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2008 SESSION
083246300Be it enacted by the General Assembly of Virginia:
1. That §§ 2.2-3705.7, 2.2-4006, 2.2-4007.07, 2.2-4013, 2.2-4014, 2.2-4015, 2.2-4021, 3.1-949.4, 10.1-559.2, 10.1-1184, 10.1-1185, 10.1-1186, 10.1-1186.2, 10.1-1186.3, 10.1-1187.1, 10.1-1187.3, 10.1-1187.6, 10.1-1197.3, 10.1-1301, 10.1-1302, 10.1-1306, 10.1-1307, 10.1-1307.01, 10.1-1307.2, 10.1-1307.3, 10.1-1309, 10.1-1309.1, 10.1-1310, 10.1-1310.1, 10.1-1311, 10.1-1314, 10.1-1314.1, 10.1-1315, 10.1-1316, 10.1-1318, 10.1-1320, 10.1-1320.1, 10.1-1322, 10.1-1322.4, 10.1-1400, 10.1-1401, 10.1-1408.5, 10.1-1455, 10.1-2113, 10.1-2131, 15.2-924, 15.2-5101, 21-122.1, 28.2-1205.1, 29.1-213, 29.1-214, 32.1-164, as it is currently effective and as it shall become effective, 45.1-161.6, 45.1-179.9, 45.1-254, 46.2-1178.1, 46.2-1179.1, 46.2-1187.2, 54.1-2300, as it is currently effective and as it shall become effective, 56-586.1, 58.1-3660, 58.1-3664, 62.1-44.3, 62.1-44.4, 62.1-44.5, 62.1-44.9, 62.1-44.13, 62.1-44.14, 62.1-44.15, 62.1-44.15:01, 62.1-44.15:1, 62.1-44.15:1.1, 62.1-44.15:3, 62.1-44.15:4, 62.1-44.15:5.01, 62.1-44.15:5.1, 62.1-44.15:6, 62.1-44.15:20, 62.1-44.15:21, 62.1-44.15:22, 62.1-44.15:23, 62.1-44.16, 62.1-44.17, 62.1-44.17:1.1, 62.1-44.18:2, 62.1-44.18:3, 62.1-44.19, 62.1-44.19:1, 62.1-44.19:3.3, 62.1-44.19:3.4, 62.1-44.19:8, 62.1-44.19:14, 62.1-44.19:15, 62.1-44.19:16, 62.1-44.20, 62.1-44.23, 62.1-44.25, 62.1-44.26, 62.1-44.27, 62.1-44.28, 62.1-44.29, 62.1-44.31, 62.1-44.32, 62.1-44.34:15.1, 62.1-44.34:18, 62.1-44.34:20, 62.1-44.34:23, 62.1-242, 62.1-243, 62.1-244, 62.1-245, 62.1-247, 62.1-248, 62.1-249, 62.1-250, 62.1-251, 62.1-252, 62.1-255, 62.1-256, 62.1-259, 62.1-260, 62.1-261, 62.1-262, 62.1-263, 62.1-264, 62.1-265, 62.1-266, 62.1-267, 62.1-268, 62.1-269, 62.1-270, and 67-401 of the Code of Virginia are amended and reenacted, and to amend the Code of Virginia by adding sections numbered 10.1-1185.1, 10.1-1185.2, and 10.1-1185.3 as follows:
§ 2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exemptions.
The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:
1. State income, business, and estate tax returns, personal property tax returns, scholastic and confidential records held pursuant to § 58.1-3.
2. Working papers and correspondence of the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly or the Division of Legislative Services; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia. However, no record, which is otherwise open to inspection under this chapter, shall be deemed exempt by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence.
As used in this subdivision:
"Office of the Governor" means the Governor; his chief of staff, counsel, director of policy, Cabinet Secretaries, and the Director of the Virginia Liaison Office; and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104.
"Working papers" means those records prepared by or for an above-named public official for his personal or deliberative use.
3. Library records that can be used to identify both (i) any library patron who has borrowed material from a library and (ii) the material such patron borrowed.
4. Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program.
5. Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision.
6. Records and writings furnished by a member of the General Assembly to a meeting of a standing committee, special committee or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under § 30-110 or of formulating advisory opinions to members on standards of conduct, or both.
7. Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money paid for such utility service.
8. Personal information, as defined in § 2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to § 36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to § 36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to § 15.2-2304 or 15.2-2305. However, access to one's own information shall not be denied.
9. Records regarding the siting of hazardous waste facilities, except as provided in § 10.1-1441, if disclosure of them would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions and provisions of the siting agreement.
10. Records containing information on the site specific location of rare, threatened, endangered or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This exemption shall not apply to requests from the owner of the land upon which the resource is located.
11. Records, memoranda, working papers, graphics, video or audio tapes, production models, data and information of a proprietary nature produced by or for or collected by or for the State Lottery Department relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such official records have not been publicly released, published, copyrighted or patented. Whether released, published or copyrighted, all game-related information shall be subject to public disclosure under this chapter upon the first day of sales for the specific lottery game to which it pertains.
12. Records of the Virginia Retirement System, acting pursuant to § 51.1-124.30, or of a local retirement system, acting pursuant to § 51.1-803, or of the Rector and Visitors of the University of Virginia, acting pursuant to § 23-76.1, relating to the acquisition, holding or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that: (i) such records contain confidential analyses prepared for the Rector and Visitors of the University of Virginia, prepared by the retirement system or provided to the retirement system under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity; and (ii) disclosure of such confidential analyses would have an adverse effect on the value of the investment to be acquired, held or disposed of by the retirement system or the Rector and Visitors of the University of Virginia. Nothing in this subdivision shall be construed to prevent the disclosure of records relating to the identity of any investment held, the amount invested, or the present value of such investment.
13. Names and addresses of subscribers to Virginia Wildlife magazine, published by the Department of Game and Inland Fisheries, provided the individual subscriber has requested in writing that the Department not release such information.
14. Financial, medical, rehabilitative and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§ 51.5-53 et seq.) of Title 51.5.
15. Records of the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; data, records or information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and data, records or information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such data, records or information have not been publicly released, published, copyrighted or patented.
16. Records of the Department of Environmental Quality,
the State Water Control Board, State Air Pollution Control Board or the
Virginia Waste Management Board relating to (i) active federal
environmental enforcement actions that are considered confidential under
federal law and (ii) enforcement strategies, including proposed sanctions for
enforcement actions. Upon request, such records shall be disclosed after a
proposed sanction resulting from the investigation has been proposed to the
director of the agency. This subdivision shall not be construed to prohibit the
disclosure of records related to inspection reports, notices of violation, and
documents detailing the nature of any environmental contamination that may have
occurred or similar documents.
17. As it pertains to any person, records related to the operation of toll facilities that identify an individual, vehicle, or travel itinerary including, but not limited to, vehicle identification data, vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use.
18. Records of the State Lottery Department pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations; and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed.
19. Records of the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result.
20. Records, investigative notes, correspondence, and information pertaining to the planning, scheduling and performance of examinations of holder records pursuant to the Uniform Disposition of Unclaimed Property Act (§ 55-210.1 et seq.) prepared by or for the State Treasurer, his agents, employees or persons employed to perform an audit or examination of holder records.
21. Records of the Virginia Department of Emergency Management or a local governing body relating to citizen emergency response teams established pursuant to an ordinance of a local governing body, to the extent that such records reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program.
22. Records of state or local park and recreation departments and local and regional park authorities to the extent such records contain information identifying a person under the age of 18 years, where the parent or legal guardian of such person has requested in writing that such information not be disclosed. However, nothing in this subdivision shall operate to prohibit the disclosure of information defined as directory information under regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For records of such persons who are emancipated, the right of access may be asserted by the subject thereof.
23. Records submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management, to the extent that they reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network.
24. Records of the Judicial Inquiry and Review Commission made confidential by § 17.1-913.
25. Records of the Virginia Retirement System acting pursuant to § 51.1-124.30 or of a local retirement system acting pursuant to § 51.1-803 (hereinafter collectively referred to as "the retirement system") relating to:
a. Internal deliberations of or decisions by the retirement system on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, to the extent that disclosure of such records would have an adverse impact on the financial interest of the retirement system; and
b. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided by a private entity to the retirement system, to the extent disclosure of such records would have an adverse impact on the financial interest of the retirement system.
For the records specified in subdivision b to be excluded from the provisions of this chapter, the entity shall make a written request to the retirement system:
(1) Invoking such exclusion prior to or upon submission of the data or other materials for which protection from disclosure is sought;
(2) Identifying with specificity the data or other materials for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The retirement system shall determine whether the requested exclusion from disclosure meets the requirements set forth in subdivision b.
Nothing in this subdivision shall be construed to authorize the withholding of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.
26. Records of the Department of Corrections made confidential by § 53.1-233.
27. (Expires July 1, 2008) Information relating to the breed of the vaccinated animal, and any personal identifying information relating to the animal owner that is not made a part of the animal license application, contained in rabies vaccination certificates provided to local treasurers as required by § 3.1-796.87:1.
§ 2.2-4006. Exemptions from requirements of this article.
A. The following agency actions otherwise subject to this chapter and § 2.2-4103 of the Virginia Register Act shall be exempted from the operation of this article:
1. Agency orders or regulations fixing rates or prices.
2. Regulations that establish or prescribe agency organization, internal practice or procedures, including delegations of authority.
3. Regulations that consist only of changes in style or form or corrections of technical errors. Each promulgating agency shall review all references to sections of the Code of Virginia within their regulations each time a new supplement or replacement volume to the Code of Virginia is published to ensure the accuracy of each section or section subdivision identification listed.
4. Regulations that are:
a. Necessary to conform to changes in Virginia statutory law or the appropriation act where no agency discretion is involved;
b. Required by order of any state or federal court of competent jurisdiction where no agency discretion is involved; or
c. 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, and the Registrar has so determined in writing. Notice of the proposed adoption of these regulations and the Registrar's determination shall be published in the Virginia Register not less than 30 days prior to the effective date of the regulation.
5. Preliminary program permit fees of the Department of Environmental Quality assessed pursuant to subsection C of § 10.1-1322.2.
6. Regulations of the Pesticide Control Board adopted pursuant to subsection B of § 3.1-249.51 or clause (v) or (vi) of subsection C of § 3.1-249.53 after having been considered at two or more Board meetings and one public hearing.
7. Regulations of the regulatory boards served by (i) the Department of Labor and Industry pursuant to Title 40.1 and (ii) the Department of Professional and Occupational Regulation or the Department of Health Professions pursuant to Title 54.1 that are limited to reducing fees charged to regulants and applicants.
8. The development and issuance of procedural policy relating to risk-based mine inspections by the Department of Mines, Minerals and Energy authorized pursuant to §§ 45.1-161.82 and 45.1-161.292:55.
9. General permits issued by the (a) State Air
Pollution Control BoardDirector of the
Department of Environmental Quality pursuant to Chapter 13 (§
10.1-1300 et seq.) of Title 10.1 or (b) State Water
Control BoardDirector of the Department of Environmental Quality
pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24 (§
62.1-242 et seq.) of Title 62.1 and Chapter 25 (§ 62.1-254 et seq.) of Title
62.1, (c) Virginia Soil and Water Conservation Board pursuant to the Virginia
Stormwater Management Act (§ 10.1-603.1 et seq.) of Title 10.1, and (d) the
development and issuance of general wetlands permits by the Marine Resources Commission
pursuant to subsection B of § 28.2-1307, if the respective Board or Commission
(i) provides a Notice of Intended Regulatory Action in conformance with the
provisions of § 2.2-4007.01, (ii) following the passage of 30 days from the
publication of the Notice of Intended Regulatory Action forms a technical
advisory committee composed of relevant stakeholders, including potentially
affected citizens groups, to assist in the development of the general permit,
(iii) provides notice and receives oral and written comment as provided in §
2.2-4007.03, and (iv) conducts at least one public hearing on the proposed
general permit.
10. The development and issuance by the Board of Education of guidelines on constitutional rights and restrictions relating to the recitation of the pledge of allegiance to the American flag in public schools pursuant to § 22.1-202.
11. Regulations of the Board of the Virginia College Savings Plan adopted pursuant to § 23-38.77.
12. Regulations of the Marine Resources Commission.
13. Regulations adopted by the Board of Housing and Community Development pursuant to (i) Statewide Fire Prevention Code (§ 27-94 et seq.), (ii) the Industrialized Building Safety Law (§ 36-70 et seq.), (iii) the Uniform Statewide Building Code (§ 36-97 et seq.), and (iv) § 36-98.3, provided the Board (a) provides a Notice of Intended Regulatory Action in conformance with the provisions of § 2.2-4007.01, (b) publishes the proposed regulation and provides an opportunity for oral and written comments as provided in § 2.2-4007.03, and (c) conducts at least one public hearing as provided in §§ 2.2-4009 and 36-100 prior to the publishing of the proposed regulations. Notwithstanding the provisions of this subdivision, any regulations promulgated by the Board shall remain subject to the provisions of § 2.2-4007.06 concerning public petitions, and §§ 2.2-4013 and 2.2-4014 concerning review by the Governor and General Assembly.
14. Amendments to the list of drugs susceptible to counterfeiting adopted by the Board of Pharmacy pursuant to subsection B of § 54.1-3307.
B. Whenever regulations are adopted under this section, the agency shall state as part thereof that it will receive, consider and respond to petitions by any interested person at any time with respect to reconsideration or revision. The effective date of regulations adopted under this subsection shall be in accordance with the provisions of § 2.2-4015, except in the case of emergency regulations, which shall become effective as provided in subsection B of § 2.2-4012.
C. A regulation for which an exemption is claimed under this section or § 2.2-4002, or 2.2-4011 and that is placed before a board or commission for consideration shall be provided at least two days in advance of the board or commission meeting to members of the public that request a copy of that regulation. A copy of that regulation shall be made available to the public attending such meeting.
§ 2.2-4007.07. State Air Pollution Control Board; variances.
The provisions of §§ 2.2-4007 through 2.2-4007.06 shall not
apply to the issuance by the State Air
Pollution Control BoardDirector of the
Department of Environmental Quality of variances to its
regulations adopted by the State Air Pollution Control Board.
§ 2.2-4013. Executive review of proposed and final regulations; changes with substantial impact.
A. The Governor shall adopt and publish procedures by executive order for review of all proposed regulations governed by this chapter by June 30 of the year in which the Governor takes office. The procedures shall include (i) review by the Attorney General to ensure statutory authority for the proposed regulations; and (ii) examination by the Governor to determine if the proposed regulations are (a) necessary to protect the public health, safety and welfare and (b) clearly written and easily understandable. The procedures may also include review of the proposed regulation by the appropriate Cabinet Secretary.
The Governor shall transmit his comments, if any, on a proposed regulation to the Registrar and the agency no later than fifteen days following the completion of the public comment period provided for in § 2.2-4007.01. The Governor may recommend amendments or modifications to any regulation that would bring that regulation into conformity with statutory authority or state or federal laws, regulations or judicial decisions.
Not less than fifteen days following the completion of the public comment period provided for in § 2.2-4007.01, the agency may (i) adopt the proposed regulation if the Governor has no objection to the regulation; (ii) modify and adopt the proposed regulation after considering and incorporating the Governor's objections or suggestions, if any; or (iii) adopt the regulation without changes despite the Governor's recommendations for change.
B. Upon final adoption of the regulation, the agency shall forward a copy of the regulation to the Registrar of Regulations for publication as soon as practicable in the Register. All changes to the proposed regulation shall be highlighted in the final regulation, and substantial changes to the proposed regulation shall be explained in the final regulation.
C. If the Governor finds that one or more changes with substantial impact have been made to the proposed regulation, he may require the agency to provide an additional thirty days to solicit additional public comment on the changes by transmitting notice of the additional public comment period to the agency and to the Registrar within the thirty-day adoption period described in subsection D, and publishing the notice in the Register. The additional public comment period required by the Governor shall begin upon publication of the notice in the Register.
D. A thirty-day final adoption period for regulations shall commence upon the publication of the final regulation in the Register. The Governor may review the final regulation during this thirty-day final adoption period and if he objects to any portion or all of a regulation, the Governor may file a formal objection to the regulation, suspend the effective date of the regulation in accordance with subsection B of § 2.2-4014, or both. If the Governor files a formal objection to the regulation, he shall forward his objections to the Registrar and agency prior to the conclusion of the thirty-day final adoption period. The Governor shall be deemed to have acquiesced to a promulgated regulation if he fails to object to it or if he fails to suspend the effective date of the regulation in accordance with subsection B of § 2.2-4014 during the thirty-day final adoption period. The Governor's objection, or the suspension of the regulation, or both if applicable, shall be published in the Register.
A regulation shall become effective as provided in § 2.2-4015.
E. This section shall not apply to the issuance by the State
Air Pollution Control Board Director of the
Department of Environmental Quality of variances to its
regulations adopted by the State Air
Pollution Control Board.
§ 2.2-4014. Legislative review of proposed and final regulations.
A. After publication of the Register pursuant to § 2.2-4031, the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable or the Joint Commission on Administrative Rules may meet and, during the promulgation or final adoption process, file with the Registrar and the promulgating agency an objection to a proposed or final adopted regulation. The Registrar shall publish any such objection received by him as soon as practicable in the Register. Within 21 days after the receipt by the promulgating agency of a legislative objection, that agency shall file a response with the Registrar, the objecting legislative committee or the Joint Commission on Administrative Rules, and the Governor. If a legislative objection is filed within the final adoption period, subdivision A 1 of § 2.2-4015 shall govern.
B. In addition or as an alternative to the provisions of subsection A, the standing committee of both houses of the General Assembly to which matters relating to the content are most properly referable or the Joint Commission on Administrative Rules may suspend the effective date of any portion or all of a final regulation with the Governor's concurrence. The Governor and (i) the applicable standing committee of each house or (ii) the Joint Commission on Administrative Rules may direct, through a statement signed by a majority of their respective members and by the Governor, that the effective date of a portion or all of the final regulation is suspended and shall not take effect until the end of the next regular legislative session. This statement shall be transmitted to the promulgating agency and the Registrar within the 30-day adoption period, and shall be published in the Register.
If a bill is passed at the next regular legislative session to nullify a portion but not all of the regulation, then the promulgating agency (i) may promulgate the regulation under the provision of subdivision A 4 a of § 2.2-4006, if it makes no changes to the regulation other than those required by statutory law or (ii) shall follow the provisions of §§ 2.2-4007.01 through 2.2-4007.06, if it wishes to also make discretionary changes to the regulation. If a bill to nullify all or a portion of the suspended regulation, or to modify the statutory authority for the regulation, is not passed at the next regular legislative session, then the suspended regulation shall become effective at the conclusion of the session, unless the suspended regulation is withdrawn by the agency.
C. A regulation shall become effective as provided in § 2.2-4015.
D. This section shall not apply to the issuance by the State
Air Pollution Control BoardDirector of the
Department of Environmental Quality of variances to its
regulations adopted by the State Air Pollution Control Board.
§ 2.2-4015. Effective date of regulation; exception.
A. A regulation adopted in accordance with this chapter and the Virginia Register Act (§ 2.2-4100 et seq.) shall become effective at the conclusion of the thirty-day final adoption period provided for in subsection D of § 2.2-4013, or any other later date specified by the agency, unless:
1. A legislative objection has been filed in accordance with § 2.2-4014, in which event the regulation, unless withdrawn by the agency, shall become effective on a date specified by the agency that shall be after the expiration of the applicable twenty-one-day extension period provided in § 2.2-4014;
2. The Governor has exercised his authority in accordance with § 2.2-4013 to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn by the agency, shall become effective on a date specified by the agency that shall be after the period for which the Governor has provided for additional public comment;
3. The Governor and (i) the appropriate standing committees of each house of the General Assembly or (ii) the Joint Commission on Administrative Rules have exercised their authority in accordance with subsection B of § 2.2-4014 to suspend the effective date of a regulation until the end of the next regular legislative session; or
4. The agency has suspended the regulatory process in accordance with § 2.2-4007.06, or for any reason it deems necessary or appropriate, in which event the regulation, unless withdrawn by the agency, shall become effective in accordance with subsection B.
B. Whenever the regulatory process has been suspended for any reason, any action by the agency that either amends the regulation or does not amend the regulation but specifies a new effective date shall be considered a readoption of the regulation for the purposes of appeal. If the regulation is suspended under § 2.2-4007.06, such readoption shall take place after the thirty-day public comment period required by that subsection. Suspension of the regulatory process by the agency may occur simultaneously with the filing of final regulations as provided in subsection B of § 2.2-4013.
When a regulation has been suspended, the agency must set the effective date no earlier than fifteen days from publication of the readoption action and any changes made to the regulation. During that fifteen-day period, if the agency receives requests from at least twenty-five persons for the opportunity to comment on new substantial changes, it shall again suspend the regulation pursuant to § 2.2-4007.06.
C. This section shall not apply to the issuance by the State
Air Pollution Control BoardDirector of the
Department of Environmental Quality of variances to its
regulations adopted by the State Air Pollution Control Board.
§ 2.2-4021. Timetable for decision; exemptions.
A. In cases where a board or commission meets to render (i) an informal fact-finding decision or (ii) a decision on a litigated issue, and information from a prior proceeding is being considered, persons who participated in the prior proceeding shall be provided an opportunity to respond at the board or commission meeting to any summaries of the prior proceeding prepared by or for the board or commission.
B. In any informal fact-finding, formal proceeding, or summary
case decision proceeding in which a hearing officer is not used or is not
empowered to recommend a finding, the board, commission, or agency personnel
responsible for rendering a decision shall render that decision within 90 days
from the date of the informal fact-finding, formal proceeding, or completion of
a summary case decision proceeding, or from a later date agreed to by the named
party and the agency. If the agency does not render a decision within 90 days,
the named party to the case decision may provide written notice to the agency
that a decision is due. If no decision is made within 30 days from agency
receipt of the notice, the decision shall be deemed to be in favor of the named
party. The preceding sentence shall not apply to case decisions before (i) the State Water Control Board or the
Department of Environmental Quality to the extent necessary to comply with the
federal Clean Water Act, (ii) the State Air Pollution Control Board or the
Department of Environmental Quality to the extent necessary to comply with
or the federal Clean Air Act, or (iii)(ii)
the Virginia Soil and Water Conservation Board or the Department of
Conservation and Recreation to the extent necessary to comply with the federal
Clean Water Act. An agency shall provide notification to the named party of its
decision within five days of the decision.
C. In any informal fact-finding, formal proceeding, or summary
case decision proceeding in which a hearing officer is empowered to recommend a
finding, the board, commission, or agency personnel responsible for rendering a
decision shall render that decision within 30 days from the date that the
agency receives the hearing officer's recommendation. If the agency does not
render a decision within 30 days, the named party to the case decision may
provide written notice to the agency that a decision is due. If no decision is
made within 30 days from agency receipt of the notice, the decision is deemed
to be in favor of the named party. The preceding sentence shall not apply to
case decisions before (i) the State Water Control Board or the
Department of Environmental Quality to the extent necessary to comply with the
federal Clean Water Act, (ii) the State Air
Pollution Control Board or the Department of
Environmental Quality to the extent necessary to comply with or
the federal Clean Air Act, or (iii)(ii)
the Virginia Soil and Water Conservation Board or the Department of
Conservation and Recreation to the extent necessary to comply with the federal
Clean Water Act. An agency shall provide notice to the named party of its
decision within five days of the decision.
D. The provisions of subsection B notwithstanding, if the board members or agency personnel who conducted the informal fact-finding, formal proceeding, or summary case decision proceeding are unable to attend to official duties due to sickness, disability, or termination of their official capacity with the agency, then the timeframe provisions of subsection B shall be reset and commence from the date that either new board members or agency personnel are assigned to the matter or a new proceeding is conducted if needed, whichever is later. An agency shall provide notice within five days to the named party of any incapacity of the board members or agency personnel that necessitates a replacement or a new proceeding.
§ 3.1-949.4. Commissioner to receive enforcement authority for the Stage II Vapor Recovery Programs.
A. Upon the request of the Commissioner, the State
Air Pollution Control Board Director of the
Department of Environmental Quality may delegate to the
Commissioner its his authority
under Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1, to implement and enforce
any provisions of its regulations covering the storage
and transfer of petroleum liquids. Upon receiving such delegation, the
authority to implement and enforce the regulations under Chapter 13 of Title
10.1 shall be vested solely in the Commissioner, notwithstanding any provision
of law contained in Title 10.1, except as provided herein. The State
Air Pollution Control BoardDirector of the
Department of Environmental Quality, in delegating itshis
authority under this section, may make the delegation subject to any conditions
ithe deems
appropriate to ensure effective implementation of the regulations according to
the policies of the State Air Pollution Control Board.
B. In addition to the Commissioner's authority to implement and enforce any provisions of the regulations of the State Air Pollution Control Board covering the storage and transfer of petroleum liquids, the Board of Agriculture and Consumer Services shall have the authority to promulgate such regulations as are reasonably necessary for the administration, monitoring and enforcement of the law relating to the storage and transfer of petroleum liquids. Any violation of the provisions covering the storage and transfer of petroleum liquids shall be deemed to be a violation of this chapter, and the Commissioner may take appropriate enforcement action pursuant to the provisions of this chapter.
§ 10.1-559.2. Exclusions from article.
This article shall not apply to any agricultural activity to
which (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of this title or
(ii) a permit issued by the State Water Control Boardunder
the State Water Control Law (§ 62.1-44.2 et seq.), applies.
§ 10.1-1184. State Air Pollution Control Board, State Water Control Board, and Virginia Waste Management Board continued.
The State Air Pollution Control Board, State Water Control Board, and Virginia Waste Management Board are continued and shall promote the environmental quality of the Commonwealth. All policies and regulations adopted or promulgated by the State Air Pollution Control Board, State Water Control Board, Virginia Waste Management Board, and the Council on the Environment and in effect on December 31, 1992, shall continue to be in effect until and unless superseded by new policies or regulations. Representatives of the three Boards shall meet jointly at least twice a year to receive public comment and deliberate about environmental issues of concern to the Commonwealth, including the development and implementation of regulations for multimedia permitting, increased efficiencies for the processing of permit applications and information requests, and enhancement of opportunities for effective public participation.
§ 10.1-1185. Appointment of Director; powers and duties of Director.
The Department shall be headed by a Director appointed by the
Governor to serve at his pleasure for a term
coincident with his own. The Director shall
be an experienced administrator with knowledge of environmental protection and shall
have demonstrated expertise in management and environmental
science, law, or policy. The Director of the Department of Environmental Quality shall,
under the direction and control of the Governor, exercise such power and
perform such duties as are conferred or imposed upon him by law and shall
perform such other duties as may be required of him by the Governor and the
following Boards: the State Air Pollution Control Board, the State Water
Control Board, and the Virginia Waste Management Board. The Director or his
designee shall serve as executive officer of the aforementioned Boards.
All powers and duties conferred or imposed upon the Executive Director of the Department of Air Pollution Control, the Executive Director of the State Water Control Board, the Administrator of the Council on the Environment, and the Director of the Department of Waste Management are continued and conferred or imposed upon the Director of the Department of Environmental Quality or his designee. Wherever in this title and in the Code of Virginia reference is made to the head of a division, department or agency hereinafter transferred to this Department, it shall mean the Director of the Department of Environmental Quality.
§ 10.1-1185.1. Public hearings on draft permits; authority of Director.
A. The Director may convene a public hearings or Board meetings for consideration of permits issued pursuant to the State Air Pollution Control Law (§ 10.1-1300 et seq.), the Waste Management Act (§ 10.1-1400) and State Water Control Law (§ 62.1-44.2 et seq.). For the purposes of this section, the term “Board” shall mean: (i) the State Air Pollution Control Board, with respect to permits pursuant to the State Air Pollution Control Law; (ii) the Virginia Waste Management Board, with respect to permits pursuant to the Waste Management Act; and (iii) the State Water Control Board, with respect to permits pursuant to the State Water Control Law.
B. At any time during the public comment period on a draft permit, any person who has submitted written comments on the draft permit may submit to the Director, in writing, a request for a public hearing on the draft permit. The Director shall convene a public hearing on the draft permit if he determines, based on comments received during the comment period, that: (i) there is substantial public interest in the permit; (ii) there are significant legal or factual issues that are both germane to the draft permit and within the Department’s jurisdiction; and (iii) a public hearing could provide information to assist the Department or the Board. No later than 15 days following the close of the public comment period, the Director shall determine whether to convene a public hearing and notify the applicant of his determination. The Director shall not be required to convene a public hearing to consider legal or factual issues addressed by the Department in preparing the draft permit. The Director may, in his discretion, convene a public hearing on the draft permit.
C. The Director shall convene a subsequent meeting before the Board on the draft permit if he finds, based on comments received during the public comment periods, that: (i) there are significant legal or factual issues that are both germane to the draft permit and within the Department’s jurisdiction; (ii) such issues are capable of resolution by the exercise of the Director’s authority; and (iii) that the Director’s ability to address and resolve those issues would be enhanced by the Board’s participation and advice. No later than 15 days following the public hearing, the Director shall determine whether to convene a Board meeting and notify the applicant of his determination. The Director shall not be required to convene a Board meeting to consider legal or factual issues addressed by the Department in preparing the draft permit.
§ 10.1-1185.2. Notice required; records.
A. Notice of public hearings shall be published at least 30 days prior to such hearing in at least one newspaper of general circulation in the locality where the permitted activity under consideration is sited or by such other means as the Director may prescribe. Notice for Board meetings shall be provided in accordance with the Freedom of Information Act (§ 2.2-3700 et seq.). The Director shall make a good faith effort to notify persons who participated in prior comment periods that the draft permit is on the agenda of the Board meeting. The agenda shall specify a reasonable amount of time for Department, applicant, and public to comment on the draft permit.
B. Public hearings and Board meetings shall be recorded electronically or by court reporter. The recording or transcript, together with written comments submitted during the public comment period, shall become part of the agency files and be available to the public upon request pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
C. Public hearings shall be presided over by the Director or his designee. Board meetings shall be presided over by a quorum of the Board. If a quorum is not present, the Board meeting shall be rescheduled. If a quorum of the Board fails to appear at the rescheduled meeting, the Director shall proceed to take final action on the draft permit.
D. Board meetings shall be held so that a final decision is issued within 90 days of the close of the public comment period or from a later date, as agreed to by the named party and the Department.
§ 10.1-1185.3. Hearings before the Board; recommendation to Director.
A. At the close of comment before the Board, the members present at the Board meeting shall confer in open meeting and vote on recommendations for consideration by the Director in rendering his final determination on the permit. Such recommendations shall be based upon verbal and written comments received during the public comment period, any explanation of comments previously received during the public comment period made at the Board meeting, and the agency files. The Director shall consider any recommendation within the statutory jurisdiction of the Board and adopted by majority vote of the Board members present.
B. The Director may incorporate conditions in the permit based upon Board recommendations if he determines that such conditions: (i) are within the statutory authority of the Department; (ii) were not addressed by the Department in preparing the draft permit; (iii) either provide substantial additional protection to the environment, public health, or natural resources or provide substantially the same level of protection in a more effective or efficient manner; (iv) are consistent with the statutory and regulatory program under which the permit is issued; (v) are technologically and economically feasible; and (vi) do not unfairly or unreasonably burden the applicant with costs or delays that would, in the Director’s judgment, be disproportionate to the benefits reasonably to be expected from them. The Director shall incorporate conditions in the permit based upon recommendations adopted by the Board if he determines that such conditions are necessary to comply with applicable laws and regulations administered by the Department.
C. The Director shall prepare a written record of his final determination on the permit that indicates how he has addressed each Board recommendation. Failure of the Director to prepare a record of decision conforming to the requirements of this section shall not be considered a harmless error should the Director’s decision be subject to judicial review pursuant to § 2.2-4026.
§ 10.1-1186. General powers of the Director.
The Department shall have the following general powers, any of which the Director may delegate as appropriate:
1. Employ such personnel as may be required to carry out the duties of the Department;
2. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including, but not limited to, contracts with the United States, other states, other state agencies and governmental subdivisions of the Commonwealth;
3. Accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient, or desirable;
4. Accept and administer services, property, gifts and other funds donated to the Department;
5. Implement all regulations as may be adopted by the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board;
6. Administer, under the direction of the Boards, funds appropriated to it for environmental programs and make contracts related thereto;
7. Initiate and supervise programs designed to educate citizens on ecology, pollution and its control, technology and its relationship to environmental problems and their solutions, population and its relation to environmental problems, and other matters concerning environmental quality;
8. Advise and coordinate the responses of state agencies to
notices of proceedings by the State Water
Control Board Director to
consider certifications of hydropower projects under 33 U.S.C. § 1341;
9. Advise interested agencies of the Commonwealth of pending proceedings when the Department of Environmental Quality intervenes directly on behalf of the Commonwealth in a Federal Energy Regulatory Commission proceeding or when the Department of Game and Inland Fisheries intervenes in a Federal Energy Regulatory Commission proceeding to coordinate the provision of information and testimony for use in the proceedings;
10. Notwithstanding any other provision of law and to the
extent consistent with federal requirements, following a proceeding as provided
in § 2.2-4019, issue special orders to any person to comply with: (i) the
provisions of any law administered by the Boards, the Director or the
Department, (ii) any condition of a permit or a certification, (iii) any
regulations of the Boards, or (iv) any case decision, as defined in § 2.2-4001,
of the Boards or Director. The issuance of a
special order shall be considered a case decision as defined in § 2.2-4001. The
Director shall not delegate his authority to impose civil penalties in
conjunction with issuance of special orders. For purposes of this subdivision,
"Boards" means the State Air Pollution Control Board, the State Water
Control Board, and the Virginia Waste Management Board; and
11. Issue, reissue, revoke, terminate, modify, amend, and enforce any permits, general permits, licenses, and certificates, including variances and exemptions thereto, authorized or required by laws and regulations administered or implemented by the Department; and
12. Perform all acts necessary or
convenient to carry out the purposes of this chapter.
