the client. A client's consent to, initiation of or
participation in sexual behavior or involvement with a marriage and family therapist
does not change the nature of the conduct nor lift the regulatory prohibition;
3. Not engage in any romantic relationships or sexual
relationship or establish a counseling or psychotherapeutic relationship with a
supervisee or student. Marriage and family therapists shall avoid any nonsexual
dual relationship with a supervisee or student in which there is a risk of
exploitation or potential harm to the supervisee or student or the potential
for interference with the supervisor's professional judgment; and
4. Recognize conflicts of interest and inform all parties of
the nature and directions of loyalties and responsibilities involved.
E. Persons licensed by this board shall report to the board
known or suspected violations of the laws and regulations governing the
practice of marriage and family therapy.
F. Persons licensed by the board shall advise their clients
of their right to report to the Department of Health Professions any
information of which the licensee may become aware in his professional capacity
indicating that there is a reasonable probability that a person licensed or
certified as a mental health service provider, as defined in § 54.1-2400.1
of the Code of Virginia, may have engaged in unethical, fraudulent or
unprofessional conduct as defined by the pertinent licensing statutes and
regulations.
Part I
General Provisions
18VAC115-60-10. Definitions.
A. The following words and terms when used in this chapter
shall have the meaning ascribed to them in § 54.1-3500 of the Code of
Virginia:
"Board"
"Licensed substance abuse treatment practitioner"
"Substance abuse"
"Substance abuse treatment"
B. The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Ancillary services" means activities such as case
management, recordkeeping, referral, and coordination of services.
"Applicant" means any individual who has submitted
an official application and paid the application fee for licensure as a
substance abuse treatment practitioner.
"CACREP" means the Council for Accreditation of
Counseling and Related Educational Programs.
"Candidate for licensure" means a person who has
satisfactorily completed all educational and experience requirements for
licensure and has been deemed eligible by the board to sit for its
examinations.
"Clinical substance abuse treatment services" means
activities such as assessment, diagnosis, treatment planning, and treatment
implementation.
"COAMFTE" means the Commission on Accreditation for
Marriage and Family Therapy Education.
"Competency area" means an area in which a person
possesses knowledge and skill and the ability to apply them in the clinical
setting.
"Conversion therapy" means any practice or
treatment that seeks to change an individual's sexual orientation or gender
identity, including efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attractions or feelings toward
individuals of the same gender. Conversion therapy does not include:
1. Counseling that provides assistance to a person
undergoing gender transition; or
2. Counseling that provides acceptance, support, and
understanding of a person or facilitates a person's coping, social support, and
identity exploration and development, including sexual-orientation-neutral
interventions to prevent or address unlawful conduct or unsafe sexual
practices, as long as such counseling does not seek to change an individual's
sexual orientation or gender identity in any direction.
"Exempt setting" means an agency or institution in
which licensure is not required to engage in the practice of substance abuse
treatment according to the conditions set forth in § 54.1-3501 of the Code
of Virginia.
"Face-to-face" means the in-person delivery of clinical
substance abuse treatment services for a client.
"Group supervision" means the process of clinical
supervision of no more than six persons in a group setting provided by a
qualified supervisor.
"Internship" means a formal academic course from a
regionally accredited university in which supervised, practical experience is
obtained in a clinical setting in the application of counseling principles,
methods and techniques.
"Jurisdiction" means a state, territory, district,
province, or country which that has granted a professional
certificate or license to practice a profession, use a professional title, or
hold oneself out as a practitioner of that profession.
"Nonexempt setting" means a setting which that
does not meet the conditions of exemption from the requirements of licensure to
engage in the practice of substance abuse treatment as set forth in § 54.1-3501
of the Code of Virginia.
"Regional accrediting agency" means one of the
regional accreditation agencies recognized by the U.S. Secretary of Education
responsible for accrediting senior postsecondary institutions.