§ 10.1-1186.2. Supplemental environmental projects.
A. As used in this section, "supplemental environmental project" means an environmentally beneficial project undertaken as partial settlement of a civil enforcement action and not otherwise required by law.
B. The State Air Pollution Control Board, the State Water
Control Board, the Virginia Waste Management Board, or the Director acting on behalf of one of these boards or under his own authority in issuing
any administrative order, or any court of competent jurisdiction as provided
for under this Code, may, in its or his discretion and with the consent of the
person subject to the order, provide for such person to undertake one or more
supplemental environmental projects. The project shall have a reasonable
geographic nexus to the violation or, if no such project is available, shall
advance at least one of the declared objectives of the environmental law or
regulation that is the basis of the enforcement action. Performance of such
projects shall be enforceable in the same manner as any other provision of the
order.
C. The following categories of projects may qualify as supplemental environmental projects, provided the project otherwise meets the requirements of this section: public health, pollution prevention, pollution reduction, environmental restoration and protection, environmental compliance promotion, and emergency planning and preparedness. In determining the appropriateness and value of a supplemental environmental project, the following factors shall be considered by the enforcement authority: net project costs, benefits to the public or the environment, innovation, impact on minority or low income populations, multimedia impact, and pollution prevention. The costs of those portions of a supplemental environmental project that are funded by state or federal low-interest loans, contracts or grants shall be deducted from the net project cost in evaluating the project. In each case in which a supplemental environmental project is included as part of a settlement, an explanation of the project with any appropriate supporting documentation shall be included as part of the case file.
D. Nothing in this section shall require the disclosure of documents exempt from disclosure pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
E. Any decision whether or not to agree to a supplemental
environmental project is within the sole discretion of the applicable board,
officialDirector
or court and shall not be subject to appeal.
F. Nothing in this section shall be interpreted or applied in a manner inconsistent with applicable federal law or any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.
§ 10.1-1186.3. Additional powers of Boards; mediation; alternative dispute resolution.
A. The State Air Pollution Control Board, the State Water
Control Board and the Virginia Waste Management Board, in their discretion, may
employ mediation as defined in § 8.01-581.21, or a dispute resolution
proceeding as defined in § 8.01-576.4, in appropriate cases to resolve
underlying issues, reach a consensus or compromise on contested issues. An
"appropriate case" means any process related to the development of a
regulation or the issuance of a permit in which
it is apparent that there are significant issues of disagreement among
interested persons and for which the Board finds that the use of a mediation or
dispute resolution proceeding is in the public interest. The Boards shall
consider not using a mediation or dispute resolution proceeding if:
1. A definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;
2. The matter involves or may bear upon significant questions of state policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the Board;
3. Maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;
4. The matter significantly affects persons or organizations who are not parties to the proceeding;
5. A full public record of the proceeding is important, and a mediation or dispute resolution proceeding cannot provide such a record; and
6. The Board must maintain continuing jurisdiction over the matter with the authority to alter the disposition of the matter in light of changed circumstances, and a mediation or dispute resolution proceeding would interfere with the Board's fulfilling that requirement.
Mediation and alternative dispute resolution as authorized by this section are voluntary procedures which supplement rather than limit other dispute resolution techniques available to the Boards. Mediation or a dispute resolution proceeding may be employed in the issuance of a permit only with the consent and participation of the permit applicant and shall be terminated at the request of the permit applicant.
B. The decision to employ mediation or a dispute resolution proceeding is in a Board's sole discretion and is not subject to judicial review.
C. The outcome of any mediation or dispute resolution
proceeding shall not be binding upon a Board, but may be considered by a Board
in issuing a permit or promulgating a
regulation.
D. Each Board shall adopt rules and regulations, in accordance with the Administrative Process Act, for the implementation of this section. Such rules and regulations shall include: (i) standards and procedures for the conduct of mediation and dispute resolution, including an opportunity for interested persons identified by the Board to participate in the proceeding; (ii) the appointment and function of a neutral, as defined in § 8.01-576.4, to encourage and assist parties to voluntarily compromise or settle contested issues; and (iii) procedures to protect the confidentiality of papers, work product or other materials.
E. The provisions of § 8.01-576.10 concerning the confidentiality of a mediation or dispute resolution proceeding shall govern all such proceedings held pursuant to this section except where a Board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation.
Nothing in this section shall create or alter any right, action or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (§ 2.2-4000 et seq.), with applicable federal law or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.
§ 10.1-1187.1. Definitions.
"Board or Boards" means the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Environmental Management System" means a comprehensive, cohesive set of documented policies and procedures adopted by a facility or person and used to establish environmental goals, to meet and maintain those goals, to evaluate environmental performance and to achieve measurable or noticeable improvements in environmental performance, through planning, documented management and operational practices, operational changes, self assessments, and management review. The term shall include, but not be limited to, any such system developed in accordance with the International Standards of Operation 14001 standards.
"E2" means an environmental enterprise.
"E3" means an exemplary environmental enterprise.
"E4" means an extraordinary environmental enterprise.
"Facility" means a manufacturing, business, agricultural, or governmental site or installation involving one or more contiguous buildings or structures under common ownership or management.
"Record of sustained compliance" means that the
person or facility (i) has no judgment or conviction entered against it, or
against any key personnel of the person or facility or any person with an
ownership interest in the facility for a criminal violation of environmental
protection laws of the United States, the Commonwealth, or any other state in
the previous five years; (ii) has been neither the cause of, nor liable for,
more than two significant environmental violations in the previous three years;
(iii) has no unresolved notices of violations or potential violations of
environmental requirements with the Department;
(iv) is in compliance with the terms of any order or decree, executive
compliance agreement, or related enforcement measure issued by the or one of the BoardsDepartment,
one of the Boards,Director
or the U.S. Environmental Protection Agency; and (v) has not demonstrated in
any other way an unwillingness or inability to comply with environmental
protection requirements.
§ 10.1-1187.3. Program categories and criteria.
A. The Director shall establish different categories of participation and the criteria and benefits for each category. Such categories shall include, but not be limited to: (i) E2 facilities, (ii) E3 facilities, and (iii) E4 facilities.
B. In order to participate as an E2 facility, a person or facility shall demonstrate that it (i) is developing an environmental management system or has initiated implementation of an environmental management system, (ii) has a commitment to pollution prevention and a plan to reduce environmental impacts from its operations, and (iii) has a record of sustained compliance with environmental requirements. To apply to become an E2 facility, an applicant shall submit the following information to the Department: (a) a policy statement outlining the applicant's commitment to improving environmental quality, (b) an evaluation of the applicant's environmental impacts, (c) the applicant's objectives and targets for addressing significant environmental impacts, and (d) a description of the applicant's pollution prevention program. A person or facility may participate in this program for up to three years, and may apply to renew its participation at the expiration of each three-year period. Incentives for E2 facilities may include, but are not limited to, the following: public recognition of facility performance and reduced fees.
C. In order to participate as an E3 facility, a person or
facility shall demonstrate that it has (i) a fully-implemented environmental
management system, (ii) a pollution prevention program with documented results,
and (iii) a record of sustained compliance with environmental requirements. To
apply to become an E3 facility, an applicant shall submit the following
information to the Department: (a) a policy statement outlining the applicant's
commitment to improving environmental quality; (b) an evaluation of the
applicant's actual and potential environmental impacts; (c) the applicant's
objectives and targets for addressing significant environmental impacts; (d) a
description of the applicant's pollution prevention program; (e) identification
of the applicant's environmental legal requirements; (f) a description of the
applicant's environmental management system that identifies roles,
responsibilities and authorities, reporting and record-keeping, emergency
response procedures, staff training, monitoring, and corrective action
processes for noncompliance with the environmental management system; (g)
voluntary self-assessments; and (h) procedures for internal and external
communications. A person or facility may participate in this program for up to
three years, and may apply to renew its participation at the expiration of each
three-year period. Incentives for E3 facilities may include, but are not
limited to, the following: public recognition of facility performance, reduced
fees, reduced inspection priority, a single point-of-contact between the
facility and the Department, streamlined environmental reporting, reduced
monitoring requirements, prioritized permit and permit amendment review, and
the ability to implement alternative compliance measures approved by the appropriate
Board Director in
accordance with § 10.1-1187.6.
D. In order to participate as an E4 facility, a person or facility shall meet the criteria for participation as an E3 facility, and shall have (i) implemented and completed at least one full cycle of an environmental management system as verified by an unrelated third-party qualified to audit environmental management systems and (ii) committed to measures for continuous and sustainable environmental progress and community involvement. To apply to become an E4 facility, an applicant shall submit (a) the information required to apply to become an E3 facility, (b) documentation evidencing implementation and completion of at least one full cycle of an environmental management system and evidencing review and verification by an unrelated third party, and (c) documentation that the applicant has committed to measures for continuous and sustainable environmental progress and community involvement. A person or facility may participate in this program for up to three years, and may apply to renew its participation at the expiration of each three-year period. Incentives for E4 facilities may include all of the incentives available to E3 facilities. Any facility or person that has been accepted into the National Performance Track Programs by the U.S. Environmental Protection Agency shall be deemed to be an E4 facility. If acceptance in the Program is revoked or suspended by the U.S. Environmental Protection Agency, participation as an E4 facility shall also be terminated or suspended.
§ 10.1-1187.6. Approval of alternate compliance methods.
A. To the extent consistent with federal law and
notwithstanding any other provision of law, the Air Pollution
Control Board, the Waste Management Board, and the State Water Control BoardDirector
may grant alternative compliance methods to the regulations adopted pursuant to their authorities, respectively, under §§ 10.1-1308,
10.1-1402, and 62.1-44.15 for persons or facilities that have been accepted by
the Department as meeting the criteria for E3 and E4 facilities under §
10.1-1187.3, including but not limited to changes to monitoring and reporting
requirements and schedules, streamlined submission requirements for permit
renewals, the ability to make certain operational changes without prior
approval, and other changes that would not increase a facility's impact on the
environment. Such alternative compliance methods may allow alternative methods
for achieving compliance with prescribed regulatory standards, provided that
the person or facility requesting the alternative compliance method
demonstrates that the method will (i) meet the purpose of the applicable
regulatory standard, (ii) promote achievement of those purposes through
increased reliability, efficiency, or cost effectiveness, and (iii) afford
environmental protection equal to or greater than that provided by the
applicable regulatory standard. No alternative compliance method shall be
approved that would alter an ambient air quality standard, ground water
protection standard, or water quality standard and no alternative compliance
method shall be approved that would increase the pollutants released to the
environment, increase impacts to state waters, or otherwise result in a loss of
wetland acreage.
B. Notwithstanding any other provision of law, an alternate compliance method may be approved under this section after at least 30 days' public notice and opportunity for comment, and a determination that the alternative compliance method meets the requirements of this section.
C. Nothing in this section shall be interpreted or applied in
a manner inconsistent with the applicable federal law or other requirement
necessary for the Commonwealth to obtain or retain federal delegation or
approval of any regulatory program. Before approving an alternate compliance
method affecting any such program, each Board the
Director may
obtain the approval of the federal agency responsible for such delegation or
approval. Any one of the BoardsThe
Director may withdraw approval of the
alternate compliance method at any time if any conditions under which the
alternate compliance method was originally approved change, or if the recipient
has failed to comply with any of the alternative compliance method
requirements.
D. Upon approval of the alternative compliance method under this section, the alternative compliance method shall be incorporated into the relevant permits as a minor permit modification with no associated fee. The permits shall also contain any such provisions that shall go into effect in the event that the participant fails to fulfill its obligations under the variance, or is removed from the program for reasons specified by the Director under subsection B of § 10.1-1187.4.
§ 10.1-1197.3. Purposes of Fund; loans to small businesses; administrative costs.
A. Moneys in the Fund shall be used to make loans or to guarantee loans to small businesses for the purchase and installation of environmental pollution control and prevention equipment certified by the Department as meeting the following requirements:
1. The air pollution control equipment is needed by the small business to comply with the federal Clean Air Act (42 U.S.C. § 7401 et seq.); or
2. The pollution control equipment will allow the small business to implement voluntary pollution prevention measures.
Moneys in the Fund may also be used to make loans or to guarantee loans to small businesses for the installation of voluntary agricultural best management practices, as defined in § 58.1-339.3.
B. The Department or its designated agent shall determine the terms and conditions of any loan. All loans shall be evidenced by appropriate security as determined by the Department or its designated agent. The Department, or its agent, may require any documents, instruments, certificates, or other information deemed necessary or convenient in connection with any loan from the Fund.
C. A portion of the Fund balance may be used to cover the reasonable and necessary costs of administering the Fund. Unless otherwise authorized by the Governor or his designee, the costs of administering the Fund shall not exceed a base year amount of $65,000 per year, using fiscal year 2000 as the base year, adjusted annually by the Consumer Price Index.
D. The Fund shall not be used to make loans to small
businesses for the purchase and installation of equipment needed to comply with
an enforcement action by the Department,
the State Air Pollution Control Board, the State Water Control Board, or the
Virginia Waste Management BoardDirector.
§ 10.1-1301. State Air Pollution Control Board; membership; terms; vacancies.
The State Air Pollution Control Board shall be composed of fiveseven
members appointed by the Governor for four-year terms. Vacancies other than by
expiration of term shall be filled by the Governor by appointment for the
unexpired term.
§ 10.1-1302. Qualifications of members of Board.
The members of the Board shall be citizens of the Commonwealth
and shall be selected from the Commonwealth at large on the basis of merit
without regard to political affiliation. At least a
majority of members appointed to the Board shall represent the public interest
and not derive any significant portion of their income from persons subject to
permits or enforcement orders of the Board.Members shall, by
their education, training, or experience, be
knowledgeable of air quality
control and regulation, and shall be fairly representative of conservation, public health, business, and
agriculture.
Notwithstanding any other provision of this section relating to Board
membership, the qualifications for Board membership shall not be more strict
than those which may be required by federal statute or regulations of the
United States Environmental Protection Agency. The provisions of this section
shall be in addition to the requirements of the State and Local Government
Conflict of Interests Act (§ 2.2-3100 et seq.).
§ 10.1-1306. Inspections, investigations, etc.
The BoardDirector
shall make, or cause to be made, such investigations and inspections and do
such other things as are reasonably necessary to carry out the provisions of
this chapter, within the limits of the appropriations, study grants, funds, or
personnel which are available for the purposes of this chapter, including the
achievement and maintenance of such levels of air quality as will protect human
health, welfare and safety and to the greatest degree practicable prevent
injury to plant and animal life and property and which will foster the comfort
and convenience of the people of the Commonwealth and their enjoyment of life
and property and which will promote the economic and social development of the
Commonwealth and facilitate enjoyment of its attractions.
§ 10.1-1307. Powers of the Director and the Board.
A. The Board shall have the power to control and regulate its internal affairs; initiate and supervise research programs to determine the causes, effects, and hazards of air pollution; initiate and supervise statewide programs of air pollution control education; cooperate with and receive money from the federal government or any county or municipal government, and receive money from any other source, whether public or private; develop a comprehensive program for the study, abatement, and control of all sources of air pollution in the Commonwealth; and advise, consult, and cooperate with agencies of the United States and all agencies of the Commonwealth, political subdivisions, private industries, and any other affected groups in furtherance of the purposes of this chapter.
B. The Board may adopt by regulation emissions standards controlling the release into the atmosphere of air pollutants from motor vehicles, only as provided in Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2.
C. After any regulation has been adopted by the Board pursuant
to § 10.1-1308, itthe Director
may, in itshis
discretion grant local variances therefrom, if ithe
finds after an investigation and hearing that local conditions warrant. If
local variances are permitted, the BoardDirector
shall issue an order to this effect. Such order shall be subject to revocation
or amendment at any time if the BoardDirector
after a hearing determines that the amendment or revocation is warranted.
Variances and amendments to variances shall be adopted only after a public
hearing has been conducted pursuant to the public advertisement of the subject,
date, time, and place of the hearing at least 30 days prior to the scheduled
hearing. The hearing shall be conducted to give the public an opportunity to
comment on the variance.
D. After the Board has adopted the regulations provided for in
§ 10.1-1308, itthe Director
shall have the power to: (i) initiate and receive complaints as to air
pollution; (ii) hold or cause to be held hearings and enter orders diminishing
or abating the causes of air pollution and orders to enforce its
regulations pursuant to § 10.1-1309; and (iii) institute legal proceedings, including
suits for injunctions for the enforcement of its orders,
regulations, and the abatement and control of air pollution and for the
enforcement of penalties.
E. The Board in making regulations and the Director in approving variances, control programs, or permits, and the courts in granting injunctive relief under the provisions of this chapter, shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it, including:
1. The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused;
2. The social and economic value of the activity involved;
3. The suitability of the activity to the area in which it is located; and
4. The scientific and economic practicality of reducing or eliminating the discharge resulting from such activity.
F. The Board may
designate one of its members, the Director, or a staff assistant to conduct
the hearings provided for in this chapter. A record of the hearing shall be
made and furnished to the Board for its use in arriving at its decision.
G. The Board shall submit an annual
report to the Governor and General Assembly on or before October 1 of each year
on matters relating to the Commonwealth's air pollution control policies and on
the status of the Commonwealth's air quality.
G. The Director shall issue, reissue, revoke, terminate, modify, amend, and enforce any permits, licenses, and certificates, including variances and exemptions thereto, authorized by the provisions of this chapter. The Director shall adopt and issue any general permit or general permit regulation.
§ 10.1-1307.01. Localities particularly affected.
After June 30, 1994, before promulgatingthe
Board adopts any regulation under consideration, granting or the Director
grants any variance to an existing regulation, or issuingissues
any permit for the construction of a new major source or for a major
modification to an existing source, if the Board or Director finds
that there are localities particularly affected by the regulation, variance or
permit, the Board or Director shall:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least thirty days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed action, which at a minimum shall provide information regarding specific pollutants and the total quantity of each which may be emitted and shall list the type and quantity of any fuels to be used.
2. Mail the notice to the chief elected official and chief administrative officer and the planning district commission for those localities.
Written comments shall be accepted by the Board or Director for at least fifteen days after any hearing on the regulation, variance, or permit, unless the Board votes or the Director determines to shorten the period.
For the purposes of this section, the term "locality particularly affected" means any locality which bears any identified disproportionate material air quality impact which would not be experienced by other localities.
§ 10.1-1307.2. Powers and duties of the Executive Director.
A. The Executive Director, under the direction and control of the Governor, shall exercise such powers and perform such duties as are conferred or imposed upon him by the law and shall perform such other duties required of him by the Governor and the Board.
B. The Executive Director may be vested with the authority of the Board when it is not in session, subject to such regulations or delegation as may be prescribed by the Board.
In no event shall the Executive Director have the
authority to adopt or promulgate any regulation.
C. In addition to the powers designated elsewhere in this chapter, the Director shall have the following general powers:
1. Supervise and manage the Department;
2. Prepare and submit all requests for appropriations and be responsible for all expenditures pursuant to appropriations;
3. Provide investigative and such other services as needed by the Department to enforce applicable laws and regulations;
4. Provide for the administrative functions and services of the Department;
5. Provide such office facilities as will allow the Department to carry out its duties; and
6. Assist the citizens (including corporate citizens) of the Commonwealth by providing guidelines, time tables, suggestions and in general being helpful to applicants seeking state and federal air pollution control permits.
§ 10.1-1307.3. Director to enforce laws.
A. The Executive Director or his duly authorized representative shall have the authority to:
1. Supervise, administer, and enforce the provisions of this
chapter and regulations and orders of the Board as are conferred upon him
by the Boardadopted hereunder;
2. Investigate any violations of this chapter and regulations and orders of the Board;
3. Require that air pollution records and reports be made
available upon request, and require owners to develop, maintain, and make
available such other records and information as are deemed necessary for the
proper enforcement of this chapter and regulations and orders
of the Board;
4. Upon presenting appropriate credentials to the owner, operator, or agent in charge:
a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in this Commonwealth; and
b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the Director or his representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the Director shall have the power to seek from a court having equity jurisdiction an order compelling such entry or inspection; and
5. Temporarily suspend the enforcement of any regulation or permit requirement applicable to any part of an electrical generation and transmission system, whether owned or contracted for, when a public electric utility providing power within the Commonwealth so requests and has suffered a force majeure event as defined in subdivision 7 of § 59.1-21.18:2.
B. The Executive Director or his duly authorized representative may pursue enforcement action for a violation of opacity requirements or limits based on (i) visual observations conducted pursuant to methods approved by the U.S. Environmental Protection Agency, (ii) data from certified continuous opacity monitors, or (iii) other methods approved by the U.S. Environmental Protection Agency.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board Director shall have the power to issue special orders to:
(i) owners who are permitting or causing air pollution as defined by § 10.1-1300, to cease and desist from such pollution;
(ii) owners who have failed to construct facilities in
accordance with or have failed to comply with plans for the control of air
pollution submitted by them to and approved by the BoardDirector,
to construct such facilities in accordance with or otherwise comply with, such
approved plans;
(iii) owners who have violated or failed to comply with the
terms and provisions of any Board
order or directive to comply with such terms and provisions;
(iv) owners who have contravened duly adopted and promulgated air quality standards and policies, to cease such contravention and to comply with air quality standards and policies;
(v) require any owner to comply with the provisions of this
chapter and any Board decision;
and
(vi) require any person to pay civil penalties of up to
$32,500 for each violation, not to exceed $100,000 per order, if (a) the person
has been issued at least two written notices of alleged violation by the
Department for the same or substantially related violations at the same site,
(b) such violations have not been resolved by demonstration that there was no
violation, by an order issued by the Board or the Director,
or by other means, (c) at least 130 days have passed since the issuance of the
first notice of alleged violation, and (d) there is a finding that such
violations have occurred after a hearing conducted in accordance with
subsection B. The actual amount of any penalty assessed shall be based upon the
severity of the violations, the extent of any potential or actual environmental
harm, the compliance history of the facility or person, any economic benefit
realized from the noncompliance, and the ability of the person to pay the
penalty. The BoardDirector
shall provide the person with the calculation for the proposed penalty prior to
any hearing conducted for the issuance of an order that assesses penalties
pursuant to this subsection. Penalties shall be paid to the state treasury and
deposited by the State Treasurer into the Virginia Environmental Emergency
Response Fund (§ 10.1-2500 et seq.). The issuance of a notice of alleged
violation by the Department shall not be considered a case decision as defined
in § 2.2-4001. Any notice of alleged violation shall include a description of
each violation, the specific provision of law violated, and information on the
process for obtaining a final decision or fact finding from the Department on
whether or not a violation has occurred, and nothing in this section shall
preclude an owner from seeking such a determination.
B. Such special orders are to be issued only after a hearing
before a hearing officer appointed by the Supreme Court in accordance with §
2.2-4020 with reasonable notice to the affected owners of the time, place and
purpose thereof, and they shall become effective not less than five days after
service as provided in subsection C below. Should the BoardDirector
find that any such owner is unreasonably affecting the public health, safety or
welfare, or the health of animal or plant life, or property, after a reasonable
attempt to give notice, ithe
shall declare a state of emergency and may issue without hearing an emergency
special order directing the owner to cease such pollution immediately, and
shall within 10 days hold a hearing, after reasonable notice as to the time and
place thereof to the owner, to affirm, modify, amend or cancel such emergency
special order. If the BoardDirector
finds that an owner who has been issued a special order or an emergency special
order is not complying with the terms thereof, ithe
may proceed in accordance with § 10.1-1316 or 10.1-1320.
C. Any special order issued under the provisions of this
section need not be filed with the Secretary of the Commonwealth, but the owner
to whom such special order is directed shall be notified by certified mail,
return receipt requested, sent to the last known address of such owner, or by
personal delivery by an agent of the BoardDirector,
and the time limits specified shall be counted from the date of receipt.
D. Nothing in this section or in § 10.1-1307 shall limit the Board'sDirector's
authority to proceed against such owner directly under § 10.1-1316 or 10.1-1320
without the prior issuance of an order, special or otherwise.
§ 10.1-1309.1. Special orders; penalties.
The BoardDirector
is authorized to issue special orders in compliance with the Administrative
Process Act (§ 2.2-4000 et seq.) requiring that an owner file with the BoardDirector
a plan to abate, control, prevent, remove, or contain any substantial and
imminent threat to public health or the environment that is reasonably likely
to occur if such source ceases operations. Such plan shall also include a
demonstration of financial capability to implement the plan. Financial
capability may be demonstrated by the establishment of an escrow account, the
creation of a trust fund to be maintained within the Department, submission of
a bond, corporate guarantee based on audited financial statements, or such
other instruments as the BoardDirector
may deem appropriate. The BoardDirector
may require that such plan and instruments be updated as appropriate. The BoardDirector
shall give due consideration to any plan submitted by the owner in accordance
with §§ 10.1-1410, 10.1-1428, and 62.1-44.15:1.1, in determining the necessity
for and suitability of any plan submitted under this section.
For the purposes of this section, "ceases operation" means to cease conducting the normal operation of a source which is regulated under this chapter under circumstances where it would be reasonable to expect that such operation will not be resumed by the owner at the source. The term shall not include the sale or transfer of a source in the ordinary course of business or a permit transfer in accordance with Board regulations.
Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be liable to the Commonwealth and any political subdivision thereof for the costs incurred in abating, controlling, preventing, removing, or containing such harm or threat.
Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be guilty of a Class 4 felony.
§ 10.1-1310. Decision of Director pursuant to hearing.
Any decision by the BoardDirector
rendered pursuant to hearings under § 10.1-1309 shall be reduced to writing and
shall contain the explicit findings of fact and conclusions of law upon which
the Board'sDirector's
decision is based. Certified copies of the written decision shall be delivered
or mailed by certified mail to the parties affected by it. Failure to comply
with the provisions of this section shall render such decision invalid.
§ 10.1-1310.1. Notification of local government.
Upon determining that there has been a violation of this
chapter or any regulation promulgated under this chapter
or order of the Board adopted
hereunder, and such violation poses an imminent threat to the
health, safety or welfare of the public, the Director shall immediately notify
the chief administrative officer of any potentially affected local government.
Neither the Director, the Commonwealth, nor any employee of the Commonwealth
shall be liable for a failure to provide, or a delay in providing, the
notification required by this section.
§ 10.1-1311. Penalties for noncompliance; judicial review.
A. The Board is authorized to promulgate regulations providing for the determination of a formula for the basis of the amount of any noncompliance penalty to be assessed by a court pursuant to subsection B hereof, in conformance with the requirements of Section 120 of the federal Clean Air Act, as amended, and any regulations promulgated thereunder. Any regulations promulgated pursuant to this section shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
B. Upon a determination of the amount bybased
upon the regulations adopted by the Board, the BoardDirector
shall petition the circuit court of the county or city wherein the owner
subject to such noncompliance assessment resides, regularly or systematically
conducts affairs or business activities, or where such owner's property
affected by the administrative action is located for an order requiring payment
of a noncompliance penalty in a sum the court deems appropriate.
C. Any order issued by a court pursuant to this section may be enforced as a judgment of the court. All sums collected, less the assessment and collection costs, shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.) of this title.
D. Any penalty assessed under this section shall be in addition to permits, fees, orders, payments, sanctions, or other requirements under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under other provisions of this chapter.
§ 10.1-1314. Owners to furnish plans, specifications and information.
Every owner which the BoardDirector
has reason to believe is causing, or may be about to cause, an air pollution
problem shall on request of the BoardDirector
furnish such plans, specifications and information as may be required by the BoardDirector
in the discharge of its duties under this chapter. Any information, except
emission data, as to secret processes, formulae or methods of manufacture or
production shall not be disclosed in public hearing and shall be kept
confidential. If samples are taken for analysis, a duplicate of the analytical
report shall be furnished promptly to the person from whom such sample is
requested.
§ 10.1-1314.1. Protection of trade secrets.
Any information, except emissions data, reported to or
otherwise obtained by the Director, the Board, or the agents or employees of
either which contains or might reveal a trade secret shall be confidential and
shall be limited to those persons who need such information for purposes of
enforcement of this chapter or the federal Clean Air Act or regulations and
orders of the Board hereunder.
It shall be the duty of each owner to notify the Director or his representatives
of the existence of trade secrets when he desires the protection provided
herein.
§ 10.1-1315. Right of entry.
Whenever it is necessary for the purposes of this chapter, the
BoardDepartment
or any member, agent or employee thereof, when duly authorized by the BoardDirector,
may at reasonable times enter any establishment or upon any property, public or
private, to obtain information or conduct surveys or investigations.
§ 10.1-1316. Enforcement and civil penalties.
A. Any owner violating or failing, neglecting or refusing to
obey any provision of this chapter, any Board regulation
or order hereunder, or any permit condition
may be compelled to comply by injunction, mandamus or other appropriate remedy.
B. Without limiting the remedies which may be obtained under
subsection A, any owner violating or failing, neglecting or refusing to obey
any Board regulation or order hereunder, any provision of this chapter, or any permit condition
shall be subject, in the discretion of the court, to a civil penalty not to
exceed $32,500 for each violation. Each day of violation shall constitute a
separate offense. In determining the amount of any civil penalty to be assessed
pursuant to this subsection, the court shall consider, in addition to such
other factors as it may deem appropriate, the size of the owner's business, the
severity of the economic impact of the penalty on the business, and the
seriousness of the violation. Such civil penalties shall be paid into the state
treasury and deposited by the State Treasurer into the Virginia Environmental
Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.) of this
title. Such civil penalties may, in the discretion of the court assessing them,
be directed to be paid into the treasury of the county, city or town in which
the violation occurred, to be used to abate environmental pollution in such
manner as the court may, by order, direct, except that where the owner in
violation is the county, city or town itself, or its agent, the court shall
direct the penalty to be paid into the state treasury and deposited by the
State Treasurer into the Virginia Environmental Emergency Response Fund
pursuant to Chapter 25 of this title.
C. With the consent of an owner who has violated or failed,
neglected or refused to obey any Board regulation
or order, or any provision
of this chapter, any regulation or order adopted or issued
hereunder, or any permit condition, the BoardDirector
may provide, in any order issued by the BoardDirector
against the owner, for the payment of civil charges in specific sums, not to
exceed the limit of subsection B. Such civil charges shall be in lieu of any
civil penalty which could be imposed under subsection B. Such civil charges
shall be paid into the state treasury and deposited by the State Treasurer into
the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of
this title.
D. The BoardDirector
shall develop and provide an opportunity for public comment on guidelines and
procedures that contain specific criteria for calculating the appropriate
penalty for each violation based upon the severity of the violations, the
extent of any potential or actual environmental harm, the compliance history of
the facility or person, any economic benefit realized from the noncompliance,
and the ability of the person to pay the penalty.
§ 10.1-1318. Appeal from decision of Director.
A. Any owner aggrieved by a final decision of the BoardDirector
under § 10.1-1309, § 10.1-1322 or subsection D of § 10.1-1307 is entitled to
judicial review thereof in accordance with the provisions of the Administrative
Process Act (§ 2.2-4000 et seq.).
B. Any person who has participated, in person or by submittal
of written comments, in the public comment process related to a final decision
of the BoardDirector
under § 10.1-1322 and who has exhausted all available administrative remedies
for review of the Board'sDirector's
decision, shall be entitled to judicial review of the Board'sDirector's
decision in accordance with the provisions of the Administrative Process Act (§
2.2-4000 et seq.) if such person meets the standard for obtaining judicial
review of a case or controversy pursuant to Article III of the United States
Constitution. A person shall be deemed to meet such standard if (i) such person
has suffered an actual or imminent injury which is an invasion of a legally
protected interest and which is concrete and particularized; (ii) such injury
is fairly traceable to the decision of the BoardDirector
and not the result of the independent action of some third party not before the
court; and (iii) such injury will likely be redressed by a favorable decision
by the court.
§ 10.1-1320. Penalties; chapter not to affect right to relief or to maintain action.
Any owner knowingly violating any provision of this chapter, Board
any regulation or order hereunder, or any permit condition shall upon conviction be guilty
of a misdemeanor and shall be subject to a fine of not more than $10,000 for
each violation within the discretion of the court. Each day of violation shall
constitute a separate offense.
Nothing in this chapter shall be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on account of injury to persons or property.
§ 10.1-1320.1. Duty of attorney for the Commonwealth.
It shall be the duty of every attorney for the Commonwealth to
whom the Director or his authorized representative has reported any violation
of this chapter or any regulation or order of the Board,
to cause proceedings to be prosecuted without delay for the fines and penalties
in such cases.
§ 10.1-1322. Permits.
A. Pursuant to regulations adopted by the Board,
permits mayPermits authorized under this chapter shall
be issued, amended, revoked or terminated and reissued by the DepartmentDirector
and may be enforced under the provisions of this chapter in the same manner as
regulations and orders. Failure to comply with any condition of a permit shall
be considered a violation of this chapter and investigations and enforcement
actions may be pursued in the same manner as is done with regulations and
orders of the Board under the provisions of
this chapter.
B. The Board by regulation may prescribe and provide for the
payment and collection of annual permit program fees for air pollution sources.
Annual permit program fees shall not be collected until (i) the federal
Environmental Protection Agency approves the Board's BoardDirector
shall also collect permit application fee amounts not to exceed $30,000 from
applicants for a permit for a new major stationary source. The permit
application fee amount paid shall be credited towards the amount of annual fees
owed pursuant to this section during the first two years of the source's
operation. The fees shall be exempt from statewide indirect costs charged and
collected by the Department of Accounts.
C. When adopting regulations for permit program fees for air pollution sources, the Board shall take into account the permit fees charged in neighboring states and the importance of not placing existing or prospective industry in the Commonwealth at a competitive disadvantage.
D. On or before January 1 of every even-numbered year, the Department shall make an evaluation of the implementation of the permit fee program and provide this evaluation in writing to the Senate Committee on Agriculture, Conservation and Natural Resources, the Senate Committee on Finance, the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources, and the House Committee on Finance. This evaluation shall include a report on the total fees collected, the amount of general funds allocated to the Department, the Department's use of the fees and the general funds, the number of permit applications received, the number of permits issued, the progress in eliminating permit backlogs, and the timeliness of permit processing.
E. To the extent allowed by federal law and regulations, priority for utilization of permit fees shall be given to cover the costs of processing permit applications in order to more efficiently issue permits.
F. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Department.
G. The permit fees shall apply to permit programs in existence
on July 1, 1992, any additional permit programs that may be required by the
federal government and administered by the BoardDirector,
or any new permit program required by the Code of Virginia.
H. The permit program fee regulations promulgated pursuant to this section shall not become effective until July 1, 1993.
I. [Expired.]
§ 10.1-1322.4. Permit modifications for alternative fuels or raw materials.
Unless required by the federal government, no additional
permit or permit modifications shall be required by the Board,
for the use, by any source, of an alternative fuel or raw material, if the
owner demonstrates to the Board
that as a result of trial burns at their facility or other facilities or other
sufficient data that the emissions resulting from the use of the alternative
fuel or raw material supply are decreased.
§ 10.1-1400. Definitions.
As used in this chapter unless the context requires a different meaning:
"Applicant" means any and all persons seeking or holding a permit required under this chapter.
"Board" means the Virginia Waste Management Board.
"Composting" means the manipulation of the natural aerobic process of decomposition of organic materials to increase the rate of decomposition.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Disclosure statement" means a sworn statement or affirmation, in such form as may be required by the Director, which includes:
1. The full name, business address, and social security number of all key personnel;
2. The full name and business address of any entity, other than a natural person, that collects, transports, treats, stores, or disposes of solid waste or hazardous waste in which any key personnel holds an equity interest of five percent or more;
3. A description of the business experience of all key personnel listed in the disclosure statement;
4. A listing of all permits or licenses required for the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste issued to or held by any key personnel within the past 10 years;
5. A listing and explanation of any notices of violation, prosecutions, administrative orders (whether by consent or otherwise), license or permit suspensions or revocations, or enforcement actions of any sort by any state, federal or local authority, within the past 10 years, which are pending or have concluded with a finding of violation or entry of a consent agreement, regarding an allegation of civil or criminal violation of any law, regulation or requirement relating to the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste by any key personnel, and an itemized list of all convictions within 10 years of key personnel of any of the following crimes punishable as felonies under the laws of the Commonwealth or the equivalent thereof under the laws of any other jurisdiction: murder; kidnapping; gambling; robbery; bribery; extortion; criminal usury; arson; burglary; theft and related crimes; forgery and fraudulent practices; fraud in the offering, sale, or purchase of securities; alteration of motor vehicle identification numbers; unlawful manufacture, purchase, use or transfer of firearms; unlawful possession or use of destructive devices or explosives; violation of the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1; racketeering; or violation of antitrust laws;
6. A listing of all agencies outside the Commonwealth which have regulatory responsibility over the applicant or have issued any environmental permit or license to the applicant within the past 10 years, in connection with the applicant's collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste;
7. Any other information about the applicant and the key personnel that the Director may require that reasonably relates to the qualifications and ability of the key personnel or the applicant to lawfully and competently operate a solid waste management facility in Virginia; and
8. The full name and business address of any member of the local governing body or planning commission in which the solid waste management facility is located or proposed to be located, who holds an equity interest in the facility.
"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
"Equity" includes both legal and equitable interests.
"Federal acts" means any act of Congress providing for waste management and regulations promulgated thereunder.
"Hazardous material" means a substance or material in a form or quantity which may pose an unreasonable risk to health, safety or property when transported, and which the Secretary of Transportation of the United States has so designated by regulation or order.
"Hazardous substance" means a substance listed under United States Public Law 96-510, entitled the Comprehensive Environmental Response Compensation and Liability Act.
"Hazardous waste" means a solid waste or combination of solid waste which, because of its quantity, concentration or physical, chemical or infectious characteristics, may:
1. Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating illness; or
2. Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
"Hazardous waste generation" means the act or process of producing hazardous waste.
"Household hazardous waste" means any waste material derived from households (including single and multiple residences, hotels, motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas) which, except for the fact that it is derived from a household, would be classified as a hazardous waste, including but not limited to, nickel, cadmium, mercuric oxide, manganese, zinc-carbon or lead batteries; solvent-based paint, paint thinner, paint strippers, or other paint solvents; any product containing trichloroethylene, toxic art supplies, used motor oil and unusable gasoline or kerosene, fluorescent or high intensity light bulbs, ammunition, fireworks, banned pesticides, or restricted-use pesticides as defined in § 3.1-249.27. All empty household product containers and any household products in legal distribution, storage or use shall not be considered household hazardous waste.
"Key personnel" means the applicant itself and any person employed by the applicant in a managerial capacity, or empowered to make discretionary decisions, with respect to the solid waste or hazardous waste operations of the applicant in Virginia, but shall not include employees exclusively engaged in the physical or mechanical collection, transportation, treatment, storage, or disposal of solid or hazardous waste and such other employees as the Director may designate by regulation. If the applicant has not previously conducted solid waste or hazardous waste operations in Virginia, the term also includes any officer, director, partner of the applicant, or any holder of five percent or more of the equity or debt of the applicant. If any holder of five percent or more of the equity or debt of the applicant or of any key personnel is not a natural person, the term includes all key personnel of that entity, provided that where such entity is a chartered lending institution or a reporting company under the Federal Securities Exchange Act of 1934, the term does not include key personnel of such entity. Provided further that the term means the chief executive officer of any agency of the United States or of any agency or political subdivision of the Commonwealth, and all key personnel of any person, other than a natural person, that operates a landfill or other facility for the disposal, treatment or storage of nonhazardous solid waste under contract with or for one of those governmental entities.
"Manifest" means the form used for identifying the quantity, composition, origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment or storage of such hazardous waste.
"Mixed radioactive waste" means radioactive waste that contains a substance which renders the mixture a hazardous waste.
"Open dump" means a site on which any solid waste is placed, discharged, deposited, injected, dumped or spilled so as to create a nuisance or present a threat of a release of harmful substances into the environment or present a hazard to human health.
"Person" includes an individual, corporation, partnership, association, a governmental body, a municipal corporation or any other legal entity.
"Radioactive waste" or "nuclear waste" includes:
1. "Low-level radioactive waste" material that:
a. Is not high-level radioactive waste, spent nuclear fuel, transuranic waste, or by-product material as defined in section 11e (2) of the Atomic Energy Act of 1954 (42 U.S.C. § 2014 (e) (2)); and
b. The Nuclear Regulatory Commission, consistent with existing law, classifies as low-level radioactive waste; or
2. "High-level radioactive waste" which means:
a. The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and
b. Other highly radioactive material that the Nuclear Regulatory Commission, consistent with existing law, determines by rule requires permanent isolation.
"Recycling residue" means the (i) nonmetallic substances, including but not limited to plastic, rubber, and insulation, which remain after a shredder has separated for purposes of recycling the ferrous and nonferrous metal from a motor vehicle, appliance, or other discarded metallic item and (ii) organic waste remaining after removal of metals, glass, plastics and paper which are to be recycled as part of a resource recovery process for municipal solid waste resulting in the production of a refuse derived fuel.
"Resource conservation" means reduction of the amounts of solid waste that are generated, reduction of overall resource consumption and utilization of recovered resources.
"Resource recovery" means the recovery of material or energy from solid waste.
"Resource recovery system" means a solid waste management system which provides for collection, separation, recycling and recovery of solid wastes, including disposal of nonrecoverable waste residues.
"Sanitary landfill" means a disposal facility for solid waste so located, designed and operated that it does not pose a substantial present or potential hazard to human health or the environment, including pollution of air, land, surface water or ground water.
"Sludge" means any solid, semisolid or liquid wastes with similar characteristics and effects generated from a public, municipal, commercial or industrial wastewater treatment plant, water supply treatment plant, air pollution control facility or any other waste producing facility.
"Solid waste" means any garbage, refuse, sludge and
other discarded material, including solid, liquid, semisolid or contained
gaseous material, resulting from industrial, commercial, mining and agricultural
operations, or community activities but does not include (i) solid or dissolved
material in domestic sewage, (ii) solid or dissolved material in irrigation
return flows or in industrial discharges which are sources subject to a permit
from the State Water Control BoardDirector,
or (iii) source, special nuclear, or by-product material as defined by the
Federal Atomic Energy Act of 1954, as amended.
"Solid waste management facility" means a site used for planned treating, long term storage, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal units.
"Transport" or "transportation" means any movement of property and any packing, loading, unloading or storage incidental thereto.
"Treatment" means any method, technique or process, including incineration or neutralization, designed to change the physical, chemical or biological character or composition of any waste to neutralize it or to render it less hazardous or nonhazardous, safer for transport, amenable to recovery or storage or reduced in volume.
"Vegetative waste" means decomposable materials generated by yard and lawn care or land-clearing activities and includes, but is not limited to, leaves, grass trimmings, and woody wastes such as shrub and tree prunings, bark, limbs, roots, and stumps.
"Waste" means any solid, hazardous or radioactive waste as defined in this section.
"Waste management" means the collection, source separation, storage, transportation, transfer, processing, treatment and disposal of waste or resource recovery.
"Yard waste" means decomposable waste materials generated by yard and lawn care and includes leaves, grass trimmings, brush, wood chips, and shrub and tree trimmings. Yard waste shall not include roots or stumps that exceed six inches in diameter.
§ 10.1-1401. Virginia Waste Management Board continued.
A. The Virginia Waste Management Board is continued and
shall consist of seven Virginia residentsmembers
appointed by the Governor for terms of four years. Members
may be appointed to additional terms. The members of the Board shall be citizens of the Commonwealth and shall be selected from the Commonwealth at large
on the basis of merit without regard to political affiliation. Members
shall, by their education, training, or experience, be knowledgeable of waste
management and shall be fairly representative of agriculture,
conservation, industry, and
public health. Notwithstanding any other provision
of this section relating to Board membership, the qualifications for Board
membership shall not be more strict than those which may be required by federal
statute or regulations of the United States Environmental Protection Agency. Upon initial appointment, three members shall be appointed for four-year terms,
two for three-year terms, and two for two-year terms. Thereafter, all members
shall be appointed for terms of four years each. Vacancies
occurring other than by expiration of a term shall be filled by the Governor
for the unexpired portion of the term.
B. The Board shall adopt rules and procedures for the conduct of its business.
C. The Board shall elect a chairman from among its members.
D. A quorum shall consist of four members. The decision of a majority of those present and voting shall constitute a decision of the Board; however, a vote of the majority of the Board membership is required to constitute a final decision on certification of site approval. Meetings may be held at any time or place determined by the Board or upon call of the chairman or upon written request of any two members. All members shall be notified of the time and place of any meeting at least five days in advance of the meeting.
§ 10.1-1408.5. Special provisions regarding wetlands.
A. The Director shall not issue any solid waste permit for a new municipal solid waste landfill or the expansion of a municipal solid waste landfill that would be sited in a wetland, provided that this subsection shall not apply to subsection B or the (i) expansion of an existing municipal solid waste landfill located in the City of Danville or the City of Suffolk when the owner or operator of the landfill is an authority created pursuant to § 15.2-5102 that has applied for a permit under § 404 of the federal Clean Water Act prior to January 1, 1989, and the owner or operator has received a permit under § 404 of the federal Clean Water Act and the Virginia Water Resources and Wetlands Protection Program, Article 2.2 (§ 62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1, or (ii) construction of a new municipal solid waste landfill in Mecklenburg County and provided that the municipal solid waste landfills covered under clauses (i) and (ii) have complied with all other applicable federal and state environmental laws and regulations. It is expressly understood that while the provisions of this section provide an exemption to the general siting prohibition contained herein; it is not the intent in so doing to express an opinion on whether or not the project should receive the necessary environmental and regulatory permits to proceed. For the purposes of this section, the term "expansion of a municipal solid waste landfill" shall include the siting and construction of new cells or the expansion of existing cells at the same location.
B. The Director may issue a solid waste permit for the
expansion of a municipal solid waste landfill located in a wetland only if the
following conditions are met: (i) the proposed landfill site is at least 100
feet from any surface water body and at least one mile from any tidal wetland;
(ii) the Director determines, based upon the existing condition of the wetland
system, including, but not limited to, sedimentation, toxicity, acidification,
nitrification, vegetation, and proximity to existing permitted waste disposal
areas, roads or other structures, that the construction or restoration of a
wetland system in another location in accordance with a Virginia Water
Protection Permit approved by the State Water Control Board
would provide higher quality wetlands; and (iii) the permit requires a minimum
two-to-one wetlands mitigation ratio. This subsection shall not apply to the
exemptions provided in clauses (i) and (ii) of subsection A.
C. Ground water monitoring shall be conducted at least quarterly by the owner or operator of any existing solid waste management landfill, accepting municipal solid waste, that was constructed on a wetland, has a potential hydrologic connection to such a wetland in the event of an escape of liquids from the facility, or is within a mile of such a wetland, unless the Director determines that less frequent monitoring is necessary. This provision shall not limit the authority of the Board or the Director to require that monitoring be conducted more frequently than quarterly. If the landfill is one that accepts only ash, ground water monitoring shall be conducted semiannually, unless more frequent monitoring is required by the Board or the Director. All results shall be reported to the Department.
D. This section shall not apply to landfills which impact less than two acres of nontidal wetlands.
E. For purposes of this section, "wetland" means any tidal wetland or nontidal wetland contiguous to any tidal wetland or surface water body.
F. There shall be no additional exemptions granted from this section unless (i) the proponent has submitted to the Department an assessment of the potential impact to wetlands, the need for the exemption, and the alternatives considered and (ii) the Department has made the information available for public review for at least 60 days prior to the first day of the next Regular Session of the General Assembly.
§ 10.1-1455. Penalties and enforcement.
A. Any person who violates any provision of this chapter, any
condition of a permit or certification, or any regulation or order of
the Board adopted hereunder shall, upon such
finding by an appropriate circuit court, be assessed a civil penalty of not
more than $32,500 for each day of such violation. All civil penalties under
this section shall be recovered in a civil action brought by the Attorney
General in the name of the Commonwealth. Such civil penalties shall be paid
into the state treasury and deposited by the State Treasurer into the Virginia
Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et
seq.) of this title.
B. In addition to the penalties provided above, any person who knowingly transports any hazardous waste to an unpermitted facility; who knowingly transports, treats, stores, or disposes of hazardous waste without a permit or in violation of a permit; or who knowingly makes any false statement or representation in any application, disclosure statement, label, manifest, record, report, permit, or other document filed, maintained, or used for purposes of hazardous waste program compliance shall be guilty of a felony punishable by a term of imprisonment of not less than one year nor more than five years and a fine of not more than $32,500 for each violation, either or both. The provisions of this subsection shall be deemed to constitute a lesser included offense of the violation set forth under subsection I.
Each day of violation of each requirement shall constitute a separate offense.
C. The BoardDirector
is authorized to issue orders to require any person to comply with the
provisions of any law administered by the Board, the Director or the
Department, any condition of a permit or certification, or any regulations
promulgated by the Board or to comply with any case decision, as defined in §
2.2-4001, of the Board or Director. Any such order
shall be issued only after a hearing in accordance with § 2.2-4020 with at
least 30 days' notice to the affected person of the time, place and purpose
thereof. Such order shall become effective not less than 15 days after mailing
a copy thereof by certified mail to the last known address of such person. The
provisions of this section shall not affect the authority of the Board to issue
separate orders and regulations to meet any emergency as provided in §
10.1-1402.
D. Any person willfully violating or refusing, failing or
neglecting to comply with any regulation or order of
the Board or , order
of the Director, any condition of a permit or certification or any
provision of this chapter shall be guilty of a Class 1 misdemeanor unless a
different penalty is specified.
Any person violating or failing, neglecting, or refusing to
obey any lawful regulation or order of the Board or order
of the Director, any condition of a permit or certification or any
provision of this chapter may be compelled in a proceeding instituted in an
appropriate court by the Board or the Director to obey such regulation, permit,
certification, order or provision of this chapter and to comply therewith by
injunction, mandamus, or other appropriate remedy.
E. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $32,500 for each violation. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of this title. Each day of violation of each requirement shall constitute a separate offense. Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city or town in which the violation occurred, to be used to abate environmental pollution in such manner as the court may, by order, direct, except that where the owner in violation is the county, city or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of this title.
F. With the consent of any person who has violated or failed,
neglected or refused to obey any regulation or order
of the Board or order of the
Director adopted or issued hereunder, any condition
of a permit or any provision of this chapter, the BoardDirector
may provide, in an order issued by the BoardDirector
against such person, for the payment of civil charges for past violations in
specific sums, not to exceed the limits specified in this section. Such civil
charges shall be instead of any appropriate civil penalty which could be
imposed under this section. Such civil charges shall be paid into the state
treasury and deposited by the State Treasurer into the Virginia Environmental
Emergency Response Fund pursuant to Chapter 25 of this title.
G. In addition to all other available remedies, the BoardDirector
may issue administrative orders for the violation of (i) any law or regulation
administered by the BoardDirector;
(ii) any condition of a permit or certificate issued pursuant to this chapter;
or (iii) any case decision or order of the BoardDirector.
Issuance of an administrative order shall be a case decision as defined in §
2.2-4001 and shall be issued only after a hearing before a hearing officer
appointed by the Supreme Court in accordance with § 2.2-4020. Orders issued
pursuant to this subsection may include civil penalties of up to $32,500 per
violation not to exceed $100,000 per order, and may compel the taking of
corrective actions or the cessation of any activity upon which the order is
based. The BoardDirector
may assess penalties under this subsection if (a) the person has been issued at
least two written notices of alleged violation by the Department for the same
or substantially related violations at the same site, (b) such violations have
not been resolved by demonstration that there was no violation, by an order
issued by the Board or the Director, or by other
means, (c) at least 130 days have passed since the issuance of the first notice
of alleged violation, and (d) there is a finding that such violations have
occurred after a hearing conducted in accordance with this subsection. The
actual amount of any penalty assessed shall be based upon the severity of the
violations, the extent of any potential or actual environmental harm, the
compliance history of the facility or person, any economic benefit realized
from the noncompliance, and the ability of the person to pay the penalty. The BoardDirector
shall provide the person with the calculation for the proposed penalty prior to
any hearing conducted for the issuance of an order that assesses penalties
pursuant to this subsection. Penalties shall be paid to the state treasury and
deposited by the State Treasurer into the Virginia Environmental Emergency
Response Fund (§ 10.1-2500 et seq.). The issuance of a notice of alleged
violation by the Department shall not be considered a case decision as defined
in § 2.2-4001. Any notice of alleged violation shall include a description of
each violation, the specific provision of law violated, and information on the
process for obtaining a final decision or fact finding from the Department on
whether or not a violation has occurred, and nothing in this section shall
preclude an owner from seeking such a determination. Orders issued pursuant to
this subsection shall become effective five days after having been delivered to
the affected persons or mailed by certified mail to the last known address of
such persons. Should the BoardDirector
find that any person is adversely affecting the public health, safety or
welfare, or the environment, the BoardDirector
shall, after a reasonable attempt to give notice, issue, without a hearing, an
emergency administrative order directing the person to cease the activity
immediately and undertake any needed corrective action, and shall within 10
days hold a hearing, after reasonable notice as to the time and place thereof
to the person, to affirm, modify, amend or cancel the emergency administrative
order. If the BoardDirector
finds that a person who has been issued an administrative order or an emergency
administrative order is not complying with the order's terms, the BoardDirector
may utilize the enforcement and penalty provisions of this article to secure compliance.
H. In addition to all other available remedies, the Department and generators of recycling residues shall have standing to seek enforcement by injunction of conditions which are specified by applicants in order to receive the priority treatment of their permit applications pursuant to § 10.1-1408.1.
I. Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste in violation of this chapter or in violation of the regulations promulgated by the Board and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be guilty of a felony punishable by a term of imprisonment of not less than two years nor more than 15 years and a fine of not more than $250,000, either or both. A defendant that is not an individual shall, upon conviction of violating this section, be subject to a fine not exceeding the greater of $1 million or an amount that is three times the economic benefit realized by the defendant as a result of the offense. The maximum penalty shall be doubled with respect to both fine and imprisonment for any subsequent conviction of the same person.
J. Criminal prosecutions under this chapter shall be commenced within three years after discovery of the offense, notwithstanding the provisions of any other statute.
K. The BoardDepartment
shall be entitled to an award of reasonable attorneys' fees and costs in any
action brought by the BoardDirector
under this section in which it substantially prevails on the merits of the
case, unless special circumstances would make an award unjust.
L. The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.
§ 10.1-2113. Effect on other governmental authority.
The authorities granted herein are supplemental to other
state, regional and local governmental authority. No authority granted to a
local government by this chapter shall affect in any way the authority of the State
Water Control BoardDirector of the
Department of Environmental Quality to regulate industrial or
sewage discharges under Articles 3 (§ 62.1-44.16 et seq.) and 4 (§ 62.1-44.18
et seq.) of the State Water Control Law (§ 62.1-44.2 et seq.). No authority
granted to a local government by this chapter shall limit in any way any other
planning, zoning, or subdivision authority of that local government.
§ 10.1-2131. Point source pollution funding; conditions for approval.
A. The Department of Environmental Quality shall be the lead state agency for determining the appropriateness of any grant related to point source pollution to be made from the Fund to restore, protect or improve state water quality.
B. The Director of the Department of Environmental Quality shall, subject to available funds and in coordination with the Director of the Department of Conservation and Recreation, direct the State Treasurer to make Water Quality Improvement Grants in accordance with the guidelines established pursuant to § 10.1-2129. The Director of the Department of Environmental Quality shall enter into grant agreements with all facilities designated as significant dischargers or eligible nonsignificant dischargers that apply for grants; however, all such grant agreements shall contain provisions that payments thereunder are subject to the availability of funds.
C. Notwithstanding the priority provisions of § 10.1-2129, the
Director of the Department of Environmental Quality shall not authorize the
distribution of grants from the Fund for purposes other than financing the cost
of design and installation of nutrient removal technology at publicly owned
treatment works until such time as all tributary strategy plans are developed and
implemented unless he finds that there exists in the Fund sufficient funds for
substantial and continuing progress in implementation of the tributary strategy
plans. In addition to the provisions of § 10.1-2130, all grant agreements
related to nutrients shall include: (i) numerical technology-based effluent
concentration limitations on nutrient discharges to state waters based upon the
technology installed by the facility; (ii) enforceable provisions related to
the maintenance of the numerical concentrations that will allow for exceedences
of 0.8 mg/L for total nitrogen or no more than 10 percent, whichever is
greater, for exceedences of 0.1 mg/L for total phosphorus or no more than 10%,
and for exceedences caused by extraordinary conditions; and (iii) recognition
of the authority of the Commonwealth to make the Virginia Water Facilities
Revolving Fund (§ 62.1-224 et seq.) available to local governments to fund
their share of the cost of designing and installing nutrient removal technology
based on financial need and subject to availability of revolving loan funds,
priority ranking and revolving loan distribution criteria. If, pursuant to §
10.1-1187.6, the State Water Control Board Director
of the Department of
Environmental Quality approves an alternative compliance method to
technology-based concentration limitations in Virginia Pollutant Discharge
Elimination System permits, the concentration limitations of the grant
agreement shall be suspended subject to the terms of such approval. The cost of
the design and installation of nutrient removal technology at publicly owned
treatment works meeting the nutrient reduction goal in an applicable tributary
strategy plan or an applicable regulatory requirement and incurred prior to the
execution of a grant agreement is eligible for reimbursement from the Fund
provided the grant is made pursuant to an executed agreement consistent with
the provisions of this chapter.
Subsequent to the implementation of the tributary strategy plans, the Director may authorize disbursements from the Fund for any water quality restoration, protection and improvements related to point source pollution that are clearly demonstrated as likely to achieve measurable and specific water quality improvements, including, but not limited to, cost effective technologies to reduce nutrient loads. Notwithstanding the previous provisions of this subsection, the Director may, at any time, authorize grants, including grants to institutions of higher education, for technical assistance related to nutrient reduction.
D. The grant percentage provided for financing the costs of the design and installation of nutrient removal technology at publicly owned treatment works shall be based upon the financial need of the community as determined by comparing the annual sewer charges expended within the service area to the reasonable sewer cost established for the community.
E. Grants shall be awarded in the following manner:
1. In communities for which the ratio of annual sewer charges to reasonable sewer cost is less than 0.30, the Director of the Department of Environmental Quality shall authorize grants in the amount of 35 percent of the costs of the design and installation of nutrient removal technology;
2. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.30 and less than 0.50, the Director shall authorize grants in the amount of 45 percent of the costs of the design and installation of nutrient removal technology;
3. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.50 and less than 0.80, the Director shall authorize grants in the amount of 60 percent of the costs of design and installation of nutrient removal technology; and
4. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.80, the Director shall authorize grants in the amount of 75 percent of the costs of the design and installation of nutrient removal technology.
§ 15.2-924. Water supply emergency ordinances.
A. Whenever the governing body of any locality finds that a water supply emergency exists or is reasonably likely to occur if water conservation measures are not taken, it may adopt an ordinance restricting the use of water by the citizens of such locality for the duration of such emergency or for a period of time necessary to prevent the occurrence of a water supply emergency. However, such ordinance shall apply only to water supplied by a locality, authority, or company distributing water for a fee or charge. Such ordinance may include appropriate penalties designed to prevent excessive use of water, including, but not limited to, a surcharge on excessive amounts used.
B. After such an emergency has been declared in any locality,
any owner of a water supply system serving that locality may apply to the State
Water Control BoardDirector of the
Department of Environmental Quality for assistance. If the State
Water Control BoardDirector of the
Department of Environmental Quality confirms the existence of an
emergency, and finds that such owner and such locality have exhausted available
means to relieve the emergency and that the owner and locality are applying all
feasible water conservation measures, and in addition finds that there is water
available in neighboring localities in excess of the reasonable needs of such
localities, and that there exists between such neighboring localities
interconnections for the transmission of water, the Board Director
shall so inform the Governor. The Governor, if requested jointly
by the locality and the owner of the systems supplying the locality, may then
appoint a committee consisting of one representative of the locality declaring
the emergency, one representative of the system supplying the locality under
emergency, and those two representatives shall choose a third representative
and failing to choose such third representative within seven days he shall be
selected by the Governor. The committee shall have the duty and authority to
allocate the water available in such localities for the period of the
emergency, provided that the period of the emergency shall not exceed that
determined by the locality declaring the emergency or the State Water
Control BoardDirector of the Department of Environmental Quality
whichever period termination is earlier, so that the best water supply possible
will be provided to all water users during the emergency as previously
described. Nothing in this section shall be construed as requiring the
construction of pipeline interconnections between any locality or any water
supply system.
C. Any water taken from one water supplier for the benefit of another shall be paid for by using the established rate schedule of the supplier for treated water. Raw water shall be furnished at rates which shall reflect all costs to the supplying locality, including, but not limited to, capital investment costs. Should there be imposed upon the supplier any additional obligation, water production costs or other capital or operating expenditures beyond those normal to the suppliers' system, then the cost of same shall be chargeable to the receiving locality by single payment or by incorporation in a special rate structure, all of the same as shall be reasonable.
D. Nothing contained in this section shall authorize any locality to regulate the use of water taken from a river or any flowing stream when such water is used for industrial purposes and the approximate same quantity of water is returned to such river or stream after such industrial usage.
§ 15.2-5101. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Authority" means an authority created under the provisions of § 15.2-5102 or Article 6 (§ 15.2-5152 et seq.) of this chapter or, if any such authority has been abolished, the entity succeeding to the principal functions thereof.
"Bonds" and "revenue bonds" include notes, bonds, bond anticipation notes, and other obligations of an authority for the payment of money.
"Cost," as applied to a stormwater control system or a water or waste system, includes the purchase price of the system or the cost of acquiring all of the capital stock of the corporation owning such system and the amount to be paid to discharge all of its obligations in order to vest title to the system or any part thereof in the authority; the cost of improvements; the cost of all land, properties, rights, easements, franchises and permits acquired; the cost of all labor, machinery and equipment; financing and credit enhancement charges; interest prior to and during construction and for one year after completion of construction; any deposit to any bond interest and principal reserve account, start-up costs and reserves and expenditures for operating capital; cost of engineering and legal services, plans, specifications, surveys, estimates of costs and revenues; other expenses necessary or incident to the determining of the feasibility or practicability of any such acquisition, improvement, or construction; administrative expenses and such other expenses as may be necessary or incident to the financing authorized in this chapter and to the acquisition, improvement, or construction of any such system and the placing of the system in operation by the authority. Any obligation or expense incurred by an authority in connection with any of the foregoing items of cost and any obligation or expense incurred by the authority prior to the issuance of revenue bonds under the provisions of this chapter for engineering studies, for estimates of cost and revenues, and for other technical or professional services which may be utilized in the acquisition, improvement or construction of such system is a part of the cost of such system.
"Cost of improvements" means the cost of constructing improvements and includes the cost of all labor and material; the cost of all land, property, rights, easements, franchises, and permits acquired which are deemed necessary for such construction; interest during any period of disuse during such construction; the cost of all machinery and equipment; financing charges; cost of engineering and legal expenses, plans, specifications; and such other expenses as may be necessary or incident to such construction.
"Federal agency" means the United States of America or any department, agency, instrumentality, or bureau thereof.
"Improvements" means such repairs, replacements, additions, extensions and betterments of and to a stormwater control system or a water or waste system as an authority deems necessary to place or maintain the system in proper condition for the safe, efficient and economical operation thereof or to provide service in areas not currently receiving such service.
"Owner" includes persons, federal agencies, and units of the Commonwealth having any title or interest in any stormwater control system or a water or waste system, or the services or facilities to be rendered thereby.
"Political subdivision" means a locality or any institution or commission of the Commonwealth of Virginia.
"Refuse" means solid waste, including sludge and
other discarded material, such as solid, liquid, semi-solid or contained
gaseous material resulting from industrial, commercial, mining, and
agricultural operations or from community activities or residences. "Refuse"
does not include (i) solid and dissolved materials in domestic sewage, (ii)
solid or dissolved material in irrigation return flows or in industrial
discharges which are sources subject to a permit from the State Water
Control BoardDepartment of Environmental Quality,
or (iii) source, special nuclear, or by-product material as defined by the
Federal Atomic Energy Act of 1954 (42 U.S.C. § 20011, et seq.), as amended.
"Refuse collection and disposal system" means a system, plant or facility designed to collect, manage, dispose of, or recover and use energy from refuse and the land, structures, vehicles and equipment for use in connection therewith.
"Sewage" means the water-carried wastes created in and carried, or to be carried, away from residences, hotels, schools, hospitals, industrial establishments, commercial establishments or any other private or public buildings, together with such surface or ground water and household and industrial wastes as may be present.
"Sewage disposal system" means any system, plant, disposal field, lagoon, pumping station, constructed drainage ditch or surface water intercepting ditch, incinerator, area devoted to sanitary landfills, or other works, installed for the purpose of treating, neutralizing, stabilizing or disposing of sewage, industrial waste or other wastes.
"Sewer system" or "sewage system" means pipelines or conduits, pumping stations, and force mains, and all other constructions, devices, and appliances appurtenant thereto, used for conducting sewage, industrial wastes or other wastes to a plant of ultimate disposal.
"Stormwater control system" means a structural system of any type that is designed to manage the runoff from land development projects or natural systems designated for such purposes, including, without limitation, retention basins, ponds, wetlands, sewers, conduits, pipelines, pumping and ventilating stations, and other plants, structures, and real and personal property used for support of the system.
"Unit" means any department, institution or commission of the Commonwealth; any public corporate instrumentality thereof; any district; or any locality.
"Water or waste system" means any water system, sewer system, sewage disposal system, or refuse collection and disposal system, or any combination of such systems. "Water system" means all plants, systems, facilities or properties used or useful or having the present capacity for future use in connection with the supply or distribution of water, or facilities incident thereto, and any integral part thereof, including water supply systems, water distribution systems, dams and facilities for the generation or transmission of hydroelectric power, reservoirs, wells, intakes, mains, laterals, pumping stations, standpipes, filtration plants, purification plants, hydrants, meters, valves and equipment, appurtenances, and all properties, rights, easements and franchises relating thereto and deemed necessary or convenient by the authority for the operation thereof but not including dams or facilities for the generation or transmission of hydroelectric power that are not incident to plants, systems, facilities or properties used or useful or having the present capacity for future use in connection with the supply or distribution of water.
§ 21-122.1. Bonds for special purpose; no election required.
The governing body of any county in which a sanitary district has been or may be created by general or special law shall have the power to issue bonds to satisfy improvements to water or sewerage systems mandated by the State Water Control Board, pursuant to the Federal Water Pollution Control Act, as amended (P.L. 92-500).
The principal and interest on bonds issued under this section shall be paid by the governing body exclusively from revenues and receipts from the water or sewerage system which is to be improved.
For the purposes of this section, the term
"mandated" shall also mean any agreement between a governing body and
the State Water Control Board Director of the Department of
Environmental Quality to come into compliance with the
requirements of the State Water Control Law.
Issuance of such bonds shall be subject to the conditions or limitations of this article; however, no bond referendum shall be required for bonds to be issued pursuant to this section. The sections of this article pertaining to election requirements and procedures shall not be applicable where bonds are to be issued for the purposes set forth herein. In addition, the provisions of §§ 21-137.2 and 21-138, authorizing an annual tax to be levied upon all the property in the district in order to pay the principal and interest due on the bonds, shall not be applicable to bonds issued under this section.
All bonds issued under the provisions of this section shall contain a statement on their face substantially to the effect that neither the faith and credit of the Commonwealth nor the faith and credit of any county, city, town or other subdivision of the Commonwealth are pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this section shall not directly or indirectly or contingently obligate the Commonwealth or any county, city, town or other subdivision of the Commonwealth to levy any taxes whatever therefor or to make any appropriation for their payment except from the funds pledged under the provisions of this section.
§ 28.2-1205.1. Coordinated review of water resources projects.
A. Applications for water resources projects that require a Virginia Marine Resources permit and an individual Virginia Water Protection Permit under § 62.1-44.15:5 shall be submitted and processed through a joint application and review process.
B. The Commissioner and the Director of the Department of Environmental Quality, in consultation with the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, the Department of Historic Resources, the Department of Health, the Department of Conservation and Recreation, the Virginia Department of Agriculture and Consumer Services, and any other appropriate or interested state agency, shall coordinate the joint review process to ensure the orderly evaluation of projects requiring both permits.
C. The joint review process shall include, but not be limited
to, provisions to ensure that: (i) the initial application for the project
shall be advertised simultaneously by the Commission and the Department of
Environmental Quality; (ii) project reviews shall be completed by all state
agencies that have been asked to review and provide comments, within 45 days of
project notification by the Commission and the Department of Environmental
Quality; (iii) the Commission and the State Water
Control BoardDepartment of Environmental Quality
shall coordinate permit issuance and, to the extent practicable, shall take
action on the permit application no later than one year after the agencies have
received complete applications; (iv) to the extent practicable, the Commission
and the State Water Control BoardDepartment
of Environmental Quality shall take action concurrently, but no
more than six months apart; and (v) upon taking its final action on each
permit, the Commission and the State Water
Control BoardDepartment of Environmental Quality
shall provide each other with notification of its action and any and all
supporting information, including any background materials or exhibits used in
the application.
§ 29.1-213. Taking samples of water believed to be polluted.
Any conservation police officer appointed under the provisions
of this title may, and shall when requested by a member of the governing body
of a county, city or town, take samples of water from any stream in this
Commonwealth when he has reason to believe that the water may be polluted. Any
conservation police officer collecting any water sample shall take the sample
in a clean container, seal it, and send it to the State Water
Control BoardDepartment of Environmental Quality.
With the sample, the conservation police officer shall enclose a signed
statement showing in reasonable detail the time and place at which the sample
was taken. The officer shall keep the original of the statement and send the
copy with the sample.
§ 29.1-214. Duties of the Department of Environmental Quality with respect to water samples.
Upon the receipt of any water sample sent under § 29.1-213,
the State Water Control BoardDirector
of the Department of Environmental Quality shall have a chemical
analysis of the sample made by a chemist employed by the State Water
Control Board Department of Environmental Quality or
retained especially for that purpose. If the results of the analysis show that
the sample of water was polluted, the State Water
Control BoardDirector of the Department of Environmental Quality
shall initiate further studies and analyses to determine the nature, extent and
most effective measures of control of the pollution.
The State Water Control BoardDirector
of the Department of Environmental Quality shall then proceed as
provided in Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1.
§ 32.1-164. (Effective until July 1, 2009) Powers and duties of Board; regulations; fees; authorized onsite soil evaluators; letters in lieu of permits; inspections; civil penalties.
A. The Board shall have supervision and control over the safe
and sanitary collection, conveyance, transportation, treatment, and disposal of
sewage by onsite sewage systems and alternative discharging sewage systems, and
treatment works as they affect the public health and welfare. In discharging
the responsibility to supervise and control the safe and sanitary treatment and
disposal of sewage as they affect the public health and welfare, the Board
shall exercise due diligence to protect the quality of both surface water and
ground water. Upon the final adoption of a general Virginia Pollutant Discharge
Elimination permit by the State Water Control BoardDirector of the Department of Environmental Quality, the Board of Health
shall assume the responsibility for permitting alternative discharging sewage
systems as defined in § 32.1-163. All such permits shall comply with the
applicable regulations of the State Water Control Board and be registered with
the State Water Control BoardDirector
of the Department of Environmental Quality.
In the exercise of its duty to supervise and control the
treatment and disposal of sewage, the Board shall require and the Department
shall conduct regular inspections of alternative discharging sewage systems.
The Board shall also establish requirements for maintenance contracts for
alternative discharging sewage systems. The Board may require, as a condition
for issuing a permit to operate an alternative discharging sewage system, that
the applicant present an executed maintenance contract. Such contract shall be
maintained for the life of any general Virginia Pollutant Discharge Elimination
System permit issued by the State Water
Control BoardDirector of the Department of Environmental Quality.
B. The regulations of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation:
1. A requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification or operation of a sewerage system or treatment works except in those instances where a permit is required pursuant to Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1.
2. Criteria for the granting or denial of such permits.
3. Standards for the design, construction, installation, modification and operation of sewerage systems and treatment works for permits issued by the Commissioner.
4. Standards governing disposal of sewage on or in soils.
5. Standards specifying the minimum distance between sewerage systems or treatment works and:
(a) Public and private wells supplying water for human consumption,
(b) Lakes and other impounded waters,
(c) Streams and rivers,
(d) Shellfish waters,
(e) Ground waters,
(f) Areas and places of human habitation,
(g) Property lines.
6. Standards as to the adequacy of an approved water supply.
7. Standards governing the transportation of sewage.
8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth.
9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works.
10. Criteria for determining the demonstrated ability of alternative onsite systems, which are not permitted through the then current sewage handling and disposal regulations, to treat and dispose of sewage as effectively as approved methods.
11. Standards for inspections of and requirements for maintenance contracts for alternative discharging sewage systems.
12. Notwithstanding the provisions of subdivision 1 above and Chapter 3.1 of Title 62.1, a requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification, or operation of an alternative discharging sewage system as defined in § 32.1-163.
13. Criteria for granting, denying, and revoking of permits for alternative discharging sewage systems.
14. Procedures for issuing letters recognizing onsite sewage sites in lieu of issuing onsite sewage system permits.
15. Criteria for approved training courses, testing requirements, and application fees for persons wishing to be authorized onsite soil evaluators.
16. Procedures for listing, removing from the list, and reinstating on the list those persons who have successfully qualified to be authorized onsite soil evaluators.
C. A fee of $75 shall be charged for filing an application for an onsite sewage disposal system or an alternative discharging sewage system permit with the Department. Funds received in payment of such charges shall be transmitted to the Comptroller for deposit. The funds from the fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this title. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services or when the application is for a pit privy or the repair of a failing onsite sewage disposal system. If the Department denies the permit for land on which the applicant seeks to construct his principal place of residence, then such fee shall be refunded to the applicant.
From such funds as are appropriated to the Department from the special fund, the Board shall apportion a share to local or district health departments to be allocated in the same ratios as provided for the operation of such health departments pursuant to § 32.1-31. Such funds shall be transmitted to the local or district health departments on a quarterly basis.
D. In addition to factors related to the Board's responsibilities for the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall, in establishing standards, give due consideration to economic costs of such standards in accordance with the applicable provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
E. Further a fee of $75 shall be charged for such installation and monitoring inspections of alternative discharging sewage systems as may be required by the Board. The funds received in payment of such fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this section. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services.
F. Any owner who violates any provision of this section or any
regulation of the Board of Health or the State Water Control Board relating to
alternative discharging sewage systems or who fails to comply with any order of
the Board of Health or any special final order of the State Water
Control BoardDirector of the Department of Environmental Quality
shall be subject to the penalties provided in §§ 32.1-27 and 62.1-44.32.
In the event that a county, city, or town, or its agent, is the owner, the county, city, or town, or its agent may initiate a civil action against any user or users of an alternative discharging sewage system to recover that portion of any civil penalty imposed against the owner which directly resulted from violations by the user or users of any applicable federal, state, or local laws, regulations, or ordinances.
G. The Board shall establish a program for qualifying individuals as authorized onsite soil evaluators. The Board's program shall include, but not be limited to, approved training courses, written and field tests, application fees to cover the costs of the program, renewal fees and schedules, and procedures for listing, removing from the list, and reinstating individuals as authorized onsite soil evaluators. To contain costs, the Board shall use or enhance the written and field tests given to Department of Health sanitarians as the testing vehicle for authorized onsite soil evaluators. Until July 1, 2001, a person holding a certificate as a Virginia certified professional soil scientist from the Board of Professional Soil Scientists shall be deemed to be qualified, upon application and demonstration of the knowledge, skills, and abilities necessary to conduct onsite soil evaluations, as an authorized onsite soil evaluator without completing the Board's training courses and taking the written and field tests. The Board shall furnish the list of authorized onsite soil evaluators to all local and district health departments.
H. The Board shall establish and implement procedures for issuance of letters recognizing the appropriateness of onsite sewage site conditions in lieu of issuing onsite sewage system permits. Such letters shall state, in language determined by the Office of the Attorney General and approved by the Board, the appropriateness of the soil for a traditional septic or other onsite sewage system; no system design shall be required for issuance of such letter. The letter may be recorded in the land records of the clerk of the circuit court in the jurisdiction where all or part of the site or proposed site of the septic or other onsite sewage system is to be located so as to be a binding notice to the public, including subsequent purchases of the land in question. Upon the sale or transfer of the land which is the subject of any letter, the letter shall be transferred with the title to the property. A permit shall be issued on the basis of such letter unless, from the date of the letter's issuance, there has been a substantial, intervening change in the soil or site conditions where the septic system or other onsite sewage system is to be located. The Board, Commissioner, and the Department shall accept evaluations from authorized onsite soil evaluators for the issuance of such letters, if they are produced in accordance with the Board's established procedures for issuance of letters. The Department shall issue such letters within 20 working days of the application filing date when evaluations produced by authorized onsite soil evaluators are submitted as supporting documentation. The Department shall not be required to do a field check of the evaluation prior to issuing such a letter or a permit based on such letter; however, the Department may conduct such field analyses as deemed necessary to protect the integrity of the Commonwealth's environment. Applicants for such letters in lieu of onsite sewage system permits shall pay the fee established by the Board for the letters' issuance and, upon application for a septic system permit or other onsite sewage system permit, shall pay the permit application fee.
I. The Board shall establish a uniform schedule of civil penalties for violations of regulations promulgated pursuant to subsection B that are not remedied within 30 days after service of notice from the Department. Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to § 32.1-248.3.
This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000. Penalties shall not apply to unoccupied structures which do not contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases. The Department may pursue other remedies as provided by law; however, designation of a particular violation for a civil penalty pursuant to this section shall be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.
The Department may issue a civil summons ticket as provided by law for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the Department prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged.
If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court with jurisdiction in the same manner and with the same right of appeal as provided for by law. In any trial for a scheduled violation, the Department shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding. This section shall not be interpreted to allow the imposition of civil penalties for activities related to land development.
§ 32.1-164. (Effective July 1, 2009) Powers and duties of Board; regulations; fees; onsite soil evaluators; letters in lieu of permits; inspections; civil penalties.
A. The Board shall have supervision and control over the safe
and sanitary collection, conveyance, transportation, treatment, and disposal of
sewage by onsite sewage systems and alternative discharging sewage systems, and
treatment works as they affect the public health and welfare. The Board shall
also have supervision and control over the maintenance, inspection, and reuse
of alternative onsite sewage systems as they affect the public health and
welfare. In discharging the responsibility to supervise and control the safe
and sanitary treatment and disposal of sewage as they affect the public health
and welfare, the Board shall exercise due diligence to protect the quality of
both surface water and ground water. Upon the final adoption of a general
Virginia Pollutant Discharge Elimination permit by the State Water
Control BoardDirector of the Department of Environmental Quality,
the Board of Health shall assume the responsibility for permitting alternative
discharging sewage systems as defined in § 32.1-163. All such permits shall
comply with the applicable regulations of the State Water Control Board and be
registered with the State Water Control BoardDirector
of the Department of Environmental Quality.
In the exercise of its duty to supervise and control the
treatment and disposal of sewage, the Board shall require and the Department
shall conduct regular inspections of alternative discharging sewage systems.
The Board shall also establish requirements for maintenance contracts for
alternative discharging sewage systems. The Board may require, as a condition
for issuing a permit to operate an alternative discharging sewage system, that
the applicant present an executed maintenance contract. Such contract shall be
maintained for the life of any general Virginia Pollutant Discharge Elimination
System permit issued by the State Water
Control BoardDirector of the Department of Environmental Quality.
B. The regulations of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems and the maintenance, inspection, and reuse of alternative onsite sewage systems. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation:
1. A requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification or operation of a sewerage system or treatment works except in those instances where a permit is required pursuant to Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1.
2. Criteria for the granting or denial of such permits.
3. Standards for the design, construction, installation, modification and operation of sewerage systems and treatment works for permits issued by the Commissioner.
4. Standards governing disposal of sewage on or in soils.
5. Standards specifying the minimum distance between sewerage systems or treatment works and:
(a) Public and private wells supplying water for human consumption,
(b) Lakes and other impounded waters,
(c) Streams and rivers,
(d) Shellfish waters,
(e) Ground waters,
(f) Areas and places of human habitation,
(g) Property lines.
6. Standards as to the adequacy of an approved water supply.
7. Standards governing the transportation of sewage.
8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth.
9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works.
10. Criteria for determining the demonstrated ability of alternative onsite systems, which are not permitted through the then current sewage handling and disposal regulations, to treat and dispose of sewage as effectively as approved methods.
11. Standards for inspections of and requirements for maintenance contracts for alternative discharging sewage systems.
12. Notwithstanding the provisions of subdivision 1 above and Chapter 3.1 of Title 62.1, a requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification, or operation of an alternative discharging sewage system as defined in § 32.1-163.
13. Criteria for granting, denying, and revoking of permits for alternative discharging sewage systems.
14. Procedures for issuing letters recognizing onsite sewage sites in lieu of issuing onsite sewage system permits.
C. A fee of $75 shall be charged for filing an application for an onsite sewage system or an alternative discharging sewage system permit with the Department. Funds received in payment of such charges shall be transmitted to the Comptroller for deposit. The funds from the fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this title. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services or when the application is for a pit privy or the repair of a failing onsite sewage system. If the Department denies the permit for land on which the applicant seeks to construct his principal place of residence, then such fee shall be refunded to the applicant.
From such funds as are appropriated to the Department from the special fund, the Board shall apportion a share to local or district health departments to be allocated in the same ratios as provided for the operation of such health departments pursuant to § 32.1-31. Such funds shall be transmitted to the local or district health departments on a quarterly basis.
D. In addition to factors related to the Board's responsibilities for the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall, in establishing standards, give due consideration to economic costs of such standards in accordance with the applicable provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
E. Further a fee of $75 shall be charged for such installation and monitoring inspections of alternative discharging sewage systems as may be required by the Board. The funds received in payment of such fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this section. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services.
F. Any owner who violates any provision of this section or any
regulation of the Board of Health or the State Water Control Board relating to
alternative discharging sewage systems or who fails to comply with any order of
the Board of Health or any special final order of the State Water
Control Board Director of the Department of Environmental Quality
shall be subject to the penalties provided in §§ 32.1-27 and
62.1-44.32.
In the event that a county, city, or town, or its agent, is the owner, the county, city, or town, or its agent may initiate a civil action against any user or users of an alternative discharging sewage system to recover that portion of any civil penalty imposed against the owner which directly resulted from violations by the user or users of any applicable federal, state, or local laws, regulations, or ordinances.
G. The Board shall establish and implement procedures for issuance of letters recognizing the appropriateness of onsite sewage site conditions in lieu of issuing onsite sewage system permits. Such letters shall state, in language determined by the Office of the Attorney General and approved by the Board, the appropriateness of the soil for an onsite sewage system; no system design shall be required for issuance of such letter. The letter may be recorded in the land records of the clerk of the circuit court in the jurisdiction where all or part of the site or proposed site of the onsite sewage system is to be located so as to be a binding notice to the public, including subsequent purchases of the land in question. Upon the sale or transfer of the land which is the subject of any letter, the letter shall be transferred with the title to the property. A permit shall be issued on the basis of such letter unless, from the date of the letter's issuance, there has been a substantial, intervening change in the soil or site conditions where the onsite sewage system is to be located. The Board, Commissioner, and the Department shall accept evaluations from licensed onsite soil evaluators for the issuance of such letters, if they are produced in accordance with the Board's established procedures for issuance of letters. The Department shall issue such letters within 20 working days of the application filing date when evaluations produced by licensed onsite soil evaluators are submitted as supporting documentation. The Department shall not be required to do a field check of the evaluation prior to issuing such a letter or a permit based on such letter; however, the Department may conduct such field analyses as deemed necessary to protect the integrity of the Commonwealth's environment. Applicants for such letters in lieu of onsite sewage system permits shall pay the fee established by the Board for the letters' issuance and, upon application for an onsite sewage system permit, shall pay the permit application fee.
H. The Board shall establish a program for the operation and maintenance of alternative onsite systems. The program shall require:
1. The owner of an alternative onsite sewage system, as defined in § 32.1-163, to have that system operated by a licensed operator, as defined in § 32.1-163, and visited by the operator as specified in the operation permit;
2. The licensed operator to provide a report on the results of the site visit utilizing the web-based system required by this subsection. A fee of $1 shall be paid by the licensed operator at the time the report is filed. Such fees shall be credited to the Onsite Operation and Maintenance Fund established pursuant to § 32.1-164.8;
3. A statewide web-based reporting system to track the operation, monitoring, and maintenance requirements of each system, including its components. The system shall have the capability for pre-notification of operation, maintenance, or monitoring to the operator or owner. Licensed operators shall be required to enter their reports onto the system. The Department of Health shall utilize the system to provide for compliance monitoring of operation and maintenance requirements throughout the state. The Commissioner shall consider readily available commercial systems currently utilized within the Commonwealth; and
4. Any additional requirements deemed necessary by the Board.
I. The Board shall promulgate regulations governing the requirements for maintaining alternative onsite sewage systems.
J. The Board shall establish a uniform schedule of civil penalties for violations of regulations promulgated pursuant to subsection B that are not remedied within 30 days after service of notice from the Department. Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to § 32.1-248.3.
This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000. Penalties shall not apply to unoccupied structures which do not contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases. The Department may pursue other remedies as provided by law; however, designation of a particular violation for a civil penalty pursuant to this section shall be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.
The Department may issue a civil summons ticket as provided by law for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the Department prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged.
If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court with jurisdiction in the same manner and with the same right of appeal as provided for by law. In any trial for a scheduled violation, the Department shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding.
This section shall not be interpreted to allow the imposition of civil penalties for activities related to land development.
§ 45.1-161.6. Department to serve as lead agency for inspections undertaken subsequent to the issuance of a permit.
Following the issuance of any permit under Chapter 16 (§
45.1-180 et seq.) or 19 (§ 45.1-226 et seq.) of this title, the Department
shall serve as the lead agency for enforcement of the provisions of the permit.
Any other agency which has reviewed and approved, or not disapproved, a permit
application prior to its approval by the Director shall contact the Director or
his designee prior to making any routine inspection. The Director or his
designee shall then contact the permittee, if prior contact is to be made, to
schedule the inspection and shall accompany any employee of any agency other
than the Department during any inspection by such other agency. However,
nothing in this section shall apply in the event of a blackwater discharge, a
failure of waste treatment facilities, or other situation that in the judgment
of the State Water Control BoardDirector
of the Department of Environmental Quality requires an inspection
on an emergency or expedited basis.
§ 45.1-179.9. Cancellation or suspension of permit.
Whenever, after a public hearing held in conjunction with the BoardDirector
of the Department of Environmental Quality, the Department
determines that a holder of a permit issued pursuant to the provisions of this
chapter is willfully violating any provision of such permit or any provision of
this chapter, the Department may cancel or suspend such permit for cause or
impose limitations on the future use thereof in order to prevent future
violations.
§ 45.1-254. National pollutant discharge elimination system permits.
A. Upon request of the Director, the State Water
Control BoardDirector of the Department of Environmental Quality may delegate to the Director its
authority, under the State Water Control Law, Chapter 3.1 (§ 62.1-44.2 et seq.)
of Title 62.1 to issue, amend, revoke and enforce national pollutant discharge
elimination system permits for the discharge of sewage, industrial wastes and
other wastes from coal surface mining operations. Upon receiving such
delegation, the authority to issue, amend, revoke and enforce national
pollutant discharge elimination system permits under the State Water Control
Law for the discharge of sewage, industrial wastes and other wastes from coal
surface mining operations, to the extent required under the federal Clean Water
Act, P.L. 92-500, as amended, shall be vested solely in the Director,
notwithstanding any provision of law contained in Title 62.1, except as
provided herein. For the purpose of enforcement under this section, the
provisions of §§ 62.1-44.31 and 62.1-44.32 shall apply to permits, orders and
regulations issued by the Director in accordance with this section.
B. After having received delegation of authority pursuant to
subsection A of this section, the Director shall transmit to the State
Water Control BoardDirector of the Department
of Environmental Quality a copy of each application for a national
pollutant discharge elimination system permit received by the Director, and
provide written notice to the State Water
Control BoardDirector of the Department of
Environmental Quality of every action related to the consideration
of such permit application.
C. No national pollutant elimination system permit shall be
issued if, within thirty days of the date of the transmittal of the complete
application and the proposed national pollution discharge elimination system
permit, the State Water Control BoardDirector
of the Department of Environmental Quality
objects in writing to the issuance of such permit. Whenever the State
Water Control BoardDirector of the Department
of Environmental Quality objects to the issuance of such permit
under this section, such written objection shall contain a statement of the
reasons for such objection and the effluent limitations and conditions which
such permits would include if it were issued by the State Water
Control BoardDirector of the Department of
Environmental Quality.
D. An applicant who is aggrieved by an objection made under
subsection C of this section shall have the right to a hearing before the State
Water Control BoardDirector of the Department
of Environmental Quality pursuant to § 62.1-44.25. If the State
Water Control BoardDirector of the Department
of Environmental Quality withdraws, in writing, its objection to
the issuance of a certificate, the Director may issue the permit. Any
applicant, aggrieved by a final decision of the State Water
Control BoardDirector of the Department of
Environmental Quality made pursuant to this subsection, shall have
the right to judicial review in accordance with the provisions of the
Administrative Process Act (§ 2.2-4000 et seq.).
E. Whenever, on the basis of any information available to it,
the State Water Control Board Director
of the Department of Environmental Quality finds
that any person is in violation of any condition or limitation contained in a
national pollutant discharge elimination system permit issued by the Director,
it shall notify the person in alleged violation and the Director. If beyond the
thirtieth day after notification by the State Water
Control BoardDirector of the Department of Environmental Quality,
the Director has not commenced appropriate enforcement action, the State
Water Control BoardDirector of the Department
of Environmental Quality may take appropriate enforcement action
pursuant to §§ 62.1-44.15, 62.1-44.23 and 62.1-44.32.
F. The Director shall promulgate such regulations as he deems necessary for the issuance, administration, monitoring and enforcement of national pollutant discharge elimination system permits for coal surface mining operations.
G. For the purpose of this section, the terms "sewage," "industrial wastes" and "other wastes" shall have the meanings ascribed to them in § 62.1-44.3.
§ 46.2-1178.1. On-road testing of motor vehicle emissions; authority to adopt regulations; civil charges.
A. The emissions inspection program authorized by § 46.2-1177 and provided for in § 46.2-1178 shall include on-road testing of motor vehicle emissions. The Board may promulgate regulations establishing on-road testing requirements including, but not limited to, collecting of data and information necessary to comply with the federal Clean Air Act Amendments of 1990, random testing of motor vehicle emissions, procedures to notify owners of test results, and assessment of civil charges for noncompliance with emissions standards adopted by the Board.
B. If an emissions test performed pursuant to this section
indicates that a motor vehicle does not meet emissions standards established by
the Board, the BoardDirector
may collect from the owner of the vehicle a civil charge based on actual
emissions. The Board shall establish a schedule of civil charges to be
collected pursuant to this section. Such civil penalties shall not exceed $450
using 1990 as the base year and adjusted annually by the Consumer Price Index.
The schedule of charges and their assessment shall be established by
regulations promulgated to be in accordance with the provisions of the
Administrative Process Act (§ 2.2-4000 et seq.).
C. Civil charges assessed pursuant to this section shall be
waived by the BoardDirector
if, within thirty calendar days of notice of the violation, the vehicle's owner
provides proof that the vehicle (i) since the date of the violation, has passed
a vehicle emissions test as provided in § 46.2-1178, (ii) qualifies for an
emissions inspection waiver as provided in § 46.2-1181, or (iii) has qualified
for an emissions inspection waiver as provided in § 46.2-1181 within the twelve
months prior to the violation.
D. Civil charges collected pursuant to this section shall be paid into the state treasury and deposited by the State Treasurer into the Vehicle Emissions Inspection Program Fund pursuant to § 46.2-1182.2.
E. If on-road testing indicates that a motor vehicle does not exceed emissions standards adopted by the Board for on-road testing pursuant to § 46.2-1179, such testing may be considered proof of compliance for the purposes of § 46.2-1183 and may be considered to satisfy the requirements of § 46.2-1177 for a biennial inspection. The Board shall establish criteria under which such testing shall satisfy the requirements of § 46.2-1183.
§ 46.2-1179.1. Board to adopt clean alternative fuel fleet standards for motor vehicles; penalty.
A. For purposes of this section:
"Clean alternative fuel" means any fuel, including methanol, ethanol, other alcohols, reformulated gasoline, diesel, natural gases, liquified petroleum gas, hydrogen, and electricity or other power source used in a clean fuel vehicle that complies with the standards applicable to such vehicle under the federal Clean Air Act when using such fuel or other power source. In the case of a flexible fuel vehicle or dual fuel vehicle, "clean alternative fuel" means only a fuel for which the vehicle was certified when operating on clean alternative fuel.
"Fleet" means any centrally fueled fleet of ten or more motor vehicles owned or operated by a single entity. "Fleet" does not include motor vehicles held for lease or rental to the general public, motor vehicles held for sale by motor vehicle dealers, motor vehicles used for manufacturer product tests, law-enforcement and other emergency vehicles, or nonroad vehicles, including farm and construction vehicles.
B. The Board may adopt by regulation motor vehicle clean
alternative fuel fleet standards consistent with the provisions of Part C of
Title II of the federal Clean Air Act for model years beginning with the model
year 1998 or the first succeeding model year for which adoption of such
standards is practicable. If adoption and
implementation by the Board and
implementation by the Director of an equivalent air pollution
reduction program is approved by the federal Environmental Protection Agency,
the regulation and program authorized by this section shall not become
effective. Such regulations shall contain the minimum phase-in schedule
contained in § 246 (b) of Part C of Title II of the Clean Air Act. However,
nothing in this section shall preclude affected fleet owners from exceeding the
minimum requirements of the federal Clean Air Act. Beginning in 1995 and upon
adoption of the standards by the Board, the Board shall require the fleet owned
by the federal government to meet the clean alternative fuel fleet standard and
phase-in schedule established by the Board. If necessary to meet the Board's
standards and phase-in schedule, the Board shall require fleets owned by the
federal government to convert a portion of existing fleet vehicles to the use
of clean alternative fuels as defined by the federal Clean Air Act. The
standards specified in this subsection shall apply only to (i) motor vehicles
registered in localities designated by the federal Environmental Protection
Agency, pursuant to the federal Clean Air Act, as serious, severe, or extreme
air quality nonattainment areas, or as maintenance areas formerly designated
serious, severe, or extreme and (ii) motor vehicles not registered in the
above-mentioned localities, but having either (a) a base of operations or (b) a
majority of their annual travel in one or more of those localities.
C. An owner of a covered fleet shall not use any motor vehicle or motor vehicle engine which is manufactured during or after the first model year to which the standards specified in subsection A of this section are applicable, if such vehicle or engine is registered or has its base of operations in the localities specified in subsection B of this section and has not been certified in accordance with regulations promulgated by the Board. The Board may promulgate regulations providing for reasonable exemptions consistent with the provisions of Part C of Title II of the federal Clean Air Act. Motor vehicles exempted from the provisions of this section shall forever be exempt.
D. Any person that violates the requirements of this section or any regulation adopted hereunder shall be subject to the penalties in §§ 46.2-1187 and 46.2-1187.2. Each day of violation shall be a separate offense, and each motor vehicle shall be treated separately in assessing violations.
E. In order to limit adverse economic and administrative impacts on covered fleets operating both in Virginia and in neighboring states, the Department of Environmental Quality shall, to the maximum extent practicable, coordinate the provisions of its regulations promulgated under this section with neighboring states' statutes and regulations relating to use of clean alternative fuels by motor vehicle fleets.
F. The State Corporation Commission, as to matters within its
jurisdiction, and the Department of Environmental QualityBoard,
as to other matters, may, should they deem such action necessary, promulgate
regulations necessary or convenient to ensure the availability of clean
alternative fuels to operators of fleets covered by the provisions of this
section. The State Air Pollution Control BoardThe
Director of the Department of Environmental Quality
may delegate to the Commissioner of Agriculture itshis
authority under the Air Pollution Control Law of Virginia, Chapter 13 (§
10.1-1300 et seq.) of Title 10.1, to implement and enforce any provisions of its regulations covering the availability of clean alternative
fuels. Upon receiving such delegation, the authority to implement and enforce
the regulations under the Air Pollution Control Law of Virginia shall be vested
solely in the Commissioner, notwithstanding any provision of law contained in
Title 10.1, except as provided in this section. The State Air Pollution
Control BoardDirector of the Department of Environmental Quality,
in delegating itshis
authority under this section, may make the delegation subject to any conditions it
he
deems appropriate to ensure effective implementation of the regulations
according to the policies of the State Air Pollution Control Board.
§ 46.2-1187.2. Compelling compliance with regulations and orders; penalty.
Any emissions inspection station owner violating or failing,
neglecting, or refusing to obey any regulation or order of
the Board or order of the
Director may be compelled to comply by injunction, mandamus, or
other appropriate remedy.
Without limiting the remedies which may be obtained under the
foregoing provisions of this section, any emissions inspection station owner
violating or failing, neglecting, or refusing to obey any regulation or
order of the Board or order
of the Director or any provision of this
article, shall, in the discretion of the court, be subject to a civil penalty of
no more than $25,000 for each violation. Each day of violation shall constitute
a separate offense. In determining the amount of any civil penalty to be
assessed, the court shall consider, in addition to such other factors as it may
deem appropriate, the size of the emissions inspection station owner's
business, the severity of the economic impact of the penalty on that business,
and the seriousness of the violation. Such civil penalties may, in the
discretion of the court, be directed to be paid into the treasury of the
county, city, or town in which the violation occurred to be used to abate
environmental pollution in whatever manner the court, by order, may direct.
However, where the emissions inspection station owner is the county, city, or
town or an agent thereof, the court shall direct the penalty to be paid into
the state treasury.
With the consent of the emissions inspection station owner who
has violated or failed, neglected, or refused to obey any regulation of
the Board or order of the Board Director
or any provision of this article, the BoardDirector
may, in any order issued by the BoardDirector
against such owner, provide for the payment of civil charges in specific sums,
not to exceed the limit in the foregoing provisions of this section. Such civil
charges shall be in lieu of any civil penalty which could be imposed under the
foregoing provisions of this section.
Any penalty provided for in this section to which an emissions inspection station owner is subject shall apply to any emissions inspector or certified emissions repair mechanic employed by or at that station.
As to emissions inspection station owners, emissions inspectors, and certified emissions repair mechanics, minor violations as set forth in Board regulations may be punishable by letters of reprimand from the Department. Major violations as set forth in Board regulations may be punishable by probation, suspension and/or license or certificate revocation, depending on the nature and type of violation. Civil penalties may be imposed only for major types of violations.
The Board shall provide by regulation a process whereby emissions inspection station owners, emissions inspectors and certified emissions repair mechanics may appeal penalties for violations. Such regulations regarding the process to appeal penalties for violations shall provide that the appeal process shall be handled by a person other than the Program Manager for the applicable emissions program or one of his regional employees.
§ 54.1-2300. (Effective until July 1, 2009) Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board for Waterworks and Wastewater Works Operators.
"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 waterworks or 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 waterworks or wastewater works.
"Owner" means the Commonwealth of Virginia, or any political subdivision thereof, any public or private institution, corporation, association, firm or company organized or existing under the laws of this Commonwealth or of any other state or nation, or any person or group of persons acting individually or as a group, who own, manage, or maintain waterworks or wastewater works.
"Person" means any individual, group of individuals, a corporation, a partnership, a business trust, an association or other similar legal entity engaged in operating waterworks or wastewater works.
"Wastewater works" means each system of (i) sewerage
systems or sewage treatment works, serving more than 400 persons, as set forth
in § 62.1-44.18; (ii) sewerage systems or sewage treatment works serving fewer
than 400 persons, as set forth in § 62.1-44.18, if so certified by the State
Water Control BoardDirector of the
Department of Environmental Quality; and (iii) facilities for
discharge to state waters of industrial wastes or other wastes, if certified by
the State Water Control BoardDirector
of the Department of Environmental Quality.
"Waterworks means each system of structures and appliances used in connection with the collection, storage, purification, and treatment of water for drinking or domestic use and the distribution thereof to the public, except distribution piping. Systems serving fewer than 400 persons shall not be considered to be a waterworks unless certified by the Board to be such.
§ 54.1-2300. (Effective July 1, 2009) Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals.
"Onsite sewage system" means a conventional onsite sewage system or alternative onsite sewage system as defined in § 32.1-163.
"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 waterworks or wastewater works operations or to operate and maintain onsite sewage systems. 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 waterworks or wastewater works.
"Owner" means the Commonwealth of Virginia, or any political subdivision thereof, any public or private institution, corporation, association, firm or company organized or existing under the laws of this Commonwealth or of any other state or nation, or any person or group of persons acting individually or as a group, who own, manage, or maintain waterworks or wastewater works.
"Person" means any individual, group of individuals, a corporation, a partnership, a business trust, an association or other similar legal entity engaged in operating waterworks or wastewater works.
"Wastewater works" means each system of (i) sewerage
systems or sewage treatment works, serving more than 400 persons, as set forth
in § 62.1-44.18; (ii) sewerage systems or sewage treatment works serving fewer
than 400 persons, as set forth in § 62.1-44.18, if so certified by the State
Water Control BoardDirector of the
Department of Environmental Quality; and (iii) facilities for
discharge to state waters of industrial wastes or other wastes, if certified by
the State Water Control BoardDirector
of the Department of Environmental Quality.
"Waterworks" means each system of structures and appliances used in connection with the collection, storage, purification, and treatment of water for drinking or domestic use and the distribution thereof to the public, except distribution piping. Systems serving fewer than 400 persons shall not be considered to be a waterworks unless certified by the Board to be such.
§ 56-586.1. Electric energy emergencies.
A. As used in this section, "electric energy emergency" means an unplanned interruption in the generation or transmission of electricity resulting from a hurricane, ice storm, windstorm, earthquake or similar natural phenomena, or from a criminal act affecting such generation or transmission, act of war or act of terrorism, which interruption is (i) of such severity that minimum levels of reliable service cannot be maintained using resources practicably obtainable from the market and (ii) so imminently and substantially threatening to the health, safety or welfare of residents of this Commonwealth that immediate action of state government is necessary to prevent loss of life, protect the public health or safety, and prevent unnecessary or avoidable damage to property.
B. The Governor is authorized, after finding that an electric energy emergency exists and that appropriate federal and state agencies and appropriate reliability councils cannot adequately address such emergency, to declare an electric energy emergency by filing a written declaration with the Secretary of the Commonwealth. The declaration shall state the counties and cities or utility service areas of the Commonwealth in which the declaration is applicable, or its statewide application. A declared electric energy emergency shall go into immediate effect upon filing and continue in effect for the period prescribed in the declaration, but not more than thirty days. At the end of the prescribed period, the Governor may issue another declaration extending the emergency. The Governor shall terminate such declaration as soon as the basis for such declaration no longer exists.
C. During a declared electric energy emergency, the Governor
is authorized, in compliance with guidelines of the Department of Emergency
Services promulgated as provided in subsection G, to require any generator or
any municipal electric utility that is capable of generating but (i) is not
generating or (ii) is not generating at its full potential during such declared
electric emergency, to generate, dispatch or sell electricity from a facility
that it operates within the Commonwealth, to the Commonwealth for distribution
within the areas of the Commonwealth designated in the declaration. The
quantity of electricity required to be generated, dispatched or sold, and the
duration of such requirements, shall be as determined by the Governor to be necessary
to alleviate the electric energy emergency hardship. The Commonwealth shall
compensate an entity required to generate, dispatch, or sell electricity
pursuant to this subsection, and the operator of any transmission facilities
over which the electricity is transmitted, in the manner provided in § 56-522,
mutatis mutandis, unless otherwise provided by federal law. The Director
of the Department of Environmental Quality, the State Air
Pollution Control Board, the State Water Control Board, and the Virginia Waste
Management Board shall issue any temporary or emergency permit,
order, or variance necessary to authorize any permit amendments or other
changes needed to meet the requirements imposed under this section and the
Governor may petition the President to declare a regional energy emergency
under 42 U.S.C. § 7410(f) as necessary to suspend enforcement of any provision
of the federal Clean Air Act. Any increased operation required during such
declared emergency shall not be counted towards the number of hours of
operation allowed during the year. No civil charges or penalties shall be
imposed for any violation that occurs as a result of actions taken that are
necessary for the required generation, dispatch or sale during the declared
electric energy emergency. The foregoing provisions shall apply to all actions
the entity takes in connection with such required generation, dispatch or sale
during the period of the declared emergency.
D. During a declared electric energy emergency, the Governor may use the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the Commonwealth, and of the political subdivisions thereof, to the maximum extent practicable and necessary to meet the electric energy emergency. The officers and personnel of all such departments, offices, and agencies shall cooperate with and extend such services and facilities to the Governor upon request.
E. During a declared electric energy emergency, the Governor is authorized to request the Secretary of the United States Department of Energy to invoke section 202(C) of the Federal Power Act, 16 U.S.C. § 824a (1935).
F. The General Assembly is authorized by joint resolution to terminate any declaration of an electric energy emergency. The emergency shall be terminated at the time of filing of the joint resolution with the Secretary of the Commonwealth.
G. The Department of Emergency Services, in consultation with the Commission and the Secretary of Commerce and Trade, shall establish guidelines for the implementation of the Governor's powers pursuant to subsection C that protect the public health and safety and prevent unnecessary or avoidable damage to property with a minimum of economic disruption to generators, transmitters and distributors of electricity. Such guidelines shall:
1. Define various foreseeable levels of electric energy emergencies and specify appropriate measures to be taken for each type of electric energy emergency as necessary to protect the public health or safety or prevent unnecessary or avoidable damage to property;
2. Prescribe appropriate response measures for each level of electric energy emergency; and
3. Equitably distribute the burdens and benefits resulting from the implementation of this section among other members of the affected class of persons within all geographic regions of the Commonwealth.
H. During a declared electric energy emergency, the attorney general may bring an action for injunctive or other appropriate relief in the Circuit Court of the City of Richmond to secure prompt compliance. The court may issue an ex parte temporary order without notice that shall enforce the prohibitions, restrictions or actions that are necessary to secure compliance with the guideline, order or declaration.
I. During a declared electric energy emergency, no person shall intentionally violate any guideline adopted or declaration issued pursuant to this section. Any person who violates this section is guilty of a Class 1 misdemeanor.
§ 58.1-3660. Certified pollution control equipment and facilities.
A. Certified pollution control equipment and facilities, as defined herein, are hereby declared to be a separate class of property and shall constitute a classification for local taxation separate from other such classification of real or personal property and such property. The governing body of any county, city or town may, by ordinance, exempt or partially exempt such property from local taxation. Certified pollution control equipment and facilities consisting of equipment used in collecting, processing, and distributing, or generating electricity from, landfill gas or synthetic or natural gas recovered from waste, including equipment used to grind, chip, or mulch trees, tree stumps, underbrush, and other vegetative cover for reuse as landfill gas or synthetic or natural gas recovery from waste, placed in service on or after July 1, 2006, shall be exempt from state and local taxation pursuant to subsection d of Section 6 of Article X of the Constitution of Virginia.
B. As used in this section:
"Certified pollution control equipment and facilities" shall mean any property, including real or personal property, equipment, facilities, or devices, used primarily for the purpose of abating or preventing pollution of the atmosphere or waters of the Commonwealth and which the state certifying authority having jurisdiction with respect to such property has certified to the Department of Taxation as having been constructed, reconstructed, erected, or acquired in conformity with the state program or requirements for abatement or control of water or atmospheric pollution or contamination. Such property shall include, but is not limited to, any equipment used to grind, chip, or mulch trees, tree stumps, underbrush, and other vegetative cover for reuse as mulch, compost, landfill gas, synthetic or natural gas recovered from waste or other fuel, and equipment used in collecting, processing, and distributing, or generating electricity from, landfill gas or synthetic or natural gas recovered from waste, whether or not such property has been certified to the Department of Taxation by a state certifying authority.
"State certifying authority" shall mean the State
Water Control Board,Director
of the Department of Environmental Quality for water pollution,
; the State Air Pollution Control Board, for air
pollution, waste disposal facilities, natural gas recovered
from waste facilities, and landfill gas production facilities; the
Department of Mines, Minerals and Energy, for coal, oil, and gas production, including
gas, natural gas, and coalbed methane gas; and the Virginia
Waste Management Board, for waste disposal facilities, natural gas recovered
from waste facilities, and landfill gas production facilities,
and shall include any interstate agency authorized to act in place of a
certifying authority of the Commonwealth.
§ 58.1-3664. Environmental restoration sites.
Environmental restoration sites, as defined herein, are hereby declared to be a separate class of property and shall constitute a classification for local taxation separate from other such classification of real property. The governing body of any county, city or town may, by ordinance, exempt or partially exempt such property from local taxation annually for a period not in excess of five years.
"Environmental restoration site" means real estate
which contains or did contain environmental contamination from the release of
hazardous substances, hazardous wastes, solid waste or petroleum, the
restoration of which would abate or prevent pollution to the atmosphere or
waters of the Commonwealth and which (i) is subject to voluntary remediation
pursuant to § 10.1-1232 and (ii) receives a certificate of continued
eligibility from the Virginia Waste Management BoardDirector
of the Department of Environmental Quality during each year which
it qualifies for the tax treatment described in this section.
§ 62.1-44.3. Definitions.
Unless a different meaning is required by the context, the following terms as used in this chapter shall have the meanings hereinafter respectively ascribed to them:
"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural uses, electric power generation, commercial, and industrial uses.
"Board" means the State Water Control Board.
"Certificate" means any permit or certificate
issued by the BoardDirector, including general permits, issued under this chapter.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Establishment" means any industrial establishment, mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker or coal-processing operations, quarry, oil refinery, boat, vessel, and every other industry or plant or works the operation of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any state waters.
"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil or rock.
"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.
"The law" or "this law" means the law contained in this chapter as now existing or hereafter amended.
"Member" means a member of the Board.
"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.1-22.29 and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto.
"Normal silvicultural activities" means any silvicultural activity as defined in § 10.1-1181.1 and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. § 1344 or any regulations promulgated pursuant thereto.
"Other wastes" means decayed wood, sawdust, shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances except industrial wastes and sewage which may cause pollution in any state waters.
"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.
"Person" means an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.
"Policies" means policies established under subdivisions (3a) and (3b) of § 62.1-44.15.
"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the Board, are "pollution" for the terms and purposes of this chapter.
"Pretreatment requirements" means any requirements arising under the Board's pretreatment regulations 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 standards" means any standards of performance or other requirements imposed by regulation of the Board upon an industrial user of a publicly owned treatment works.
"Reclaimed water" means water resulting from the treatment of domestic, municipal, or industrial wastewater that is suitable for a direct beneficial or controlled use that would not otherwise occur. Specifically excluded from this definition is "gray water."
"Reclamation" means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a direct beneficial or controlled use that would not otherwise occur.
"Regulation" means a regulation issued under § 62.1-44.15 (10).
"Reuse" means the use of reclaimed water for a direct beneficial use or a controlled use that is in accordance with the requirements of the Board.
"Rule" means a rule adopted by the Board to regulate the procedure of the Board pursuant to § 62.1-44.15 (7).
"Ruling" means a ruling issued under § 62.1-44.15 (9).
"Sewage" means the water-carried human wastes from residences, buildings, industrial establishments or other places together with such industrial wastes and underground, surface, storm, or other water as may be present.
"Sewage treatment works" or "treatment works" means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power, and other equipment, and appurtenances, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for the ultimate disposal of residues or effluent resulting from such treatment. These terms shall not include onsite sewage systems or alternative discharging sewage systems.
"Sewerage system" means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage or industrial wastes or other wastes to a point of ultimate disposal.
"Special order" means a special order issued under subdivisions (8a), (8b), and (8c) of § 62.1-44.15.
"Standards" means standards established under subdivisions (3a) and (3b) of § 62.1-44.15.
"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.
"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.
§ 62.1-44.4. Control by Commonwealth as to water quality.
(1) No right to continue existing quality degradation in any state water shall exist nor shall such right be or be deemed to have been acquired by virtue of past or future discharge of sewage, industrial wastes or other wastes or other action by any owner. The right and control of the Commonwealth in and over all state waters is hereby expressly reserved and reaffirmed.
(2) Waters whose existing quality is better than the
established standards as of the date on which such standards become effective
will be maintained at high quality; provided that the BoardDirector
has the power to authorize any project or development, which would constitute a
new or an increased discharge of effluent to high quality water, when it has
been affirmatively demonstrated that a change is justifiable to provide
necessary economic or social development; and provided, further, that the
necessary degree of waste treatment to maintain high water quality will be
required where physically and economically feasible. Present and anticipated
use of such waters will be preserved and protected.
§ 62.1-44.5. Prohibition of waste discharges or other quality alterations of state waters except as authorized by permit; notification required.
A. Except in compliance with a certificate issued by the BoardDirector,
it shall be unlawful for any person to:
1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances;
2. Excavate in a wetland;
3. Otherwise alter the physical, chemical or biological properties of state waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses; or
4. On and after October 1, 2001, conduct the following activities in a wetland:
a. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
b. Filling or dumping;
c. Permanent flooding or impounding; or
d. New activities that cause significant alteration or degradation of existing wetland acreage or functions.
5. Discharge stormwater into state waters from Municipal Separate Storm Sewer Systems or land disturbing activities unless in compliance with a permit issued pursuant to Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1.
B. Any person in violation of the provisions of subsection A who discharges or causes or allows (i) a discharge of sewage, industrial waste, other wastes or any noxious or deleterious substance into or upon state waters or (ii) a discharge that may reasonably be expected to enter state waters shall, upon learning of the discharge, promptly notify, but in no case later than 24 hours the Board, the Director of the Department of Environmental Quality, or the coordinator of emergency services appointed pursuant to § 44-146.19 for the political subdivision reasonably expected to be affected by the discharge. Written notice to the Director of the Department of Environmental Quality shall follow initial notice within the time frame specified by the federal Clean Water Act.
§ 62.1-44.9. Qualifications of members.
A. Members of the Board shall be citizens of the Commonwealth;
shall be selected from the Commonwealth at large for merit without regard to
political affiliation; and shall, by character and
reputation, reasonably be expected to inspire the highest degree of cooperation
and confidence in the work of the Board. No person shall
become a member of the Board who receives, or during the previous two years has
received, a significant portion of his income directly or indirectly from
certificate or permit holders or applicants for a certificate or permit.
For the purposes of this section, "significant
portion of income" means ten percent or more of gross personal income for
a calendar year, except that it means fifty percent or more of gross personal
income for a calendar year if the recipient is over sixty years of age and is
receiving that portion under retirement, pension, or similar arrangement.
Income includes retirement benefits, consultant fees, and stock dividends.
Income is not received directly or indirectly from certificate or permit
holders or applicants for certificates or permits when it is derived from mutual
fund payments, or from other diversified investments for which the recipient
does not know the identity of the primary sources of incometheir
education, training, or experience, be knowledgeable of water
quality matters and principles and shall be fairly representative of agriculture, business,
conservation, and public health.
B. Notwithstanding any other provision of this section relating to Board membership, the qualifications for Board membership shall not be more strict than those which may be required by federal statute or regulations of the United States Environmental Protection Agency.
§ 62.1-44.13. Inspections and investigations, etc.
The BoardDirector
shall make such inspections, conduct such investigations and do such other
things as are necessary to carry out the provisions of this chapter, within the
limits of appropriation, funds, or personnel which are, or become, available
from any source for this purpose.
§ 62.1-44.14. Chairman; Executive Director; employment of personnel; supervision; budget preparation.
The Board shall elect its chairman, and the Executive
Director shall be appointed as set forth in § 2.2-106. The Executive Director
shall serve as executive officer and devote his whole time to the performance
of his duties, and he shall have such administrative powers as are conferred
upon him by the Board; and, further, theDirector shall
serve as the Board's Executive
Director. The Board may delegate to its
Executive Director any of the powers and duties invested in it by this chapter
except the adoption and promulgation of standards, rules and regulations;
and the revocation of certificates. The Executive Director
is authorized to issue, modify or revoke orders in cases of emergency as
described in §§ 62.1-44.15 (8b) and 62.1-44.34:20 of this chapter. The Executive Director is further authorized to employ such
consultants and full-time technical and clerical workers as are necessary and
within the available funds to carry out the purposes of this chapter.
It shall be the
duty of the ExecutiveThe
Director to shall issue,
reissue, revoke, terminate, modify, amend, and enforce any permits, licenses,
certificates, variances, and exemptions under this chapter; adopt and issue
general permits and general permit regulations; exercise general
supervision and control over the quality and management of all state waters and
to administer and enforce this chapter, and all certificates, standards,
policies, rules, regulations, rulings and special orders promulgated by the Board issued hereunder.
The Executive Director shall prepare,
approve, and submit all requests for appropriations and be responsible for all
expenditures pursuant to appropriations.
§ 62.1-44.15. Powers and duties; civil penalties.
It shall be the duty of the Board and it shall have
the authority:The Board and the Director shall have the following
powers and duties:
(1) —Repealed.]
(2) ToThe Board may
study and investigate all problems concerned with the quality of state waters
and to make reports and recommendations.
(2a) ToThe Board may
study and investigate methods, procedures, devices, appliances, and
technologies that could assist in water conservation or water consumption
reduction.
(2b) ToThe Board may
coordinate its efforts toward water conservation with other persons or groups,
within or without the Commonwealth.
(2c) ToThe Board may
make reports concerning, and formulate recommendations based upon, any such
water conservation studies to ensure that present and future water needs of the
citizens of the Commonwealth are met.
(3a) ToThe Board may
establish such standards of quality and policies for any state waters
consistent with the general policy set forth in this chapter, and to modify,
amend or cancel any such standards or policies established and to take all
appropriate steps to prevent quality alteration contrary to the public interest
or to standards or policies thus established, except that a description of
provisions of any proposed standard or policy adopted by regulation which are
more restrictive than applicable federal requirements, together with the reason
why the more restrictive provisions are needed, shall be provided to the
standing committee of each house of the General Assembly to which matters
relating to the content of the standard or policy are most properly referable.
The Board shall, from time to time, but at least once every three years, hold
public hearings pursuant to § 2.2-4007.01 but, upon the request of an affected
person or upon its own motion, hold hearings pursuant to § 2.2-4009, for the purpose
of reviewing the standards of quality, and, as appropriate, adopting,
modifying, or canceling such standards. Whenever the Board considers the
adoption, modification, amendment or cancellation of any standard, it shall
give due consideration to, among other factors, the economic and social costs
and benefits which can reasonably be expected to obtain as a consequence of the
standards as adopted, modified, amended or cancelled. The Board shall also give
due consideration to the public health standards issued by the Virginia
Department of Health with respect to issues of public health policy and
protection. If the Board does not follow the public health standards of the
Virginia Department of Health, the Board's reason for any deviation shall be
made in writing and published for any and all concerned parties.
(3b) Except as provided in subdivision (3a), such standards and policies are to be adopted or modified, amended or cancelled in the manner provided by the Administrative Process Act (§ 2.2-4000 et seq.).
(4) ToThe Board may
conduct or have conducted scientific experiments, investigations, studies, and
research to discover methods for maintaining water quality consistent with the
purposes of this chapter. To this end the Board may cooperate with any public
or private agency in the conduct of such experiments, investigations and
research and may receive in behalf of the Commonwealth any moneys that any such
agency may contribute as its share of the cost under any such cooperative
agreement. Such moneys shall be used only for the purposes for which they are
contributed and any balance remaining after the conclusion of the experiments,
investigations, studies, and research, shall be returned to the contributors.
(5) ToThe Director may
issue, revoke or amend certificates under prescribed conditions for: (a) the
discharge of sewage, industrial wastes and other wastes into or adjacent to
state waters; (b) the alteration otherwise of the physical, chemical or
biological properties of state waters; (c) excavation in a wetland; or (d) on
and after October 1, 2001, the conduct of the following activities in a
wetland: (i) new activities to cause draining that significantly alters or
degrades existing wetland acreage or functions, (ii) filling or dumping, (iii)
permanent flooding or impounding, or (iv) new activities that cause significant
alteration or degradation of existing wetland acreage or functions.
(5a) All certificates issued by the BoardDirector
under this chapter shall have fixed terms. The term of a Virginia PollutionPollutant
Discharge Elimination System permit shall not exceed five years. The term of a
Virginia Water Protection Permit shall be based upon the projected duration of
the project, the length of any required monitoring, or other project operations
or permit conditions; however, the term shall not exceed 15 years. The term of
a Virginia Pollution Abatement permit shall not exceed 10 years, except that
the term of a Virginia Pollution Abatement permit for confined animal feeding
operations shall be 10 years. The Department of Environmental Quality shall
inspect all facilities for which a Virginia Pollution Abatement permit has been
issued at least once every five years, except that the Department shall inspect
all facilities covered by the Virginia Pollution Abatement permit for confined
animal feeding operations annually. Department personnel performing inspections
of confined animal feeding operations shall be certified under the voluntary
nutrient management training and certification program established in §
10.1-104.2. The term of a certificate issued by the Boardhereunder
shall not be extended by modification beyond the maximum duration and the
certificate shall expire at the end of the term unless an application for a new
permit has been timely filed as required by the regulations of the Board and
the BoardDirector
is unable, through no fault of the permittee, to issue a new permit before the
expiration date of the previous permit.
(5b) Any certificate issued by the BoardDirector
under this chapter may, after notice and opportunity for a hearing, be amended
or revoked on any of the following grounds or for good cause as may be provided
by the regulations of the Board:
1. The owner has violated any regulation or order of the Board, any condition of a certificate, any provision of
this chapter, or any order of a court, where such violation results in a
release of harmful substances into the environment or poses a substantial
threat of release of harmful substances into the environment or presents a
hazard to human health or the violation is representative of a pattern of
serious or repeated violations which, in the opinion of the BoardDirector,
demonstrates the owner's disregard for or inability to comply with applicable
laws, regulations, or requirements;
2. The owner has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a certificate, or in any other report or document required under this law or under the regulations of the Board;
3. The activity for which the certificate was issued endangers human health or the environment and can be regulated to acceptable levels by amendment or revocation of the certificate; or
4. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the certificate necessary to protect human health or the environment.
(5c) Any certificate issued by the BoardDirector
under this chapter relating to dredging projects governed under Chapter 12 (§
28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 may be
conditioned upon a demonstration of financial responsibility for the completion
of compensatory mitigation requirements. Financial responsibility may be
demonstrated by a letter of credit, a certificate of deposit or a performance
bond executed in a form approved by the Board. If the U.S. Army Corps of
Engineers requires demonstration of financial responsibility for the completion
of compensatory mitigation required for a particular project, then the
mechanism and amount approved by the U.S. Army Corps of Engineers shall be used
to meet this requirement.
(6) ToThe Director may
make investigations and inspections, to ensure compliance with any
certificates, standards, policies, rules, regulations, rulings and special
orders which it may adopt, issue or
establish and to furnish advice, recommendations, or instructions for the
purpose of obtaining such compliance. In recognition of §§ 32.1-164 and
62.1-44.18, the BoardDirector
and the State Department of Health shall enter into a memorandum of
understanding establishing a common format to consolidate and simplify
inspections of sewage treatment plants and coordinate the scheduling of the
inspections. The new format shall ensure that all sewage treatment plants are
inspected at appropriate intervals in order to protect water quality and public
health and at the same time avoid any unnecessary administrative burden on
those being inspected.
(7) ToThe Board may
adopt rules governing the procedure of the Board with respect to: (a)
hearings; (b) the filing of reports;
(c) the issuance of certificates and special orders; and (d)
all other matters relating to procedure; and to amend or cancel any
rule adopted. Public notice of every rule adopted under this section shall be
by such means as the Board may prescribe.
(8a) ToThe Director may
issue special orders to owners (i) who are permitting or causing the pollution,
as defined by § 62.1-44.3, of state waters to cease and desist from such
pollution, (ii) who have failed to construct facilities in accordance with
final approved plans and specifications to construct such facilities in
accordance with final approved plans and specifications, (iii) who have
violated the terms and provisions of a certificate issued by the Board
to comply with such terms and provisions, (iv) who have failed to comply with a
directive from the Board
to comply with such directive, (v) who have contravened duly adopted and promulgated
water quality standards and policies to cease and desist from such
contravention and to comply with such water quality standards and policies,
(vi) who have violated the terms and provisions of a pretreatment permit issued by the Board or by the owner of a publicly
owned treatment works to comply with such terms and provisions or (vii) who
have contravened any applicable pretreatment standard or requirement to comply
with such standard or requirement; and also to issue such orders to require any
owner to comply with the provisions of this chapter and any decision of the BoardDirector.
Orders issued pursuant to this subsection may include civil penalties of up to
$32,500 per violation, not to exceed $100,000 per order. The BoardDirector
may assess penalties under this subsection if (a) the person has been issued at
least two written notices of alleged violation by the Department for the same
or substantially related violations at the same site, (b) such violations have
not been resolved by demonstration that there was no violation, by an order
issued by the Board or the Director, or by other
means, (c) at least 130 days have passed since the issuance of the first notice
of alleged violation, and (d) there is a finding that such violations have
occurred after a hearing conducted in accordance with subdivision (8b). The
actual amount of any penalty assessed shall be based upon the severity of the
violations, the extent of any potential or actual environmental harm, the
compliance history of the facility or person, any economic benefit realized
from the noncompliance, and the ability of the person to pay the penalty. The BoardDirector
shall provide the person with the calculation for the proposed penalty prior to
any hearing conducted for the issuance of an order that assesses penalties
pursuant to this subsection. The issuance of a notice of alleged violation by
the Department shall not be considered a case decision as defined in §
2.2-4001. Any notice of alleged violation shall include a description of each
violation, the specific provision of law violated, and information on the
process for obtaining a final decision or fact finding from the Department on
whether or not a violation has occurred, and nothing in this section shall
preclude an owner from seeking such a determination. Such civil penalties shall
be paid into the state treasury and deposited by the State Treasurer into the
Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except
that civil penalties assessed for violations of Article 9 (§ 62.1-44.34:8 et
seq.) or Article 11 (§ 62.1-44.34:14 et seq.) of this chapter shall be paid
into the Virginia Petroleum Storage Tank Fund in accordance with §
62.1-44.34:11.
(8b) Such special orders are to be issued only after a hearing
before a hearing officer appointed by the Supreme Court in accordance with §
2.2-4020 or, if requested by the person, before a quorum of the Board with at
least 30 days' notice to the affected owners, of the time, place and purpose
thereof, and they shall become effective not less than 15 days after service as
provided in § 62.1-44.12; provided that if the BoardDirector
finds that any such owner is grossly affecting or presents an imminent and
substantial danger to (i) the public health, safety or welfare, or the health
of animals, fish or aquatic life; (ii) a public water supply; or (iii)
recreational, commercial, industrial, agricultural or other reasonable uses, it
may issue, without advance notice or hearing, an emergency special order
directing the owner to cease such pollution or discharge immediately, and shall
provide an opportunity for a hearing, after reasonable notice as to the time
and place thereof to the owner, to affirm, modify, amend or cancel such
emergency special order. If an owner who has been issued such a special order
or an emergency special order is not complying with the terms thereof, the BoardDirector
may proceed in accordance with § 62.1-44.23, and where the order is based on a
finding of an imminent and substantial danger, the court shall issue an
injunction compelling compliance with the emergency special order pending a
hearing by the Board. If an emergency special order requires cessation of a
discharge, the Board shall provide an opportunity for a hearing within 48 hours
of the issuance of the injunction.
(8c) The provisions of this section notwithstanding, the BoardDirector
may proceed directly under § 62.1-44.32 for any past violation or violations of
any provision of this chapter or any regulation duly promulgated hereunder.
(8d) With the consent of any owner who has violated or failed,
neglected or refused to obey any regulation or order of the Board,
any condition of a permit or any provision of this chapter, the BoardDirector
may provide, in an order issued by the BoardDirector
against such person, for the payment of civil charges for past violations in
specific sums not to exceed the limit specified in § 62.1-44.32 (a). Such civil
charges shall be instead of any appropriate civil penalty which could be
imposed under § 62.1-44.32 (a) and shall not be subject to the provisions of §
2.2-514. Such civil charges shall be paid into the state treasury and deposited
by the State Treasurer into the Virginia Environmental Emergency Response Fund
(§ 10.1-2500 et seq.), excluding civil charges assessed for violations of
Article 9 (§ 62.1-44.34:8 et seq.) or 10 (§ 62.1-44.34:10 et seq.) of Chapter
3.1 of this title, or a regulation, administrative or judicial order, or term
or condition of approval relating to or issued under those articles.
The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action or any other remedy possessed by the Board prior to the effective date of said amendments.
(8e) The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.
(8f) Before issuing a special order under subdivision (8a) or
by consent under (8d), with or without an assessment of a civil penalty, to an
owner of a sewerage system requiring corrective action to prevent or minimize
overflows of sewage from such system, the Board shall provide public notice of
and reasonable opportunity to comment on the proposed order. Any such order
under subdivision (8d) may impose civil penalties in amounts up to the maximum
amount authorized in § 309(g) of the Clean Water Act. Any person who comments
on the proposed order shall be given notice of any hearing to be held on the
terms of the order. In any hearing held, such person shall have a reasonable
opportunity to be heard and to present evidence. If no hearing is held before
issuance of an order under subdivision (8d), any person who commented on the
proposed order may file a petition, within 30 days after the issuance of such
order, requesting the BoardDirector
to set aside such order and provide a formal hearing thereon. If the evidence
presented by the petitioner in support of the petition is material and was not
considered in the issuance of the order, the BoardDirector
shall immediately set aside the order, provide a formal hearing, and make such
petitioner a party. If the BoardDirector
denies the petition, the BoardDirector
shall provide notice to the petitioner and make available to the public the
reasons for such denial, and the petitioner shall have the right to judicial
review of such decision under § 62.1-44.29 if he meets the requirements
thereof.
(9) ToThe Director is
authorized to make such rulings under §§ 62.1-44.16, 62.1-44.17
and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by
certified mail as soon as practicable after the BoardDirector
makes them and such rulings to become effective upon such notification.
(10) ToThe Board is
authorized to adopt such regulations as it deems necessary to
enforce the general water quality management program of the Board in all or
part of the Commonwealth, except that a description of provisions of any
proposed regulation which are more restrictive than applicable federal
requirements, together with the reason why the more restrictive provisions are
needed, shall be provided to the standing committee of each house of the
General Assembly to which matters relating to the content of the regulation are
most properly referable.
(11) ToThe Board is authorized to investigate any large-scale killing of fish.
(a) Whenever the Board shall determine that any owner, whether or not he shall have been issued a certificate for discharge of waste, has discharged sewage, industrial waste, or other waste into state waters in such quantity, concentration or manner that fish are killed as a result thereof, it may effect such settlement with the owner as will cover the costs incurred by the Board and by the Department of Game and Inland Fisheries in investigating such killing of fish, plus the replacement value of the fish destroyed, or as it deems proper, and if no such settlement is reached within a reasonable time, the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action.
(b) If the owner is a political subdivision of the Commonwealth, the action may be brought in any circuit court within the territory embraced by such political subdivision. If the owner is an establishment, as defined in this chapter, the action shall be brought in the circuit court of the city or the circuit court of the county in which such establishment is located. If the owner is an individual or group of individuals, the action shall be brought in the circuit court of the city or circuit court of the county in which such person or any of them reside.
(c) For the purposes of this subsection the State Water Control Board shall be deemed the owner of the fish killed and the proceedings shall be as though the State Water Control Board were the owner of the fish. The fact that the owner has or held a certificate issued under this chapter shall not be raised as a defense in bar to any such action.
(d) The proceeds of any recovery had under this subsection shall, when received by the Board, be applied, first, to reimburse the Board for any expenses incurred in investigating such killing of fish. The balance shall be paid to the Board of Game and Inland Fisheries to be used for the fisheries' management practices as in its judgment will best restore or replace the fisheries' values lost as a result of such discharge of waste, including, where appropriate, replacement of the fish killed with game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose.
(e) Nothing in this subsection shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner.
(f) Notwithstanding the foregoing, the provisions of this subsection shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treating such waters for public water supply purposes, except where negligence is shown.
(12) ToThe Board is
authorized to administer programs of financial assistance for
planning, construction, operation, and maintenance of water quality control
facilities for political subdivisions in the Commonwealth.
(13) ToThe Board is
authorized to establish policies and programs for effective
area-wide or basin-wide water quality control and management. The Board may
develop comprehensive pollution abatement and water quality control plans on an
area-wide or basin-wide basis. In conjunction with this, the BoardDirector,
when considering proposals for waste treatment facilities, is to consider the
feasibility of combined or joint treatment facilities and is to ensure that the
approval of waste treatment facilities is in accordance with the water quality
management and pollution control plan in the watershed or basin as a whole. In
making such determinations, the BoardDirector
is to seek the advice of local, regional, or state planning authorities.
(14) ToThe Board is
authorized to establish requirements for the treatment of sewage,
industrial wastes and other wastes that are consistent with the purposes of
this chapter; however, no treatment shall be less than secondary or its
equivalent, unless the owner can demonstrate that a lesser degree of treatment
is consistent with the purposes of this chapter.
(15) ToThe Board is
authorized to promote and establish requirements for the
reclamation and reuse of wastewater that are protective of state waters and
public health as an alternative to directly discharging pollutants into waters of
the state. The requirements shall address various potential categories of reuse
and may include recommendations to the Director for general
permits andthat
provide for greater flexibility and less stringent requirements commensurate
with the quality of the reclaimed water and its intended use. The requirements
shall be developed in consultation with the Department of Health and other
appropriate state agencies. This authority shall not be construed as conferring
upon the Board any power or duty duplicative of those of the State Board of
Health.
(16) ToThe Board is
authorized to establish and implement policies and programs to
protect and enhance the Commonwealth's wetland resources. Regulatory programs
shall be designed to achieve no net loss of existing wetland acreage and
functions. Voluntary and incentive-based programs shall be developed to achieve
a net resource gain in acreage and functions of wetlands. The Board shall seek
and obtain advice and guidance from the Virginia Institute of Marine Science in
implementing these policies and programs.
(17) The Director is authorized to issue, reissue, revoke, terminate, modify, amend, and enforce any permits, licenses, and certificates, including variances and exemptions thereto, for activities subject to provisions of this chapter.
§ 62.1-44.15:01. Localities particularly affected.
A. After June 30, 1994, before promulgatingthe
Board adopts any regulation under consideration or grantingthe
Director grants any variance to an existing regulation,
or issuingissues
any permit, if the Board or Director finds that there are
localities particularly affected by the regulation, variance or permit, the
Board or Director shall:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed action, which at a minimum shall include information on the specific pollutants involved and the total quantity of each that may be discharged.
2. Mail the notice to the chief elected official and chief administrative officer and planning district commission for those localities.
Written comments shall be accepted by the Board or Director for at least 15 days after any hearing on the regulation, variance or permit, unless the Board votes or the Director determines to shorten the period.
For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material water quality impact that would not be experienced by other localities.
B. On or after January 1, 2007, the Board shall ensure that all wetland inventory maps that identify the location of wetlands in the Commonwealth and that are maintained by the Board be made readily available to the public. The Board shall notify the circuit court clerk's office and other appropriate officials in each locality of the availability of the wetland inventory maps and request that the locality provide information in the location where the land records of the locality are maintained on the availability of the wetland inventory maps as well as the potential Virginia Water Protection Permit requirements.
§ 62.1-44.15:1. Limitation on power to require construction of sewerage systems or sewage or other waste treatment works.
Nothing contained in this chapter shall be construed to empower the Board or Director to require the Commonwealth, or any political subdivision thereof, or any authority created under the provisions of § 15.2-5102 or §§ 15.2-5152 through 15.2-5158, to construct any sewerage system, sewage treatment works, or water treatment plant waste treatment works or system necessary to (1) upgrade the present level of treatment in existing systems or works to abate existing pollution of state waters, or (2) expand a system or works to accommodate additional growth, unless the Board shall have previously committed itself to provide financial assistance from federal and state funds equal to the maximum amount provided for under § 8 or other applicable sections of the Federal Water Pollution Control Act (P.L. 84-660, as amended), or unless the Commonwealth or political subdivision or authority voluntarily agrees, or is directed by the Board with the concurrence of the Governor, to proceed with such construction, subject to reimbursement under § 8, or other applicable sections of such federal act.
The foregoing restriction shall not apply to those cases where existing sewerage systems or sewage or other waste treatment works cease to perform in accordance with their approved certificate requirements.
Nothing contained in this chapter shall be construed to empower the Board or Director to require the Commonwealth, or any political subdivision thereof, to upgrade the level of treatment in any works to a level more stringent than that required by applicable provisions of the Federal Water Pollution Control Act, as amended.
§ 62.1-44.15:1.1. Special orders; penalties.
The BoardDirector
is authorized to issue special orders in compliance with the Administrative
Process Act (§ 2.2-4000 et seq.) requiring that an owner file with the BoardDirector
a plan to abate, control, prevent, remove, or contain any substantial and imminent
threat to public health or the environment that is reasonably likely to occur
if such facility ceases operations. Such plan shall also include a
demonstration of financial capability to implement the plan. Financial
capability may be demonstrated by the establishment of an escrow account, the
creation of a trust fund to be maintained within the Board, submission of a
bond, corporate guarantee based upon audited financial statements, or such
other instruments as the Board may deem appropriate. The Board may require that
such plan and instruments be updated as appropriate. The BoardDirector
shall give due consideration to any plan submitted by the owner in accordance
with §§ 10.1-1309.1, 10.1-1410, and 10.1-1428, in determining the necessity for
and suitability of any plan submitted under this section.
For the purposes of this section, "ceases operation" means to cease conducting the normal operation of a facility which is regulated under this chapter under circumstances where it would be reasonable to expect that such operation will not be resumed by the owner at the facility. The term shall not include the sale or transfer of a facility in the ordinary course of business or a permit transfer in accordance with Board regulations.
Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be liable to the Commonwealth and any political subdivision thereof for the costs incurred in abating, controlling, preventing, removing, or containing such harm or threat.
Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be guilty of a Class 4 felony.
§ 62.1-44.15:3. When application for permit considered complete.
A. No application submitted to the Board
for a new individual Virginia Pollutant Discharge Elimination
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.
The county, city, or town shall inform in writing the applicant and the BoardDirector
of the discharging facility's compliance or noncompliance not more than thirty
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 thirty days, the requirement for such
notification is waived. The provisions of this subsection shall not apply to
any discharge for which a valid certificate had been issued prior to March 10,
2000.
B. No application for a certificate to discharge sewage into
or adjacent to state waters from a privately owned wastewater treatment system
serving fifty or more residences shall be considered complete unless the
applicant has provided the Executive Director 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.
§ 62.1-44.15:4. Notification of local governments and property owners.
A. Upon determining that there has been a violation of a
regulation promulgated under this chapter and such violation poses an imminent
threat to the health, safety or welfare of the public, the Executive Director
shall immediately notify the chief administrative officer of any potentially
affected local government. Neither the Executive Director,
the Commonwealth, nor any employee of the Commonwealth shall be liable for a
failure to provide, or a delay in providing, the notification required by this
subsection.
B. Upon receiving a nomination of a waterway or segment of a waterway for designation as an exceptional state water pursuant to the Board's antidegradation policy, as required by 40 C.F.R. 131.12, the Board shall notify each locality in which the waterway or segment lies and shall make a good faith effort to provide notice to impacted riparian property owners. The written notice shall include, at a minimum: (i) a description of the location of the waterway or segment; (ii) the procedures and criteria for designation as well as the impact of designation; (iii) the name of the person making the nomination; and (iv) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the nomination and the waterway or segment. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the Commissioners of the Revenue or the tax assessor's office of the affected jurisdictions upon request by the Board. After receipt of the notice of the nomination localities shall be provided sixty days to comment on the consistency of the nomination with the locality's comprehensive plan.
C. Upon determining that a waterway or any segment of a
waterway does not meet its water quality standard use designation as set out in
the Board's regulations and as required by 1313 (d) of the federal Clean Water
Act (33 U.S.C. 1251 et seq.) and 40 C.F.R. 130.7 (b), the BoardDirector
shall notify each locality in which the waterway or segment lies. The written
notification shall include, at a minimum: (i) a description of the reasons the
waters do not meet the water quality standard including specific parameters and
criteria not met; (ii) a layman's description of the location of the waters;
(iii) the known sources of the pollution; and (iv) the name of a contact person
at the Department of Environmental Quality who is knowledgeable about the
failure of the waterway or segment to meet the standards. After receipt of the
notification, local governments shall have thirty days to comment.
D. Upon receipt of an application for the issuance of a new or
modified permit other than those for agricultural production or aquacultural
production activities, the BoardDirector
shall notify, in writing, the locality wherein the discharge does or is
proposed to take place of, at a minimum: (i) the name of the applicant; (ii)
the nature of the application and proposed discharge; (iii) the availability
and timing of any comment period; and (iv) upon request, any other information
known to, or in the possession of, the Board or the Department
regarding the applicant not required to be held confidential by this chapter.
The BoardDirector
shall make a good faith effort to provide this same notice and information to
(i) each locality and riparian property owner to a distance one quarter mile
downstream and one quarter mile upstream or to the fall line whichever is
closer on tidal waters, and (ii) each locality and riparian property owner to a
distance one half mile downstream on nontidal waters. Distances shall be
measured from the point, or proposed point, of discharge. If the receiving
river, at the point or proposed point of discharge, is two miles wide or
greater, the riparian property owners on the opposite shore need not be
notified. Notice to property owners shall be based on names and addresses taken
from local tax rolls. Such names and addresses shall be provided by the
Commissioners of the Revenue or the tax assessor's office of the affected
jurisdictions upon request by the BoardDirector.
E. Upon the commencement of public notice of an enforcement
action pursuant to this chapter, the BoardDirector
shall notify, in writing, the locality where the alleged offense has or is
taking place of: (i) the name of the alleged violator; (ii) the facts of the
alleged violation; (iii) the statutory remedies for the alleged violation; (iv)
the availability and timing of any comment period; and (v) the name of a
contact person at the Department of Environmental Quality who is knowledgeable
about the alleged violation.
F. The comment periods established in subsections B and C shall in no way impact a locality's ability to comment during any additional comment periods established by the Board.
§ 62.1-44.15:5.01. Coordinated review of water resources projects.
A. Applications for water resources projects that require an individual Virginia Water Protection Permit and a Virginia Marine Resources permit under § 28.2-1205 shall be submitted and processed through a joint application and review process.
B. The Director and the Commissioner of the Virginia Marine Resources Commission, in consultation with the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, the Department of Historic Resources, the Department of Health, the Department of Conservation and Recreation, the Virginia Department of Agriculture and Consumer Services, and any other appropriate or interested state agency, shall coordinate the joint review process to ensure the orderly evaluation of projects requiring both permits.
C. The joint review process shall include, but not be limited
to, provisions to ensure that: (i) the initial application for the project
shall be advertised simultaneously by the Department of Environmental Quality
and the Virginia Marine Resources Commission; (ii) project reviews shall be
completed by all state agencies that have been asked to review and provide
comments, within 45 days of project notification by the Department of
Environmental Quality and the Virginia Marine Resources Commission; (iii) the BoardDirector
and the Virginia Marine Resources Commission shall coordinate permit issuance
and, to the extent practicable, shall take action on the permit application no
later than one year after the agencies have received complete applications;
(iv) to the extent practicable, the BoardDirector
and the Virginia Marine Resources Commission shall take action concurrently,
but no more than six months apart; and (v) upon taking its final
action on each permit, the BoardDirector
and the Virginia Marine Resources Commission shall provide each other with
notification of their actions and any and all supporting information, including
any background materials or exhibits used in the application.
D. If requested by the applicant, the Department of Environmental Quality shall convene a preapplication review panel to assist applicants for water resources projects in the early identification of issues related to the protection of beneficial instream and offstream uses of state waters. The Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, the Department of Conservation and Recreation, and the Department of Environmental Quality shall participate in the preapplication review panel by providing information and guidance on the potential natural resource impacts and regulatory implications of the options being considered by the applicant. However, the participation by these agencies in such a review process shall not limit any authority they may exercise pursuant to state and federal laws or regulations.
§ 62.1-44.15:5.1. General permit for certain water quality improvement activities.
A. The BoardDirector
shall coordinate the development of a adopt
and issue a general permit for
activities such as bioengineered streambank stabilization projects and
livestock stream crossings that: (i) are coverable by the Nationwide Permit
Program (33 C.F.R. Part 330) of the United States Army Corps of Engineers and
for which certification has not been waived by the BoardDirector;
(ii) are conservation practices designed and supervised by a soil and water
conservation district; (iii) meet the design standards of the Department of
Conservation and Recreation and the United States Department of Agriculture's
Natural Resource Conservation Service; and (iv) are intended to improve water
quality. The development of the general permit shall be exempt from Article 2
(§ 2.2-4006 et seq.) of the Administrative Process Act.
B. The development of the general permit shall be a coordinated effort between the Department of Environmental Quality, the Virginia Marine Resources Commission and such other agencies as may be needed to develop a single, unified, process that will expedite the implementation of the projects described in subsection A and unify and streamline the permitting process for such projects.
C. A general permit pursuant to this section shall be promulgated as final by July 1, 1998.
§ 62.1-44.15:6. Permit fee regulations.
A. The Board shall promulgate regulations establishing a fee
assessment and collection system to recover a portion of the State Water
Control Board's, the Department of Game and Inland Fisheries' and the
Department of Conservation and Recreation's direct and indirect costs
associated with the processing of an application to issue, reissue, amend or
modify any permit or certificate, which the BoardDirector
has authority to issue under this chapter and Chapters 24 (§ 62.1-242 et seq.)
and 25 (§ 62.1-254 et seq.) of this title, from the applicant for such permit
or certificate for the purpose of more efficiently and expeditiously processing
permits. The fees shall be exempt from statewide indirect costs charged and
collected by the Department of Accounts. The Board shall have no authority to
charge such fees where the authority to issue such permits has been delegated to
another agency that imposes permit fees.
B1. Permit fees charged an applicant for a Virginia Pollutant
Discharge Elimination System permit or a Virginia Pollution Abatement permit
shall reflect the average time and complexity of processing a permit in each of
the various categories of permits and permit actions. However, notwithstanding
any other provision of law, in no instance shall the Board charge a fee for a
permit pertaining to a farming operation engaged in production for market or
for a permit pertaining to maintenance dredging for federal navigation channels
or other Corps of Engineers sponsored dredging projects or for the regularly
scheduled renewal of an individual permit for an existing facility. Fees shall
be charged for a major modification or reissuance of a permit initiated by the
permittee that occurs between permit issuance and the stated expiration date.
No fees shall be charged for a modification or amendment made at the Board'sDirector's
initiative. In no instance shall the Board exceed the following amounts for the
processing of each type of permit/certificate category:
Type of Permit/Certificate Category Maximum Amount
1. Virginia Pollutant Discharge Elimination System
Major Industrial $24,000
Major Municipal $21,300
Minor Industrial with nonstandard $10,300
limits
Minor Industrial with standard limits $ 6,600
Minor Municipal greater than 100,000 $7,500
gallons per day
Minor Municipal 10,001-100,000 gallons $6,000
per day
Minor Municipal 1,000-10,000 gallons $5,400
per day
Minor Municipal less than 1,000 $2,000
gallons per day
General-industrial stormwater $ 500
management
General-stormwater management-phase I $ 500
land clearing
General-stormwater management-phase II $ 300
land clearing
General-other $ 600
2. Virginia Pollution Abatement
Industrial/Wastewater 10 or more $15,000
inches per year
Industrial/Wastewater less than 10 $10,500
inches per year
Industrial/Sludge $ 7,500
Municipal/Wastewater $13,500
Municipal/Sludge $ 7,500
General Permit $ 600
Other $ 750
The fee for the major modification of a permit or certificate that occurs between the permit issuance and expiration dates shall be 50 percent of the maximum amount established by this subsection. No fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, "minor modifications" or "minor amendments" means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.
B2. Each permitted facility shall pay a permit maintenance fee to the Board by October 1 of each year, not to exceed the following amounts:
Type of Permit/Certificate Category Maximum Amount
1. Virginia Pollutant Discharge Elimination System
Major Industrial $4,800
Major Municipal greater than 10 $4,750
million gallons per day
Major Municipal 2-10 million gallons $4,350
per day
Major Municipal less than 2 million $3,850
gallons per day
Minor Industrial with nonstandard $2,040
limits
Minor Industrial with standard limits $1,320
Minor Industrial water treatment system $1,200
Minor Municipal greater than 100,000 $1,500
gallons per day
Minor Municipal 10,001-100,000 gallons $1,200
per day
Minor Municipal 1,000-10,000 gallons $1,080
per day
Minor Municipal less than 1,000 $ 400
gallons per day
2. Virginia Pollution Abatement
Industrial/Wastewater 10 or more $3,000
inches per year
Industrial/Wastewater less than 10 $2,100
inches per year
Industrial/Sludge $3,000
Municipal/Wastewater $2,700
Municipal/Sludge $1,500
An additional permit maintenance fee of $1,000 shall be collected from facilities in a toxics management program and an additional permit maintenance fee shall be collected from facilities that have more than five process wastewater discharge outfalls. Permit maintenance fees shall be collected annually and shall be remitted by October 1 of each year. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the permit maintenance fees for permits held as of April 1, 2004, shall not exceed $20,000 per year. No permit maintenance fee shall be assessed for facilities operating under a general permit or for permits pertaining to a farming operation engaged in production for market.
B3. Permit application fees charged for Virginia Water Protection Permits, ground water withdrawal permits, and surface water withdrawal permits shall reflect the average time and complexity of processing a permit in each of the various categories of permits and permit actions and the size of the proposed impact. Only one permit fee shall be assessed for a water protection permit involving elements of more than one category of permit fees under this section. The fee shall be assessed based upon the primary purpose of the proposed activity. In no instance shall the Board charge a fee for a permit pertaining to maintenance dredging for federal navigation channels or other U.S. Army Corps of Engineers-sponsored dredging projects, and in no instance shall the Board exceed the following amounts for the processing of each type of permit/certificate category:
Type of Permit Maximum Amount
1. Virginia Water Protection
Individual-wetland impacts $2,400 plus
$220 per
1/10 acre of
impact over
two
Individual-minimum acres, not to
exceed $60,000
instream flow $25,000
Individual-reservoir $35,000
Individual-nonmetallic mineral mining $7,500
General-less than 1/10 acre impact $0
General-1/10 to 1/2 acre impact $600
General-greater than 1/2 to one acre
impact $1,200
General-greater than one acre
to two acres of impact $120 per 1/10
acre of impact
2. Ground Water Withdrawal $6,000
3. Surface Water Withdrawal $12,000
No fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, "minor modifications" or "minor amendments" means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.
C. When promulgating regulations establishing permit fees, the Board shall take into account the permit fees charged in neighboring states and the importance of not placing existing or prospective industries in the Commonwealth at a competitive disadvantage.
D. Beginning January 1, 1998, and January 1 of every even-numbered year thereafter, the Board shall make a report on the implementation of the water permit program to the Senate Committee on Agriculture, Conservation and Natural Resources, the Senate Committee on Finance, the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources and the House Committee on Finance. The report shall include the following: (i) the total costs, both direct and indirect, including the costs of overhead, water quality planning, water quality assessment, operations coordination, and surface water and ground water investigations, (ii) the total fees collected by permit category, (iii) the amount of general funds allocated to the Board, (iv) the amount of federal funds received, (v) the Board's use of the fees, the general funds, and the federal funds, (vi) the number of permit applications received by category, (vii) the number of permits issued by category, (viii) the progress in eliminating permit backlogs, (ix) the timeliness of permit processing, and (x) the direct and indirect costs to neighboring states of administering their water permit programs, including what activities each state categorizes as direct and indirect costs, and the fees charged to the permit holders and applicants.
E. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Board.
F. Permit fee schedules shall apply to permit programs in
existence on July 1, 1992, any additional permits that may be required by the
federal government and administered by the BoardDirector,
or any new permit required pursuant to any law of the Commonwealth.
G. The Board is authorized to promulgate regulations establishing a schedule of reduced permit fees for facilities that have established a record of compliance with the terms and requirements of their permits and shall establish criteria by regulation to provide for reductions in the annual fee amount assessed for facilities accepted into the Department's programs to recognize excellent environmental performance.
§ 62.1-44.15:20. Virginia water protection permit.
A. Except in compliance with an individual or general Virginia Water Protection Permit issued in accordance with this article, it shall be unlawful to:
1. Excavate in a wetland;
2. On or after October 1, 2001, conduct the following in a wetland:
a. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
b. Filling or dumping;
c. Permanent flooding or impounding; or
d. New activities that cause significant alteration or degradation of existing wetland acreage or functions; or
3. Alter the physical, chemical, or biological properties of
state waters and make them detrimental to the public health, animal or aquatic
life, or to the uses of such waters for domestic or industrial consumption, or
for recreation, or for other uses unless authorized by a certificate issued by the Board;
B. The BoardDirector
shall, after providing an opportunity for public comment, issue a Virginia
Water Protection Permit if ithe
has determined that the proposed activity is consistent with the provisions of
the Clean Water Act and the State Water Control Law and will protect instream
beneficial uses.
C. Prior to the issuance of a Virginia Water Protection
Permit, the BoardDirector
shall consult with and give full consideration to the written recommendations
of the following agencies: the Department of Game and Inland Fisheries, the
Department of Conservation and Recreation, the Virginia Marine Resources
Commission, the Department of Health, the Department of Agriculture and
Consumer Services, and any other interested and affected agencies. Such
consultation shall include the need for balancing instream uses with offstream
uses. Agencies may submit written comments on proposed permits within 45 days
after notification by the BoardDirector.
If written comments are not submitted by an agency within this time period, the
BoardDirector
shall assume that the agency has no comments on the proposed permit.
D. Issuance of a Virginia Water Protection Permit shall constitute the certification required under § 401 of the Clean Water Act.
E. No locality may impose wetlands permit requirements duplicating state or federal wetlands permit requirements.
F. The BoardDirector
shall assess compensation implementation, inventory permitted wetland impacts,
and work to prevent unpermitted impacts to wetlands.
§ 62.1-44.15:21. Impacts to wetlands.
A. Permits shall address avoidance and minimization of wetland
impacts to the maximum extent practicable. A permit shall be issued only if the
BoardDirector
finds that the effect of the impact, together with other existing or proposed
impacts to wetlands, will not cause or contribute to a significant impairment
of state waters or fish and wildlife resources.
B. Permits shall contain requirements for compensating impacts on wetlands. Such compensation requirements shall be sufficient to achieve no net loss of existing wetland acreage and functions and may be met through wetland creation or restoration, purchase or use of mitigation bank credits pursuant to § 62.1-44.15:23, or contribution to a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions. When utilized in conjunction with creation, restoration, or mitigation bank credits, compensation may incorporate (i) preservation or restoration of upland buffers adjacent to wetlands or other state waters or (ii) preservation of wetlands.
C. The BoardDepartment
shall utilize the U.S. Army Corps of Engineers' "Wetlands Delineation
Manual, Technical Report Y-87-1, January 1987, Final Report" as the
approved method for delineating wetlands. The Board shall adopt appropriate
guidance and regulations to ensure consistency with the U.S. Army Corps of
Engineers' implementation of delineation practices. The Board shall also adopt
guidance and regulations for review and approval of the geographic area of a
delineated wetland. Any such approval of a delineation shall remain effective
for a period of five years; however, if the BoardDirector
issues a permit pursuant to this article for an activity in the delineated
wetland within the five-year period, the approval shall remain effective for
the term of the permit. Any delineation accepted by the U.S. Army Corps of
Engineers as sufficient for its exercise of jurisdiction pursuant to § 404 of
the Clean Water Act shall be determinative of the geographic area of that
delineated wetland.
D. The BoardDirector
shall developadopt and issue general permits for such activities in wetlands as it
deems appropriate. General permits shall include such terms and conditions as
the BoardDirector
deems necessary to protect state waters and fish and wildlife resources from
significant impairment. The BoardDirector
is authorized to waive the requirement for a general permit or deem an activity
in compliance with a general permit when it determines that an isolated wetland
is of minimal ecological value. The BoardDirector
shall develop general permits for:
1. Activities causing wetland impacts of less than one-half of an acre;
2. Facilities and activities of utilities and public service
companies regulated by the Federal Energy Regulatory Commission or State
Corporation Commission. No BoardDepartment
action on an individual or general permit for such facilities shall alter the
siting determination made through Federal Energy Regulatory Commission or State
Corporation Commission approval. The Board and the State Corporation Commission
shall develop a memorandum of agreement pursuant to §§ 56-46.1, 56-265.2,
56-265.2:1, and 56-580 to ensure that consultation on wetland impacts occurs
prior to siting determinations;
3. Coal, natural gas, and coalbed methane gas mining activities authorized by the Department of Mines, Minerals and Energy, and sand mining;
4. Virginia Department of Transportation or other linear transportation projects; and
5. Activities governed by nationwide or regional permits
approved by the BoardDirector
and issued by the U.S. Army Corps of Engineers. Conditions contained in the
general permits shall include, but not be limited to, filing with the BoardDirector
any copies of preconstruction notification, postconstruction report, and
certificate of compliance required by the U.S. Army Corps of Engineers.
E. Within 15 days of receipt of an individual permit application,
the BoardDirector
shall review the application for completeness and either accept the application
or request additional specific information from the applicant. Within 120 days
of receipt of a complete application, the BoardDirector
shall issue the permit, issue the permit with conditions, deny the permit, or
decide to conduct a public meeting or hearing. If a public meeting or hearing
is held, it shall be held within 60 days of the decision to conduct such a
proceeding, and a final decision as to the permit shall be made within 90 days
of completion of the public meeting or hearing.
F. Within 15 days of receipt of a general permit application,
the BoardDirector
shall review the application for completeness and either accept the application
or request additional specific information from the applicant. A determination
that an application is complete shall not mean the BoardDirector
will issue the permit but means only that the applicant has submitted
sufficient information to process the application. The BoardDirector
shall deny, approve, or approve with conditions any application for coverage
under a general permit within 45 days of receipt of a complete preconstruction
application. The application shall be deemed approved if the BoardDirector
fails to act within 45 days.
G. No Virginia Water Protection Permit shall be required for impacts to wetlands caused by activities governed under Chapter 13 (§ 28.2-100 et seq.) of Title 28.2 or normal agricultural activities or normal silvicultural activities. This section shall also not apply to normal residential gardening, lawn and landscape maintenance, or other similar activities that are incidental to an occupant's ongoing residential use of property and of minimal ecological impact. The Board shall develop criteria governing this exemption and shall specifically identify the activities meeting these criteria in its regulations.
§ 62.1-44.15:22. Water withdrawals and preservation of instream flow.
A. Conditions contained in a Virginia Water Protection Permit may include but are not limited to the volume of water which may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses. Domestic and other existing beneficial uses shall be considered the highest priority uses.
B. Notwithstanding any other provision, no Virginia Water Protection Permit shall be required for any water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal. No Virginia Water Protection Permit shall be required for any water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.
C. The BoardDirector
may issue an Emergency Virginia Water Protection Permit for a new or increased
withdrawal when ithe
finds that because of drought there is an insufficient public drinking water
supply that may result in a substantial threat to human health or public
safety. Such a permit may be issued to authorize the proposed activity only
after conservation measures mandated by local or state authorities have failed
to protect public health and safety and notification of the agencies designated
in § 62.1-44.15:20 C and only for the amount of water necessary to protect
public health and safety. These agencies shall have five days to provide
comments or written recommendations on the issuance of the permit.
Notwithstanding the provisions of § 62.1-44.15:20 B, no public comment shall be
required prior to issuance of the emergency permit. Not later than 14 days
after the issuance of the emergency permit, the permit holder shall apply for a
Virginia Water Protection Permit authorized under the other provisions of this
section. The application for the Virginia Water Protection Permit shall be
subject to public comment for a period established by the BoardDirector.
Any Emergency Virginia Water Protection Permit issued under this section shall
be valid until the BoardDirector
approves or denies the subsequent request for a Virginia Water Protection
Permit or for a period of one year, whichever occurs sooner. The fee for the
emergency permit shall be 50 percent of the fee charged for a comparable
Virginia Water Protection Permit.
§ 62.1-44.15:23. Wetland and stream mitigation banks.
A. When a Virginia Water Protection Permit is conditioned upon
compensatory mitigation for adverse impacts to wetlands or streams, the
applicant may be permitted to satisfy all or part of such mitigation
requirements by the purchase or use of credits from any wetland or stream
mitigation bank in the Commonwealth, or in Maryland on property wholly
surrounded by and located in the Potomac River if the mitigation banking
instrument provides that the BoardDirector
shall have the right to enter and inspect the property and that the mitigation
bank instrument and the contract for the purchase or use of such credits may be
enforced in the courts of the Commonwealth, including any banks owned by the
permit applicant, that has been approved and is operating in accordance with
applicable federal and state guidance, laws, or regulations for the
establishment, use, and operation of mitigation banks as long as: (1) the bank
is in the same U.S.G.S. cataloging unit, as defined by the Hydrologic Unit Map
of the United States (U.S.G.S. 1980), as the impacted site or in an adjacent
cataloging unit within the same river watershed or it meets all the conditions
found in clauses (i) through (iv) and either clause (v) or (vi) of this
section; (2) the bank is ecologically preferable to practicable onsite and
offsite individual mitigation options as defined by federal wetland
regulations; and (3) the banking instrument, if approved after July 1, 1996,
has been approved by a process that included public review and comment. When the
bank is not located in the same cataloging unit or adjacent cataloging unit
within the same river watershed as the impacted site, the purchase or use of
credits shall not be allowed unless the applicant demonstrates to the
satisfaction of the Department of Environmental Quality that (i) the impacts
will occur as a result of a Virginia Department of Transportation linear
project or as the result of a locality project for a locality whose
jurisdiction crosses multiple river watersheds; (ii) there is no practical same
river watershed mitigation alternative; (iii) the impacts are less than one
acre in a single and complete project within a cataloging unit; (iv) there is
no significant harm to water quality or fish and wildlife resources within the
river watershed of the impacted site; and either (v) impacts within the
Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as
close as possible to the impacted site or (vi) impacts within U.S.G.S.
cataloging units 02080108, 02080208, and 03010205, as defined by the Hydrologic
Unit Map of the United States (U.S.G.S. 1980), are mitigated in-kind within
those hydrologic cataloging units, as close as possible to the impacted site.
B. The Department of Environmental Quality is authorized to serve as a signatory to agreements governing the operation of mitigation banks. The Commonwealth, its officials, agencies, and employees shall not be liable for any action taken under any agreement developed pursuant to such authority.
C. State agencies are authorized to purchase credits from mitigation banks.
§ 62.1-44.16. Industrial wastes.
(1) Any owner who erects, constructs, opens, reopens, expands
or employs new processes in or operates any establishment from which there is a
potential or actual discharge of industrial wastes or other wastes to state
waters shall first provide facilities approved by the BoardDirector
for the treatment or control of such industrial wastes or other wastes.
Application for such discharge shall be made to the BoardDirector
and shall be accompanied by pertinent plans, specifications, maps, and such
other relevant information as may be required, in scope and details
satisfactory to the BoardDirector.
(a) Public notice of every such application shall be given by
notice published once a week for two successive weeks in a newspaper of general
circulation in the county or city where the certificate is applied for or by
such other means as the BoardDirector
may prescribe.
(b) The BoardDirector
shall review the application and the information that accompanies it as soon as
practicable and making a ruling within a period of four months from the date
the application is filed with the BoardDirector
approving or disapproving the application and stating the grounds for
conditional approval or disapproval. If the application is approved, the BoardDirector
shall grant a certificate for the discharge of the industrial wastes or other
wastes into state waters or for the other alteration of the physical, chemical
or biological properties of state waters, as the case may be. If the
application is disapproved, the BoardDirector
shall notify the owner as to what measures, if any, the owner may take to
secure approval.
(2) (a) Any owner operating under a valid certificate issued
by the Board who fails to meet water quality standards established
by the Board solely as a result of a change in water quality standards or in
the law shall provide the necessary facilities approved by the BoardDirector
within a reasonable time to meet such new requirements; provided, however, that
such facilities shall be reasonable and practicable of attainment giving
consideration to the public interest and the equities of the case. The BoardDirector
may amend such certificate, or revoke it and issue a new one to reflect such
facilities after proper hearing, with at least thirty days' notice to the owner
of the time, place and purpose thereof. If such revocation or amendment of a
certificate is mutually agreeable to the BoardDirector
and the owner involved, the hearing and notice may be dispensed with.
(b) The BoardDirector
shall revoke the certificate in case of a failure to comply with all such
requirements and may issue a special order under subdivisions (8a), (8b), and
(8c) of § 62.1-44.15 (8).
§ 62.1-44.17. Other wastes.
(1) Any owner who handles, stores, distributes or produces
other wastes as defined in § 62.1-44.3, any owner who causes or permits same to
be handled, stored, distributed or produced or any owner upon or in whose
establishment other wastes are handled, stored, distributed or produced shall
upon request of the BoardDirector
install facilities approved by the BoardDirector
or adopt such measures approved by the BoardDirector
as are necessary to prevent the escape, flow or discharge into any state waters
when the escape, flow or discharge of such other wastes into any state waters
would cause pollution of such state waters.
(2) Any owner under this section requested by the BoardDirector
to provide facilities or adopt such measures shall make application therefor to
the BoardDirector.
Such application shall be accompanied by a copy of pertinent plans,
specifications, maps, and such other relevant information as may be required,
in scope and details satisfactory to the BoardDirector.
(3) The BoardDirector
shall review the application and the information that accompanies it as soon as
practicable and make a ruling within a period of four months from the date the
application is filed with the BoardDirector
approving or disapproving the application and stating the grounds for
conditional approval or disapproval. If the application is approved, the BoardDirector
shall grant a certificate for the handling, storing, distribution or production
of such other wastes. If the application is disapproved, the BoardDirector
shall notify the owner as to what measures the owner may take to secure
approval.
§ 62.1-44.17:1.1. Poultry waste management program.
A. As used in this section, unless the context requires a different meaning:
"Commercial poultry processor" means any animal food manufacturer, as defined in § 3.1-884.18, that contracts with poultry growers for the raising of poultry.
"Confined poultry feeding operation" means any confined animal feeding operation with 200 or more animal units of poultry.
"Nutrient management plan" means a plan developed or approved by the Department of Conservation and Recreation that requires proper storage, treatment and management of poultry waste, including dry litter, and limits accumulation of excess nutrients in soils and leaching or discharge of nutrients into state waters.
"Poultry grower" means any person who owns or operates a confined poultry feeding operation.
B. The Board shall develop a regulatory program governing the storage, treatment and management of poultry waste, including dry litter, that:
1. Requires the development and implementation of nutrient management plans for any person owning or operating a confined poultry feeding operation;
2. Provides for waste tracking and accounting; and
3. Ensures proper storage of waste consistent with the terms and provisions of a nutrient management plan.
C. The program shall include, at a minimum:
1. Provisions for permitting confined poultry feeding
operations under a general permit; however, the BoardDirector
may require an individual permit upon determining that an operation is in
violation of the program developed under this section;
2. Provisions requiring that:
a. Nitrogen application rates contained in nutrient management plans developed pursuant to this section shall not exceed crop nutrient needs as determined by the Department of Conservation and Recreation. The application of poultry waste shall be managed to minimize runoff, leaching, and volatilization losses, and reduce adverse water quality impacts from nitrogen;
b. For all nutrient management plans developed pursuant to this section after October 1, 2001, phorous application rates shall not exceed the greater of crop nutrient needs or crop nutrient removal, as determined by the Department of Conservation and Recreation. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorus;
c. By December 31, 2005, the Department of Conservation and Recreation, in consultation with the Department of Environmental Quality, shall (i) complete an examination of current developments in scientific research and technology that shall include a review of land application of poultry waste, soil nutrient retention capacity, and water quality degradation and (ii) adopt and implement regulatory or other changes, if any, to its nutrient management plan program that it concludes are appropriate as a result of this examination; and
d. Notwithstanding subdivision 2 b, upon the effective date of the Department of Conservation and Recreation's revised regulatory criteria and standards governing phosphorus application rates adopted pursuant to subdivision 2 c, or on October 31, 2005, whichever is later, phosphorous application rates for all nutrient management plans developed pursuant to this section shall conform solely to such regulatory criteria and standards adopted by the Department of Conservation and Recreation to protect water quality or to reduce soil concentrations of phosphorus or phosphorous loadings. The application of poultry waste shall be managed to minimize runoff and leaching and reduce adverse water quality impacts from phosphorus.
D. The program shall reflect Board consideration of existing state-approved nutrient management plans and existing general permit programs for other confined animal feeding operations, and may include such other provisions as the Board determines appropriate for the protection of state waters.
E. After October 1, 2001, all persons owning or operating a confined poultry feeding operation shall operate in compliance with the provisions of this section and any regulations promulgated thereunder.
F. Any person violating this section shall be subject only to the provisions of §§ 62.1-44.23 and 62.1-44.32 (a), except that any civil penalty shall not exceed $2,500 for any confined animal feeding operation covered by a Virginia Pollution Abatement permit.
G. On or before January 1, 2000, or prior to commencing
operations, each commercial poultry processor operating in the Commonwealth
shall file with the BoardDirector
a plan under which the processor, either directly or under contract with a
third party, shall:
1. Provide technical assistance to the poultry growers with whom it contracts on the proper management and storage of poultry waste in accordance with best management practices;
2. Provide education programs on poultry waste nutrient management for the poultry growers with whom it contracts as well as for poultry litter brokers and persons utilizing poultry waste;
3. Provide a toll-free hotline and advertising program to assist poultry growers with excess amounts of poultry waste to make available such waste to persons in other areas who can use such waste as a fertilizer consistent with the provisions of subdivision C 2 or for other alternative purposes;
4. Participate in the development of a poultry waste transportation and alternative use equal matching grant program between the Commonwealth and commercial poultry processors to (i) facilitate the transportation of excess poultry waste in the possession of poultry growers with whom it contracts to persons in other areas who can use such waste as a fertilizer consistent with the provisions of subdivision C 2 or for other alternative purposes and (ii) encourage alternative uses to land application of poultry waste;
5. Conduct research on the reduction of phosphorus in poultry waste, innovative best management practices for poultry waste, water quality issues concerning poultry waste, or alternative uses of poultry waste; and
6. Conduct research on and consider implementation of nutrient reduction strategies in the formulation of feed. Such nutrient reduction strategies may include the addition of phytase or other feed additives or modifications to reduce nutrients in poultry waste.
H. Any amendments to the plan required by subsection G shall
be filed with the BoardDirector
before they are implemented. After January 1, 2000, each commercial poultry
processor shall implement its plan and any amendments thereto. Each commercial
poultry processor shall report annually to the BoardDirector
on the activities it has undertaken pursuant to its plan and any amendments
thereto. Failure to comply with the provisions of this section or to implement
and follow a filed plan or any amendments thereto shall constitute a violation
of this section.
§ 62.1-44.18:2. When Director may prohibit discharge; permits.
A. Notwithstanding any other provision of this chapter, the BoardDirector
shall have the authority to prohibit any present or proposed discharge of
sewage, industrial wastes, or other wastes into any sewerage system or
treatment works when ithe
has determined that such discharge would threaten the public health and safety,
or would substantially interfere or be incompatible with the treatment works,
or would substantially interfere with usage of state waters as designated by
the Board. Before making any such determination, the BoardDirector
shall consult with and receive the advice of the State Department of Health.
B. The BoardDirector
shall have the authority to issue permits which prescribe the terms and
conditions upon which the discharge of sewage, industrial wastes, or other
wastes may be made into any sewerage system or treatment works. The BoardDirector
may revoke or amend any such permit for good cause and after proper hearing.
Notwithstanding the requirement for notice and a hearing, the BoardDirector
may, after consultation with the State Department of Health, summarily revoke
or amend such permit when it determines that the permitted discharge poses a
threat to the public health and safety, or is interfering substantially with
the treatment works, or is grossly affecting usage of state waters as
designated by the Board. In such case, the BoardDirector
shall hold a hearing as soon as practicable but in no event later than twenty
days after the revocation or amendment with reasonable notice to the owner as
to the time and place thereof to affirm, modify, or rescind the summary
revocation or amendment of such permit.
C. Nothing in this section shall limit the authority of the BoardDirector
to proceed against such owner directly under § 62.1-44.23 or § 62.1-44.32 after
the BoardDirector
has prohibited discharge, or after the BoardDirector
has summarily amended or revoked the permit which authorized the discharge. If
a proposed revocation or amendment of a permit is mutually agreeable to the BoardDirector
and the owner, the hearing and notice thereof may be dispensed with.
§ 62.1-44.18:3. Permit for private sewerage facility; financial assurance; violations; waiver of filing.
A. No person shall operate a privately owned sewerage system
or sewerage treatment works, including an LHS 120 facility, that discharges
more than 1,000 gallons per day and less than 40,000 gallons per day without
obtaining a Virginia Pollutant Discharge Elimination System permit. Any owner
of such a facility shall file with the BoardDirector
a plan to abate, control, prevent, remove, or contain any substantial or
imminent threat to public health or the environment that is reasonably likely
to occur if such facility ceases operations. Such plan shall also include a
demonstration of financial capability to implement the plan. Financial
capability may be demonstrated by the creation of a trust fund, a submission of
a bond, a corporate guarantee based upon audited financial statements, or such
other instruments as the Board may deem appropriate. The BoardDirector
may require that such plan and instruments be updated as appropriate.
For the purposes of this section, "ceases operation" means to cease conducting the normal operation of a facility that is regulated under this chapter under circumstances where it would be reasonable to expect that such operation will not be resumed by the owner at the facility. The term shall not include the sale or transfer of a facility in the ordinary course of business or a permit transfer in accordance with Board regulations.
Any person who ceases operations and who knowingly and
willfully fails to implement a closure plan or to provide adequate funds for
implementation of such plan shall, if such failure results in a significant
harm or an imminent and substantial threat of significant harm to human health
or the environment, be liable to the Commonwealth and any political subdivision
thereof for the costs incurred in abating, controlling, preventing, removing,
or containing such harm or threat. This shall not in any way limit other
recourse available to the BoardDirector.
Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be guilty of a Class 4 felony.
B. The BoardDirector
may waive the filing of the plan required pursuant to subsection A for any
person who operates a privately owned sewerage system or sewerage treatment
works that was permitted prior to January 1, 2001, and discharges less than
5,000 gallons per day upon a finding that such person has not violated any
regulation or order of the Board,
any condition of a permit to operate the facility, or any provision of this
chapter for a period of not less than five years; provided, that no waiver may
be approved by the BoardDirector
until after the governing body of the locality in which the facility is located
approves the waiver after a public hearing. The BoardDirector
may revoke such waiver at any time for good cause. Any person receiving a
waiver who ceases operations shall, if such cessation of operation results in a
significant harm or an imminent and substantial risk of significant harm to
human health and the environment, be guilty of a Class 4 felony and liable to the
Commonwealth and any political subdivision thereof, for the costs incurred in
abating, controlling, preventing, removing, or containing such harm or threat.
C. The Department of Environmental Quality shall promulgate regulations necessary to carry out the provisions of this section. The Department shall identify by January 1, 2001, those facilities regulated under this section.
§ 62.1-44.19. Approval of sewerage systems and sewage treatment works.
A. Before any owner may 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, such owner shall file with the BoardDirector
an application for a certificate in scope and detail satisfactory to the BoardDirector.
B. If the application involves a system or works from which
there is or is to be a discharge to state waters, the application shall be
given public notice by publication once a week for two successive weeks in a
newspaper of general circulation in the county or city where the certificate is
applied for or by such other means as the BoardDirector
may prescribe. Before issuing the certificate, the BoardDirector
shall consult with and give consideration to the written recommendations of the
State Department of Health pertaining to the protection of public health. Upon
completion of advertising, the BoardDirector
shall determine if the application is complete, and if so, shall act upon it
within 21 days of such determination. The BoardDirector
shall approve such application if ithe
determines that minimum treatment requirements will be met and that the
discharge will not result in violations of water quality standards. If the BoardDirector
disapproves the application, ithe
shall state what modifications or changes, if any, will be required for
approval.
C. After the certificate has been issued or amended by the BoardDirector,
the owner shall acquire from the Department of Environmental Quality (i)
authorization to construct the systems or works for which the BoardDirector
has issued a discharge certificate and (ii) upon completion of construction,
authorization to operate the sewerage system or sewage treatment works. These
authorizations shall be obtained in accordance with regulations promulgated by
the Board.
D. Any owner operating under a valid certificate issued by the Board who fails to meet water quality standards
established by the Board solely as a result of a change in water quality
standards or in the law shall provide the necessary facilities approved by the
Department of Environmental Quality, in accordance with the provisions of
subsection C of this section, within a reasonable time to meet such new
requirements. The BoardDirector
may amend such certificate, or revoke it and issue a new one to reflect such
facilities after proper hearing, with at least 30 days' notice to the owner of
the time, place and purpose thereof. If such revocation or amendment of a
certificate is mutually agreeable to the BoardDirector
and the owner involved, the hearing and notice may be dispensed with.
E. The BoardDirector
shall revoke the certificate in case of a failure to comply with all such
requirements and may issue a special order under subdivisions (8a), (8b), and
(8c) of § 62.1-44.15.
§ 62.1-44.19:1. Whenever the State Department of Health or the
State Water Control BoardDirector
of the Department of Environmental Quality determines that a
receiving stream in Virginia Beach is being polluted by the sewage discharge
from a private or public sewage utility, and that it is possible to connect
such utility to the sewage system of a municipality, sewage treatment
authority, or sanitation district, the BoardDirector
is hereby empowered to order the utility in Virginia Beach to stop such
discharge into the receiving stream. The utility shall discontinue the said
discharge either by adequate treatment as determined by the State Department of
Health or Water Control Boardthe Director of
the Department of Environmental Quality, or by connection to
central facilities, either of which is to occur within one year.
§ 62.1-44.19:3.3. (Effective January 1, 2008) Septage disposal.
The BoardDirector
shall have the authority to issue permits that prescribe the terms and
conditions upon which septage may be disposed of by land application.
Application for disposal permits shall be submitted in form and content that
are satisfactory to the BoardDirector.
Upon receipt of a satisfactory application, the BoardDirector
shall send a copy to the State Board of Health and shall comply with the
provisions of § 62.1-44.19:3.4. The State Board of Health shall review the
application without delay and advise the BoardDirector
within 60 days of the requirements necessary to protect public health. The BoardDirector
shall not consider the application complete until comments have been received
from the State Board of Health. The BoardDirector
shall approve or disapprove the application and issue the permit as
appropriate. If the application is disapproved, the BoardDirector
shall advise the applicant of the conditions necessary to obtain approval. The BoardDirector
may summarily revoke or amend the permit if it determines that the septage
disposal is adversely affecting state waters or if the State Board of Health
notifies the BoardDirector
that public health is being adversely affected.
§ 62.1-44.19:3.4. (Effective January 1, 2008) Notification of local governing bodies.
A. Whenever the Department receives an application for land
disposal of treated sewage, stabilized sewage sludge, or stabilized septage,
the Department shall notify the local governing bodies where disposal is to
take place of pertinent details of the proposal and establish a date for a
public meeting to discuss technical issues relating to the proposal. The
Department shall give notice of the date, time, and place of the public meeting
and a description of the proposal by publication in a newspaper of general
circulation in the city or county where land disposal is to take place. Public
notice of the scheduled meeting shall occur no fewer than seven or more than 14
days prior to the meeting. The BoardDirector
shall not consider the application for land disposal to be complete until the
public meeting has been held and comment has been received from the local
governing body, or until 30 days have lapsed from the date of the public
meeting. This section shall not apply to applications for septic tank permits.
B. When a farm is to be added to an existing permit authorizing land application of sewage sludge, the Department shall notify persons residing on property bordering such farm, and shall receive written comments from those persons for a period not to exceed 30 days. Based upon the written comments, the Department shall determine whether additional site-specific requirements should be included in the authorization for land application at the farm.
§ 62.1-44.19:8. Control of discharges to toxic-impaired water.
Owners of establishments that discharge toxics to
toxic-impaired waters shall evaluate the options described in §§ 10.1-1425.10
and 10.1-1425.11 in determining the appropriate means to control such
discharges. Prior to issuing or reissuing any permit for the discharge of
toxics to toxic-impaired waters, the BoardDirector
shall review and consider the owner's evaluation of the options in determining
the conditions and limitations of the permit.
§ 62.1-44.19:14. Watershed general permit for nutrients.
A. By January 1, 2006, or as soon thereafter as possible, the BoardDirector
shall issue a Watershed General Virginia Pollutant Discharge Elimination System
Permit, hereafter referred to as the general permit, authorizing point source
discharges of total nitrogen and total phosphorus to the waters of the
Chesapeake Bay and its tributaries. Except as otherwise provided in this article,
the general permit shall control in lieu of technology-based, water
quality-based, and best professional judgment, interim or final effluent
limitations for total nitrogen and total phosphorus in individual Virginia
Pollutant Discharge Elimination System permits for facilities covered by the
general permit where the effluent limitations for total nitrogen and total
phosphorus in the individual permits are based upon standards, criteria, waste
load allocations, policy, or guidance established to restore or protect the
water quality and beneficial uses of the Chesapeake Bay or its tidal
tributaries.
B. This section shall not be construed to limit or otherwise
affect the Board'sDirector's
authority to establish and enforce more stringent water quality-based effluent
limitations for total nitrogen or total phosphorus in individual permits where
those limitations are necessary to protect local water quality. The exchange or
acquisition of credits pursuant to this article shall not affect any
requirement to comply with such local water quality-based limitations.
C. The general permit shall contain the following:
1. Waste load allocations for total nitrogen and total phosphorus for each permitted facility expressed as annual mass loads. The allocations for each permitted facility shall reflect the applicable individual water quality-based total nitrogen and total phosphorus waste load allocations. An owner or operator of two or more facilities located in the same tributary may apply for and receive an aggregated waste load allocation for total nitrogen and an aggregated waste load allocation for total phosphorus for multiple facilities reflecting the total of the water quality-based total nitrogen and total phosphorus waste load allocations established for such facilities individually;
2. A schedule requiring compliance with the combined waste
load allocations for each tributary as soon as possible taking into account (i)
opportunities to minimize costs to the public or facility owners by phasing in
the implementation of multiple projects; (ii) the availability of required
services and skilled labor; (iii) the availability of funding from the Virginia
Water Quality Improvement Fund as established in § 10.1-2128, the Virginia
Water Facilities Revolving Fund as established in § 62.1-225, and other
financing mechanisms; (iv) water quality conditions; and (v) other relevant
factors. Following receipt of the compliance plans required by subdivision C 3,
the BoardDirector
shall reevaluate the schedule taking into account the information in the
compliance plans and the factors in this subdivision, and may modify the
schedule as appropriate;
3. A requirement that within nine months after the initial
effective date of the general permit, the permittees shall either individually
or through the Association submit compliance plans to the DepartmentDirector
for approval. The compliance plans shall contain, at a minimum, any capital
projects and implementation schedules needed to achieve total nitrogen and
phosphorus reductions sufficient to comply with the individual and combined
waste load allocations of all the permittees in the tributary. The compliance
plans may rely on the exchange of point source credits in accordance with this
article, but not the acquisition of credits through payments authorized by §
62.1-44.19:18, to achieve compliance with the individual and combined waste
load allocations in each tributary. The compliance plans shall be updated
annually and submitted to the DepartmentDirector
no later than February 1 of each year;
4. Such monitoring and reporting requirements as the Board deems necessary to carry out the provisions of this article;
5. A procedure that requires every owner or operator of a
facility authorized by a Virginia Pollutant Discharge Elimination System permit
to discharge 100,000 gallons or more per day, or an equivalent load, directly
into tidal waters, or 500,000 gallons or more per day, or an equivalent load,
directly into nontidal waters, to secure general permit coverage by filing a
registration statement with the Department within a specified period after each
effective date of the general permit. The procedure shall also require any
owner or operator of a facility authorized by a Virginia Pollutant Discharge
Elimination System permit to discharge 40,000 gallons or more per day, or an
equivalent load, directly into tidal or nontidal waters to secure general
permit coverage by filing a registration statement with the DepartmentDirector
at the time he makes application with the DepartmentDirector
for a new discharge or expansion that is subject to an offset or
technology-based requirement in § 62.1-44.19:15, and thereafter within a
specified period of time after each effective date of the general permit. The
general permit shall provide that any facility authorized by a Virginia
Pollutant Discharge Elimination System permit and not required by this
subdivision to file a registration statement shall be deemed to be covered
under the general permit at the time it is issued, and shall file a registration
statement with the DepartmentDirector
when required by this section. Owners or operators of facilities that are
deemed to be permitted under this section shall have no other obligation under
the general permit prior to filing a registration statement and securing
coverage under the general permit based upon such registration statement;
6. A procedure for efficiently modifying the lists of facilities covered by the general permit where the modification does not change or otherwise alter any waste load allocation or delivery factor adopted pursuant to the Water Quality Management Planning Regulation (9 VAC 25-270) or its successor, or an applicable total maximum daily load. The procedure shall also provide for modifying or incorporating new waste load allocations or delivery factors, including the opportunity for public notice and comment on such modifications or incorporations; and
7. Such other conditions as the Board deems necessary to carry out the provisions of this chapter and Section 402 of the federal Clean Water Act (33 U.S.C. § 1342).
D. The Board shall maintain and make available to the public a current listing, by tributary, of all permittees and permitted facilities under the general permit, together with each permitted facility's total nitrogen and total phosphorus waste load allocations, and total nitrogen and total phosphorus delivery factors.
E. Except as otherwise provided in this article, in the event that there are conflicting or duplicative conditions contained in the general permit and an individual Virginia Pollutant Discharge Elimination System permit, the conditions in the general permit shall control.
§ 62.1-44.19:15. New or expanded facilities.
A. An owner or operator of a new or expanded facility shall comply with the applicable requirements of this section as a condition of the facility's coverage under the general permit.
1. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued before July 1, 2005,
that expands his facility to discharge 100,000 gallons or more per day, or an
equivalent load directly into tidal waters, or 500,000 gallons or more per day,
or an equivalent load, directly into nontidal waters shall demonstrate to the DepartmentDirector
that he has acquired waste load allocations sufficient to offset any increase
in his delivered total nitrogen and delivered total phosphorus loads resulting
from any expansion beyond his waste load allocations or permitted design
capacity as of July 1, 2005, and will install state-of-the-art nutrient removal
technology at the time of the expansion.
2. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued before July 1, 2005,
that expands his facility to discharge 100,000 gallons or more per day up to
and including 499,999 gallons per day, or an equivalent load, directly into
nontidal waters, shall demonstrate to the DepartmentDirector
that he has acquired waste load allocations sufficient to offset any increase
in his delivered total nitrogen and delivered total phosphorus loads resulting
from any expansion beyond his permitted capacity as of July 1, 2005, and will
install, at a minimum, biological nutrient removal technology at the time of
the expansion.
3. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued before July 1, 2005,
that expands his facility to discharge 40,000 gallons or more per day up to and
including 99,999 gallons per day, or an equivalent load, directly into tidal or
nontidal waters, shall demonstrate to the DepartmentDirector
that he has acquired waste load allocations sufficient to offset any increase
in his delivered total nitrogen and delivered total phosphorus loads resulting
from any expansion beyond his permitted capacity as of July 1, 2005.
4. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued on or after July 1,
2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall
demonstrate to the DepartmentDirector
that he has acquired waste load allocations sufficient to offset his delivered
total nitrogen and delivered total phosphorus loads, and will install (i) at a
minimum, biological nutrient removal technology at any facility authorized to
discharge up to and including 99,999 gallons per day, or an equivalent load,
directly into tidal and nontidal waters, or up to and including 499,999 gallons
per day, or an equivalent load, to nontidal waters; and (ii) state-of-the-art
nutrient removal technology at any facility authorized to discharge 100,000
gallons or more per day, or an equivalent load, directly into tidal waters, or
500,000 gallons or more per day, or an equivalent load, directly into nontidal
waters.
B. Waste load allocations required by this section to offset new or increased delivered total nitrogen and delivered total phosphorus loads shall be acquired in accordance with this subsection.
1. Such allocations may be acquired from one or a combination of the following:
a. Acquisition of all or a portion of the waste load allocations from one or more permitted facilities in the same tributary;
b. Acquisition of nonpoint source load allocations through the use of best management practices acquired through a public or private entity acting on behalf of the land owner. Such best management practices shall achieve reductions beyond those already required by or funded under federal or state law, or the Virginia tributaries strategies plans, and shall be installed in the same tributary in which the new or expanded facility is located and included as conditions of the facility's individual Virginia Pollutant Discharge Elimination System permit; or
c. Acquisition of allocations in accordance with the terms of the general permit or through such other means as may be approved by the Department on a case-by-case basis.
2. The BoardDirector
shall give priority to allocations acquired in accordance with subdivisions B 1
a and B 1 b. The BoardDirector
shall approve allocations acquired in accordance with subdivision B 1 c only
after the owner or operator has demonstrated that he has made a good faith
effort to acquire sufficient allocations in accordance with subdivisions B 1 a
and B 1 b and that such allocations are not reasonably available taking into
account timing, cost, and other relevant factors.
3. Notwithstanding the priority provisions in subdivision B 2,
the BoardDirector may grant a waste
load allocation in accordance with subdivision B 1 c to an owner or operator of
a facility authorized by a Virginia Pollution Abatement permit to land apply
domestic sewage if (i) the Virginia Pollution Abatement permit was issued
before July 1, 2005; (ii) the waste load allocation does not exceed such
facility's permitted design capacity as of July 1, 2005; (iii) the waste
treated by the existing facility is going to be treated and discharged pursuant
to a Virginia Pollutant Discharge Elimination System permit for a new
discharge; and (iv) the owner or operator installs state-of-the-art nutrient
removal technology at such facility. Such facilities cannot generate credits or
waste load allocations, based upon the removal of land application sites, that
can be acquired by other permitted facilities to meet the requirements of this
article.
C. Until such time as the Board Director
finds that no allocations are reasonably available in an
individual tributary, the general permit shall provide for the acquisition of
allocations through payments into the Virginia Water Quality Improvement Fund
established in § 10.1-2128. Such payments shall be promptly applied to achieve
equivalent point or nonpoint source reductions in the same tributary beyond
those reductions already required by or funded under federal or state law or
the Virginia tributaries strategies plans. The general permit shall base the
cost of each pound of allocation on (i) the estimated cost of achieving a
reduction of one pound of nitrogen or phosphorus at the facility that is
securing the allocation, or comparable facility, for each pound of allocation
acquired; or (ii) the average cost of reducing two pounds of nitrogen or
phosphorus from nonpoint sources in the same tributary for each pound of
allocation acquired, whichever is higher. Upon each reissuance of the general
permit, the Board may adjust the cost of each pound of allocation based on
current costs and cost estimates.
§ 62.1-44.19:16. Technology-based standards and effluent limitations.
A. The Board may establish a technology-based standard less stringent than the applicable standard specified in § 62.1-44.19:15 based on a demonstration by an owner or operator that the specified standard is not technically or economically feasible for the affected facility or that the technology-based standard would require the owner or operator to construct treatment facilities not otherwise necessary to comply with his waste load allocation without reliance on nutrient credit exchanges pursuant to § 62.1-44.19:18.
B. The BoardDirector
may include technology-based effluent concentration limitations in the
individual permit for any facility that has installed technology for the
control of nitrogen and phosphorus whether by new construction, expansion, or
upgrade. Such limitations shall be based upon the technology installed by the
facility and shall be expressed as annual average limitations. Such limitations
shall not affect the generation, acquisition, or exchange of allocations or
credits pursuant to this article.
§ 62.1-44.20. Right to entry to obtain information, etc.
Any duly authorized agent of the BoardDirector
may, at reasonable times and under reasonable circumstances, enter any
establishment or upon any property, public or private, for the purpose of
obtaining information or conducting surveys or investigations necessary in the
enforcement of the provisions of this chapter.
§ 62.1-44.23. Enforcement by injunction, etc.
Any person violating or failing, neglecting or refusing to
obey any rule, regulation, order, water quality standard, pretreatment
standard, or requirement of or any provision of any certificate issued by the Board, or by the owner of a publicly owned treatment
works issued to an industrial user, or any provisions of this chapter may be
compelled in a proceeding instituted in any appropriate court by the BoardDirector
to obey same and to comply therewith by injunction, mandamus or other
appropriate remedy.
§ 62.1-44.25. Right to hearing.
Any owner under §§ 62.1-44.16, 62.1-44.17, and 62.1-44.19
aggrieved by any action of the BoardDirector
taken without a formal hearing, or by inaction of the BoardDirector,
may demand in writing a formal hearing of such owner's
grievance, provided a petition requesting such hearing is filed with the Board.
In cases involving actions of the Board, such petition before
a hearing officer in accordance with the Administrative Process Act (§ 2.2-4000
et seq.). Petitions must be filed with
the Director within thirty30
days after notice of such action is mailed to such owner by certified mail.
§ 62.1-44.26. Hearings.
A. The hearings held under this chapter may be conducted by
the Board itself at a regular or special meeting of the as a formal hearing before a hearing
officer pursuant to §§ 2.2-4007.01 or 2.2-4020.Board, or by at least one
member of the Board designated by the chairman to conduct such hearings on
behalf of the Board at any other time and place authorized by the Board
B. A verbatim record of the proceedings of such hearings shall be taken and filed with the Board. Depositions may be taken and read as in actions at law.
C. The BoardDirector
shall have power to issue subpoenas and subpoenas duces tecum, and at the
request of any party shall issue such subpoenas. The failure of a witness
without legal excuse to appear or to testify or to produce documents shall be
acted upon by the BoardDirector
in the manner prescribed in § 2.2-4022. Witnesses who are subpoenaed shall
receive the same fees and mileage as in civil actions.
§ 62.1-44.27. Rules of evidence in hearings.
In all hearings under this chapter:
(1) All relevant and material evidence shall be received,
except that (a) the rules relating to privileged communications and privileged
topics shall be observed; (b) hearsay evidence shall be received only if the
declarant is not readily available as a witness; and (c) secondary evidence of
the contents of a document shall be received only if the original is not
readily available. In deciding whether a witness or document is readily
available, the Board or
hearing officer shall balance the importance of the evidence against the
difficulty of obtaining it, and the more important the evidence is the more
effort should be made to produce the eyewitness or the original document.
(2) All reports of inspectors and subordinates of the BoardDepartment
and other records and documents in the possession of the BoardDepartment
bearing on the case shall be introduced by the BoardDepartment
at the hearing.
(3) Subject to the provisions of subdivision (1) of this
section every party shall have the right to cross-examine adverse witnesses and
any inspector or subordinate of the BoardDirector
whose report is in evidence and to submit rebuttal evidence.
(4) The decision of the BoardDirector
shall be based only on evidence received at the hearing and matters of which a
court of record could take judicial notice.
§ 62.1-44.28. Decisions of the Director in hearings pursuant to §§ 62.1-44.15 and 62.1-44.25.
To be valid and operative, the decision by the BoardDirector
rendered pursuant to hearings under subdivisions (8a), (8b), and (8c) of §§
62.1-44.15 and 62.1-44.25 must be reduced to writing and contain the explicit
findings of fact and conclusions of law upon which the decision of the BoardDirector
is based and certified copies thereof must be mailed by certified mail to the
parties affected by it.
§ 62.1-44.29. Judicial review.
Any owner aggrieved by, or any person who has participated, in
person or by submittal of written comments, in the public comment process
related to, a final decision of the Board
under §§ 62.1-44.15 (5), 62.1-44.15 (8a), (8b), and (8c), 62.1-44.15:20,
62.1-44.15:21, 62.1-44.15:22, 62.1-44.15:23, 62.1-44.16, 62.1-44.17,
62.1-44.19 or § 62.1-44.25, whether such decision is affirmative or negative,
is entitled to judicial review thereof in accordance with the provisions of the
Administrative Process Act (§ 2.2-4000 et seq.) if such person meets the
standard for obtaining judicial review of a case or controversy pursuant to
Article III of the United States Constitution. A person shall be deemed to meet
such standard if (i) such person has suffered an actual or imminent injury
which is an invasion of a legally protected interest and which is concrete and
particularized; (ii) such injury is fairly traceable to the decision of the Board and
not the result of the independent action of some third party not before the
court; and (iii) such injury will likely be redressed by a favorable decision
by the court.
§ 62.1-44.31. Violation of special order or certificate or failure to cooperate with Director.
It shall be unlawful for any owner to fail to comply with any
special order adopted by the Board, which has
become final under the provisions of this chapter, or to fail to comply with a
pretreatment condition incorporated into the permit issued to it by the owner
of a publicly owned treatment works or to fail to comply with any pretreatment
standard or pretreatment requirement, or to discharge sewage, industrial waste
or other waste in violation of any condition contained in a certificate issued by the Board or in excess of the waste covered by such
certificate, or to fail or refuse to furnish information, plans, specifications
or other data reasonably necessary and pertinent required by the Board
under this chapter.
For the purpose of this section, the term "owner" shall mean, in addition to the definition contained in § 62.1-44.3, any responsible corporate officer so designated in the applicable discharge permit.
§ 62.1-44.32. Penalties.
(a) Any person who violates any provision of this chapter, or
who fails, neglects, or refuses to comply with any orderregulation
of the Board or order of the Director, or order of
a court, issued as herein provided, shall be subject to a civil penalty not to
exceed $32,500 for each violation within the discretion of the court. Each day
of violation of each requirement shall constitute a separate offense. Such
civil penalties shall be paid into the state treasury and deposited by the
State Treasurer into the Virginia Environmental Emergency Response Fund pursuant
to Chapter 25 of Title 10.1, excluding penalties assessed for violations of
Article 9 (§ 62.1-44.34:8 et seq.) or 10 (§ 62.1-44.34:10 et seq.) of Chapter
3.1 of Title 62.1, or a regulation, administrative or judicial order, or term
or condition of approval relating to or issued under those articles.
Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred, to be used for the purpose of abating environmental pollution therein in such manner as the court may, by order, direct, except that where the owner in violation is such county, city or town itself, or its agent, the court shall direct such penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1, excluding penalties assessed for violations of Article 9 or 10 of Chapter 3.1 of Title 62.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles.
In the event that a county, city, or town, or its agent, is the owner, such county, city, or town, or its agent, may initiate a civil action against any user or users of a waste water treatment facility to recover that portion of any civil penalty imposed against the owner proximately resulting from the act or acts of such user or users in violation of any applicable federal, state, or local requirements.
(b) Any person who willfully or negligently violates any
provision of this chapter, any regulation or
order of the Board or order
of the Director, any condition of a
certificate or any order of a court shall be guilty of a misdemeanor punishable
by confinement in jail for not more than 12 months and a fine of not less than
$2,500 nor more than $32,500, either or both. Any person who knowingly violates
any provision of this chapter, any regulation or order of
the Board or order of the Director,
any condition of a certificate or any order of a court issued as herein
provided, or who knowingly makes any false statement in any form required to be
submitted under this chapter or knowingly renders inaccurate any monitoring
device or method required to be maintained under this chapter, shall be guilty
of a felony punishable by a term of imprisonment of not less than one year nor
more than three years, or in the discretion of the jury or the court trying the
case without a jury, confinement in jail for not more than 12 months and a fine
of not less than $5,000 nor more than $50,000 for each violation. Any defendant
that is not an individual shall, upon conviction of a violation under this
subsection, be sentenced to pay a fine of not less than $10,000. Each day of
violation of each requirement shall constitute a separate offense.
(c) Any person who knowingly violates any provision of this chapter, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily harm, shall, upon conviction, be guilty of a felony punishable by a term of imprisonment of not less than two years nor more than 15 years and a fine of not more than $250,000, either or both. A defendant that is not an individual shall, upon conviction of a violation under this subsection, be sentenced to pay a fine not exceeding the greater of $1 million or an amount that is three times the economic benefit realized by the defendant as a result of the offense. The maximum penalty shall be doubled with respect to both fine and imprisonment for any subsequent conviction of the same person under this subsection.
(d) Criminal prosecution under this section shall be commenced within three years of discovery of the offense, notwithstanding the limitations provided in any other statute.
§ 62.1-44.34:15.1. Regulations for aboveground storage tanks.
The Board shall adopt regulations and develop procedures necessary to prevent pollution of state waters, lands, or storm drain systems from the discharge of oil from new and existing aboveground storage tanks. These regulations shall be developed in substantial conformity with the current codes and standards recommended by the National Fire Protection Association. To the extent that they are consistent with the Board's program, the Board shall incorporate accepted industry practices contained in the American Petroleum Institute publications and other accepted industry standards when developing the regulations contemplated by this section. The regulations shall provide the following:
1. For existing aboveground storage tanks at facilities with an aggregate capacity of one million gallons or greater:
a. To prevent leaks from aboveground storage tanks, requirements for inventory control, testing for significant inventory variations (e.g., test procedures in accordance with accepted industry practices, where feasible, and approved by the Board) and formal tank inspections every five years in accordance with accepted industry practices and procedures approved by the Board. Initial testing shall be on a schedule approved by the Board. Aboveground storage tanks totally off ground with all associated piping off ground, aboveground storage tanks with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil, and aboveground storage tanks containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control and testing for significant variations. In accordance with subdivision 5 of this section, the Board shall promulgate regulations which provide for variances from inventory control and testing for significant variation for (i) aboveground storage tanks with Release Prevention Barriers (RPBs) with all associated piping off ground, (ii) aboveground storage tanks with a de minimis capacity (12,000 gallons or less), and (iii) other categories of aboveground storage tanks, including those located within a building or structure, as deemed appropriate;
b. To prevent overfills, requirements for safe fill and shut down procedures, including an audible staged alarm with immediate and controlled shut down procedures, or equivalent measures established by the Board;
c. To prevent leaks from piping, requirements for cathodic protection, and pressure testing to be conducted at least once every five years, or equivalent measures established by the Board;
d. To prevent and identify leaks from any source, requirements (i) for a visual inspection of the facility each day of normal operations and a weekly inspection of the facility with a checklist approved by the Board, performed by a person certified or trained by the operator in accordance with Board requirements, (ii) for monthly gauging and inspection of all ground water monitoring wells located at the facility, and monitoring of the well head space for the presence of vapors indicating the presence of petroleum, and (iii) for quarterly sampling and laboratory analysis of the fluids present in each such monitoring well to determine the presence of petroleum or petroleum by-product contamination; and
e. To ensure proper training of individuals conducting inspections, requirements for proper certification or training by operators relative to aboveground storage tanks.
2. For existing aboveground storage tanks at facilities with an aggregate capacity of less than one million gallons but more than 25,000 gallons:
a. To prevent leaks from aboveground storage tanks, requirements for inventory control and testing for significant inventory variations (e.g., test procedures in accordance with accepted industry practices, where feasible, and approved by the Board). Initial testing shall be on a schedule approved by the Board. Aboveground storage tanks totally off ground with all associated piping off ground, aboveground storage tanks with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil, and aboveground storage tanks containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control and testing for significant variations. In accordance with subdivision 5 of this section, the Board shall promulgate regulations which provide for variances from inventory control and testing for significant variation for (i) aboveground storage tanks with Release Prevention Barriers (RPBs) with all associated piping off ground, (ii) aboveground storage tanks with a de minimis capacity (12,000 gallons or less), and (iii) other categories of aboveground storage tanks, including those located within a building or structure, as deemed appropriate;
b. To prevent overfills, requirements for safe fill and shut down procedures;
c. To prevent leaks from piping, requirements for pressure testing to be conducted at least once every five years or equivalent measures established by the Board; and
d. To prevent and identify leaks from any source, requirements for a visual inspection of the facility each day of normal operations and a weekly inspection of the facility with a checklist approved by the Board, performed by a person certified or trained by the operator in accordance with Board requirements developed in accordance with subdivision 1 of this section.
3. For aboveground storage tanks existing prior to the effective date of the regulations required by this section, when the results of a tank inspection indicate the need for replacement of the tank bottom, the operator of a facility shall install a release prevention barrier (RPB) capable of: (i) preventing the release of the oil and (ii) containing or channeling the oil for leak detection. The decision to replace an existing tank bottom shall be based on the criteria established by regulations pursuant to this section.
4. The Board shall establish performance standards for aboveground storage tanks installed, retrofitted or brought into use after the effective date of the regulations promulgated pursuant to this subsection that incorporate all technologies designed to prevent oil discharges that have been proven in accordance with accepted industry practices and shown to be cost-effective.
5. The Board shall establish criteria for granting the
Director to grant variances from the requirements of the
regulations promulgated pursuant to this section (i) on a case-by-case basis
and (ii) by regulation for categories of aboveground storage tanks, except that
the BoardDirector
shall not grant a variance that would result in an unreasonable risk to the
public health or the environment. Variances by regulation shall be based on
relevant factors such as tank size, use, and location. Within thirty30
days after the grant of a variance for a facility, the BoardDirector
shall send written notification of the variance to the chief administrative
officer of the locality in which the facility is located.
§ 62.1-44.34:18. Discharge of oil prohibited; liability for permitting discharge.
A. The discharge of oil into or upon state waters, lands, or
storm drain systems within the Commonwealth is prohibited. For purposes of this
section, discharges of oil into or upon state waters include discharges of oil
that (i) violate applicable water quality standards or a permit or certificate of the Board or (ii) cause a film or sheen upon or discoloration
of the surface of the water or adjoining shorelines or cause a sludge or
emulsion to be deposited beneath the surface of the water or upon adjoining
shorelines.
B. Any person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge and any operator of any facility, vehicle or vessel from which there is a discharge of oil into or upon state waters, lands, or storm drain systems, or from which there is a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or from which there is a substantial threat of such discharge shall, immediately upon learning of such discharge or threat of discharge, implement any applicable oil spill contingency plan approved under this article or take such other action as may be deemed necessary in the judgment of the Board to contain and clean up such discharge or threat of such discharge. In the event of such discharge or threat of discharge, if it cannot be determined immediately the person responsible therefor, or if the person is unwilling or unable to promptly contain and clean up such discharge or threat of discharge, the Board may take such action as is necessary to contain and clean up the discharge or threat of discharge, including the engagement of contractors or other competent persons.
C. Any person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge and any operator of any facility, vehicle or vessel from which there is a discharge of oil into or upon state waters, lands, or storm drain systems within the Commonwealth, or from which there is a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or from which there is a substantial threat of such discharge, shall be liable to:
1. The Commonwealth of Virginia or any political subdivision thereof for all costs and expenses of investigation, containment and cleanup incurred as a result of such discharge or threat of discharge, including, but not limited to, reasonable personnel, administrative, and equipment costs and expenses directly incurred by the Commonwealth or political subdivision, in and for preventing or alleviating damage, loss, hardship, or harm to human health or the environment caused or threatened to be caused by such discharge or threat of discharge;
2. The Commonwealth of Virginia or any political subdivision thereof for all damages to property of the Commonwealth of Virginia or the political subdivision caused by such discharge;
3. The Commonwealth of Virginia or any political subdivision thereof for loss of tax or other revenues caused by such discharge, and compensation for the loss of any natural resources that cannot be restocked, replenished or restored; and
4. Any person for injury or damage to person or property, real or personal, loss of income, loss of the means of producing income, or loss of the use of the damaged property for recreational, commercial, industrial, agricultural or other reasonable uses, caused by such discharge.
D. Notwithstanding any other provision of law, a person who renders assistance in containment and cleanup of a discharge of oil prohibited by this article or a threat of such discharge shall be liable under this section for damages for personal injury and wrongful death caused by that person's negligence, and for damages caused by that person's gross negligence or willful misconduct, but shall not be liable for any other damages or costs and expenses of containment and cleanup under this section that are caused by the acts or omissions of such person in rendering such assistance; however, such liability provision shall not apply to a person discharging or causing or permitting a discharge of oil into or upon state waters, lands, or storm drain systems, discharging or causing or permitting a discharge of oil which may reasonably be expected to enter state waters, lands, or storm drain systems, or causing or permitting a substantial threat of such discharge, or to such person's employee. Nothing in this article shall affect the right of any person who renders such assistance to reimbursement for the costs of the containment and cleanup under the applicable provisions of this article or the Federal Water Pollution Control Act, as amended, or any rights that person may have against any third party whose acts or omissions caused or contributed to the prohibited discharge of oil or threat of such discharge. In addition, a person, other than an operator, who voluntarily, without compensation, and upon the request of a governmental agency, assists in the containment or cleanup of a discharge of oil, shall not be liable for any civil damages resulting from any act or omission on his part in the course of his rendering such assistance in good faith; nor shall any person or any organization exempt from income taxation under § 501 (c) (3) of the Internal Revenue Code who notifies or assists in notifying the membership of such organization to assist in the containment or cleanup of a discharge of oil, voluntarily, without compensation, and upon the request of a government agency, be liable for any civil damages resulting from such notification rendered in good faith.
E. In any action brought under this article, it shall not be necessary for the Commonwealth, political subdivision or any person, to plead or prove negligence in any form or manner.
F. In any action brought under this article, the Commonwealth, political subdivision or any person, if a prevailing party, shall be entitled to an award of reasonable attorneys' fees and costs.
G. It shall be a defense to any action brought under subdivision C 2, C 3, or C 4 of this section that the discharge was caused solely by (i) an act of God, (ii) an act of war, (iii) a willful act or omission of a third party who is not an employee, agent or contractor of the operator, or (iv) any combination of the foregoing; however, this subsection shall not apply to any action brought against (a) a person or operator who failed or refused to report a discharge as required by § 62.1-44.34:19; or (b) a person or operator who failed or refused to cooperate fully in any containment and cleanup or who failed or refused to effect containment and cleanup as required by subsection B of this section.
H. In any action brought under subdivision C 2, C 3, or C 4 of this section, the total liability of a person or operator under this section for each discharge of oil or threat of such discharge shall not exceed the amount of financial responsibility required under § 62.1-44.34:16 or $10,000,000, whichever is greater; however, there shall be no limit of liability imposed under this section: (a) if the discharge of oil or threat of such discharge was caused by gross negligence or willful misconduct on the part of the person or the operator discharging or causing or permitting discharge or threat of discharge or by an agent, employee or contractor of such person or operator, or by the violation of any applicable safety, construction or operation regulations by such person or operator or an agent, employee or contractor of such person or operator; or (b) if the operator or person discharging or causing or permitting a discharge or threat of discharge failed or refused to report the discharge as required by § 62.1-44.34:19, or failed or refused to cooperate fully in any containment and cleanup or to effect containment and cleanup as required by subsection B of this section.
I. An operator that incurs costs pursuant to subsection B shall have the right to recover all or part of such costs in an action for contribution against any person or persons whose acts or omissions caused or contributed to the discharge or threat of discharge. In resolving contribution claims under this article, the court may allocate costs among the parties using such equitable factors as the court deems appropriate.
J. Any person or operator who pays costs or damages pursuant to subsection C shall have the right to recover all or part of such costs or damages in an action for contribution against any person or persons whose act or omission has caused or contributed to the discharge or threat of discharge. In resolving contribution claims under this article, the court may allocate costs or damages among the parties using such equitable factors as the court deems appropriate.
§ 62.1-44.34:20. Enforcement and penalties.
A. Upon a finding of a violation of this article or a
regulation or term or condition of approval issued pursuant to this article,
the BoardDirector
is authorized to issue a special order requiring any person to cease and desist
from causing or permitting such violation or requiring any person to comply
with any such provision, regulation or term or condition of approval. Such
special orders shall be issued only after notice and an opportunity for hearing
except that, if the BoardDirector
finds that any discharge in violation of this article poses a serious threat to
(i) the public health, safety or welfare or the health of animals, fish,
botanic or aquatic life; (ii) a public water supply; or (iii) recreational,
commercial, industrial, agricultural or other reasonable uses, the BoardDirector
may issue, without advance notice or hearing, an emergency special order
requiring the operator of any facility, vehicle or vessel to cease such
discharge immediately, to implement any applicable contingency plan and to
effect containment and cleanup. Such emergency special order may also require
the operator of a facility to modify or cease regular operation of the
facility, or any portion thereof, until the BoardDirector
determines that continuing regular operation of the facility, or such portion
thereof, will not pose a substantial threat of additional or continued
discharges. The BoardDirector
shall affirm, modify, amend or cancel any such emergency order after providing
notice and opportunity for hearing to the operator charged with the violation.
The notice of the hearing and the emergency order shall be issued at the same
time. If an operator who has been issued such a special order or an emergency
special order is not complying with the terms thereof, the BoardDirector
may proceed in accordance with subsection B of this section, and where the
order is based on a finding of an imminent and substantial danger, the court
shall issue an injunction compelling compliance with the emergency special
order pending a hearing by the BoardDirector.
If an emergency special order requires modification or cessation of operations,
the BoardDirector
shall provide an opportunity for a hearing within 48 hours of the issuance of
the injunction.
B. In the event of a violation of this article or a
regulation, administrative or judicial order, or term or condition of approval
issued under this article, or in the event of failure to comply with a special
order issued by the BoardDirector
pursuant to this section, the BoardDirector
is authorized to proceed by civil action to obtain an injunction of such
violation, to obtain such affirmative equitable relief as is appropriate and to
recover all costs, damages and civil penalties resulting from such violation or
failure to comply. The BoardDepartment
shall be entitled to an award of reasonable attorneys' fees and costs in any
action in which it is a prevailing party.
C. Any person who violates or causes or permits to be violated a provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, shall be subject to a civil penalty for each such violation as follows:
1. For failing to obtain approval of an oil discharge contingency plan as required by § 62.1-44.34:15, not less than $1,000 nor more than $50,000 for the initial violation, and $5,000 per day for each day of violation thereafter;
2. For failing to maintain evidence of financial responsibility as required by § 62.1-44.34:16, not less than $1,000 nor more than $100,000 for the initial violation, and $5,000 per day for each day of violation thereafter;
3. For discharging or causing or permitting a discharge of oil into or upon state waters, or owning or operating any facility, vessel or vehicle from which such discharge originates in violation of § 62.1-44.34:18, up to $100 per gallon of oil discharged;
4. For failing to cooperate in containment and cleanup of a discharge as required by § 62.1-44.34:18 or for failing to report a discharge as required by § 62.1-44.34:19, not less than $1,000 nor more than $50,000 for the initial violation, and $10,000 for each day of violation thereafter; and
5. For violating or causing or permitting to be violated any other provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, up to $32,500 for each violation. Each day of violation of each requirement shall constitute a separate offense.
D. Civil penalties may be assessed under this article either
by a court in an action brought by the BoardDirector
pursuant to this section, as specified in § 62.1-44.15, or with the consent of
the person charged, in a special order issued by the BoardDirector.
All penalties shall be paid into the state treasury and deposited by the State
Treasurer into the Virginia Underground Petroleum Storage Tank Fund as
established in § 62.1-44.34:11. In determining the amount of any penalty,
consideration shall be given to the willfulness of the violation, any history
of noncompliance, the actions of the person in reporting, containing and
cleaning up any discharge or threat of discharge, the damage or injury to state
waters or the impairment of their beneficial use, the cost of containment and
cleanup, the nature and degree of injury to or interference with general health,
welfare and property, and the available technology for preventing, containing,
reducing or eliminating the discharge.
E. Any person who knowingly violates, or causes or permits to be violated, a provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not more than $100,000, either or both. Any person who knowingly or willfully makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained by this article or by administrative or judicial order issued under this article shall be guilty of a felony punishable by a term of imprisonment of not less than one nor more than three years and a fine of not more than $100,000, either or both. In the case of a discharge of oil into or upon state waters:
1. Any person who negligently discharges or negligently causes or permits such discharge shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not more than $50,000, either or both.
2. Any person who knowingly and willfully discharges or knowingly and willfully causes or permits such discharge shall be guilty of a felony punishable by a term of imprisonment of not less than one year nor more than 10 years and a fine of not more than $100,000, either or both.
F. Each day of violation of each requirement shall constitute a separate offense. In the event the violation of this article follows a prior felony conviction under subdivision E 2 of this section, such violation shall constitute a felony and shall be punishable by a term of imprisonment of not less than two years nor more than 10 years and a fine of not more than $200,000, either or both.
G. Upon conviction for a violation of any provision of this article, or a regulation, administrative or judicial order, or term or condition of approval issued under this article, a defendant who is not an individual shall be sentenced to pay a fine not exceeding the greater of:
1. $1 million; or
2. An amount that is three times the economic benefit, if any, realized by the defendant as a result of the offense.
H. Any tank vessel entering upon state waters which fails to provide evidence of financial responsibility required by § 62.1-44.34:16, and any vessel from which oil is discharged into or upon state waters, may be detained and held as security for payment to the Commonwealth of any damages or penalties assessed under this section. Such damages and penalties shall constitute a lien on the vessel and the lien shall secure all costs of containment and cleanup, damages, fines and penalties, as the case may be, for which the operator may be liable. The vessel shall be released upon posting of a bond with surety in the maximum amount of such damages or penalties.
§ 62.1-44.34:23. Exceptions.
A. Nothing in this article shall apply to: (i) normal discharges
from properly functioning vehicles and equipment, marine engines, outboard
motors or hydroelectric facilities; (ii) accidental discharges from farm
vehicles or noncommercial vehicles; (iii) accidental discharges from the fuel
tanks of commercial vehicles or vessels that have a fuel tank capacity of 150
gallons or less; (iv) discharges authorized by a valid permit issued by
the Board pursuant to § 62.1-44.15 (5) or by the United States
Environmental Protection Agency; (v) underground storage tanks regulated under
a state program; (vi) releases from underground storage tanks as defined in §
62.1-44.34:8, regardless of when the release occurred; (vii) discharges of
hydrostatic test media from a pipeline undergoing a hydrostatic test in
accordance with federal pipeline safety regulations; or (viii) discharges
authorized by the federal on-scene coordinator and the Executive Director or
his designee in connection with activities related to the recovery of spilled
oil where such activities are undertaken to minimize overall environmental
damage due to an oil spill into or on state waters. However, the exception
provided in clause (viii) shall in no way reduce the liability of the person
who initially spilled the oil which is being recovered.
B. Notwithstanding the exemption set forth in clause (vi) of subsection A of this section, a political subdivision may recover pursuant to subsection C of § 62.1-44.34:18 for a discharge of oil into or upon state waters, lands, or storm drain systems from an underground storage tank regulated under a state program at facilities with an aggregate capacity of one million gallons or greater.
§ 62.1-242. Definitions.
As used in this chapter, unless the context requires otherwise:
"Beneficial use" means both instream and offstream uses. Instream beneficial uses include but are not limited to protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include but are not limited to domestic (including public water supply), agricultural, electric power generation, commercial, and industrial uses. Domestic and other existing beneficial uses shall be considered the highest priority beneficial uses.
"Board" means the State Water Control Board.
"Director" means the Director of the Department of Environmental Quality.
"Nonconsumptive use" means the use of water withdrawn from a stream in such a manner that it is returned to the stream without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.
"Surface water withdrawal permit" means a document
issued by the BoardDirector
evidencing the right to withdraw surface water.
"Surface water management area" means a geographically defined surface water area in which the Board has deemed the levels or supply of surface water to be potentially adverse to public welfare, health and safety.
"Surface water" means any water in the Commonwealth, except ground water, as defined in § 62.1-255.
§ 62.1-243. Withdrawals for which surface water withdrawal permit not required.
A. No surface water withdrawal permit shall be required for
(i) any nonconsumptive use, (ii) any water withdrawal of less than 300,000
gallons in any single month, (iii) any water withdrawal from a farm pond
collecting diffuse surface water and not situated on a perennial stream as
defined in the United States Geological Survey 7.5-minute series topographic
maps, (iv) any withdrawal in any area which has not been declared a surface
water management area, or (v) any withdrawal from a wastewater treatment system
permitted by the State Water Control BoardDirector
or the Department of Mines, Minerals and Energy.
B. No political subdivision or investor-owned water company permitted by the Department of Health shall be required to obtain a surface water withdrawal permit for:
1. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.
2. Any withdrawal not in existence on July 1, 1989, if the
person proposing to make the withdrawal has received a § 401 certification from
the State Water Control BoardDirector
pursuant to the requirements of the Clean Water Act to install any necessary
withdrawal structures and make such withdrawal; however, a permit shall be
required in any surface water management area before any such withdrawal is
increased beyond the amount authorized by the said certification.
3. Any withdrawal in existence on July 1, 1989, from an
instream impoundment of water used for public water supply purposes; however,
during periods when permit conditions in a surface water management area are in
force under regulations adopted by the Board pursuant to § 62.1-249, and when
the rate of flow of natural surface water into the impoundment is equal to or
less than the average flow of natural surface water at that location, the BoardDirector
may require the release of water from the impoundment at a rate not exceeding
the existing rate of flow of natural surface water into the impoundment.
Withdrawals by a political subdivision or investor-owned water company permitted by the Department of Health shall be affected by subdivision 3 of subsection B only at the option of that political subdivision or investor-owned water company.
To qualify for any exemption in subsection B of this section,
the political subdivision making the withdrawal, or the political subdivision
served by an authority making the withdrawal, shall have instituted a water
conservation program approved by the BoardDirector
which includes: (i) use of water saving plumbing fixtures in new and renovated
plumbing as provided under the Uniform Statewide Building Code; (ii) a water
loss reduction program; (iii) a water use education program; and (iv)
ordinances prohibiting waste of water generally and providing for mandatory
water use restrictions, with penalties, during water shortage emergencies. The BoardDirector
shall review all such water conservation programs to ensure compliance with (i)
through (iv) of this paragraph.
C. No existing beneficial consumptive user shall be required to obtain a surface water withdrawal permit for:
1. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.
2. Any withdrawal not in existence on July 1, 1989, if the
person proposing to make the withdrawal has received a § 401 certification from
the State Water Control BoardDirector
pursuant to the requirements of the Clean Water Act to install any necessary
withdrawal structures and make such withdrawal; however, a permit shall be
required in any surface water management area before any such withdrawal is
increased beyond the amount authorized by the said certification.
To qualify for either exemption in subsection C of this
section, the beneficial consumptive user shall have instituted a water
management program approved by the BoardDirector
which includes: (i) use of water-saving plumbing; (ii) a water loss reduction
program; (iii) a water use education program; and (iv) mandatory reductions
during water shortage emergencies. However, these reductions shall be on an
equitable basis with other uses exempted under subsection B of this section.
The BoardDirector
shall review all such water management programs to ensure compliance with (i)
through (iv) of this paragraph.
D. The BoardDirector
shall issue certificates for any withdrawals exempted pursuant to subsections B
and C of this section. Such certificates shall include conservation or
management programs as conditions thereof.
§ 62.1-244. Director may require information from persons withdrawing surface water.
The BoardDirector
may require any person withdrawing surface water for any purpose in any surface
water management area to furnish information with regard to such surface water
withdrawal and the use thereof.
§ 62.1-245. Agreements among persons withdrawing surface water.
In the administration of this chapter, the BoardDirector
shall encourage, promote and recognize voluntary agreements among persons
withdrawing surface water in the same surface water management area. When the BoardDirector
finds that any such agreement, executed in writing and filed with the BoardDirector,
is consistent with the intent, purposes and requirements of this chapter, the BoardDirector
shall approve the agreement following a public hearing. The BoardDirector
shall provide at least sixty days' notice of the public hearing to the public
in general and individually to those persons withdrawing surface water in the
surface water management area who are not parties to the agreement, and shall
make a good faith effort to so notify recreational user groups, conservation
organizations and fisheries management agencies. The BoardDirector
shall be a party to the agreement. The agreement, until terminated, shall
control in lieu of a formal order, rule, regulation or permit issued by
the Board under the provisions of this chapter, and shall be
deemed to be a case decision under the Administrative Process Act (§ 2.2-4000
et seq.). Any agreement shall specify the amount of water affected thereby.
Any agreement approved by the BoardDirector
may include conditions which can result in its amendment or termination by the BoardDirector,
following a public hearing, if the BoardDirector
finds that it or its effect is inconsistent with the intent, purposes and
requirements of this chapter. Such conditions may include (i) a determination
by the BoardDirector
that the agreement originally approved by the Board
will not further the purposes of this chapter, (ii) a determination by the BoardDirector
that circumstances have changed such that the agreement originally approved by the Board will no longer further the purposes by this chapter,
or (iii) one or more parties to the agreement is not fulfilling its commitments
under the agreement. The BoardDirector
shall provide at least sixty60
days' notice of the public hearing to the public in general and individually to
those persons withdrawing surface water in the surface water management area
who are not parties to the agreement, and shall make a good faith effort to so
notify recreational user groups, conservation organizations and fisheries
management agencies.
§ 62.1-247. Use of surface water in surface water management area.
After an area has been declared a surface water management
area by an order of the Board, no person shall
withdraw or attempt to withdraw any surface water, except for withdrawals
exempted under § 62.1-243 or made pursuant to a voluntary agreement approved by
the BoardDirector
pursuant to § 62.1-245, without a surface water withdrawal permit issued by the Board.
§ 62.1-248. Permits.
A. Any permit issued by the BoardDirector
shall include a flow requirement appropriate for the protection of beneficial
instream uses. In determining the level of flow in need of protection, the BoardDirector
shall consider, among other things, recreational and aesthetic factors and the
potential for substantial and long-term adverse impact on fish and wildlife
found in that particular surface water management area. Should this
determination indicate a need to restrict water withdrawal, the BoardDirector
shall consider, among other things, the availability of alternative water
supplies, the feasibility of water storage or other mitigation measures, and
the socioeconomic impacts of such restrictions on the potentially affected
water users and on the citizens of the Commonwealth in general.
In itsthe
permit decision, the BoardDirector
shall attempt to balance offstream and instream water uses so that the welfare
of the citizens of the Commonwealth is maximized without imposing unreasonable
burdens on any individual water user or water-using group. The decision to
implement this balance may consist of approval of withdrawal without
restriction, approval subject to conditions designed to protect instream uses
from unacceptable adverse effects, or disapproval of the withdrawal.
Permit conditions may include, but are not limited to, the following: (i) maximum amounts which may be withdrawn, (ii) times of the day or year during which withdrawals may occur, and (iii) requirements for voluntary and mandatory conservation measures.
B. In considering whether to issue, modify, revoke, or deny a
permit under this section, the BoardDirector
shall consider:
1. The number of persons using a stream and the object, extent and necessity of their respective withdrawals or uses;
2. The nature and size of the stream;
3. The types of businesses or activities to which the various uses are related;
4. The importance and necessity of the uses claimed by permit applicants, or of the water uses of the area and the extent of any injury or detriment caused or expected to be caused to instream or offstream water uses;
5. The effects on beneficial uses; and
6. Any other relevant factors.
C. Permits shall be transferable among users, subject to
approval by the BoardDirector.
D. In developing regulations governing the issuance of permits, the Board shall prioritize among types of users. Domestic and existing uses shall be given the highest priority in the issuance of permits for other beneficial uses. Included among existing uses shall be any projected use which has been relied upon in the development of an industrial project and for which a permit has been obtained by January 1, 1989, pursuant to § 404 of the Clean Water Act.
§ 62.1-249. Applicability of permit conditions.
A. The Board by regulation shall determine when the level of
flow is such that permit conditions in a surface water management area are in
force. As a part of this regulation, the Board shall adopt a reasonable system
of water-use classification according to classes of beneficial uses. The Board
may include provisions forcriteria for the
Director to use in granting variances and alternative measures to
prevent undue hardship and ensure equitable distribution of water resources.
B. The regulations may provide that the Board, or the Board's
Executive Director, by order may declare that the level of flow is
such that permit conditions are applicable for all or part of a surface water
management area.
C. The Board may impose such restrictions on one or more classes of water uses as may be necessary to protect the surface water resources of the area from serious harm.
D. Regulations shall provide for the means for a declaration of water shortage to be rescinded.
E. When permit conditions become applicable in a surface water
management area, the BoardDirector
shall notify each permittee by mail or cause notice thereof to be published in
a newspaper of general circulation throughout the area. Publication of such
notice will serve as notice to all permit holders in the area.
§ 62.1-250. State agency review.
Prior to the creation of a surface water management area, or
the issuance of a permit within one, the BoardDirector
shall consult and cooperate with, and give full consideration to the written
recommendations of, the following agencies: the Department of Game and Inland
Fisheries, the Department of Conservation and Recreation, the Virginia Marine
Resources Commission, the Department of Health, and any other interested and
affected agencies. Such consultation shall include the need for development of
a means in the surface water management area for balancing instream uses with
offstream uses. Agencies may submit written comments on proposed permits within
forty-five days after notification by the BoardDirector.
The BoardDirector
shall assume that if written comments are not submitted by an agency, within
the time period, the agency has no comments on the proposed permits.
§ 62.1-251. Cancellation or suspension of permit.
Whenever the BoardDirector
finds that the holder of a permit is willfully violating any provision of such
permit or any other provision of this chapter, the BoardDirector
may cancel or suspend the permit or impose conditions on its future use in
order to prevent future violations. The finding of the BoardDirector
shall be made in accordance with the Administrative Process Act, § 2.2-4000 et
seq.
§ 62.1-252. Penalties; injunctions.
A. Any person who violates any provision of this chapter shall be subject to a civil penalty not to exceed $1,000 for each violation. Each day of violation shall constitute a separate offense.
B. With the consent of any person in violation of this
chapter, the BoardDirector
may provide, in an order issued by the BoardDirector
against the person, for the payment of civil charges. These charges shall be in
lieu of civil charges imposed by the court.
C. In order to protect the public interest of the
Commonwealth, the BoardDirector
may seek injunctive relief against any person violating any provision of this
chapter.
D. The civil penalties and civil charges provided for in this section shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1.
§ 62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise:
"Beneficial use" includes, but is not limited to, domestic (including public water supply), agricultural, commercial, and industrial uses.
"Board" means the State Water Control Board.
"Director" means the Director of the Department of Environmental Quality.
"Ground water" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.
"Ground water withdrawal permit" means a certificate
issued by the BoardDirector
permitting the withdrawal of a specified quantity of ground water in a ground
water management area.
"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this Commonwealth or any other state or country.
§ 62.1-256. Duties of Board and Director.
The Board and Director shall have the following duties and powers:
1. ToThe Director is
authorized to issue ground water withdrawal permits in accordance
with regulations adopted by the Board;
2. ToThe Director is
authorized to issue special orders as provided in § 62.1-268;
3. ToThe Board is
authorized to study, investigate and assess ground water resources
and all problems concerned with the quality and quantity of ground water
located wholly or partially in the Commonwealth, and to make such reports and
recommendations as may be necessary to carry out the provisions of this
chapter;
4. ToThe Board is
authorized to require any person withdrawing ground water for any
purpose anywhere in the Commonwealth, whether or not declared to be a ground
water management area, to furnish to the BoardDirector
such information with regard to such ground water withdrawal and the use
thereof as may be necessary to carry out the provisions of this chapter,
excluding ground water withdrawals occurring in conjunction with activities
related to exploration for and production of oil, gas, coal or other minerals
regulated by the Department of Mines, Minerals and Energy;
5. ToThe Board is
authorized to prescribe and the Director is
authorized to enforce requirements that naturally flowing wells be
plugged or destroyed, or be capped or equipped with valves so that flow of
ground water may be completely stopped when said ground water is not currently
being applied to a beneficial use;
6. ToThe Director is
authorized to enter at reasonable times and under reasonable
circumstances, any establishment or upon any property, public or private, for
the purposes of obtaining information, conducting surveys or inspections, or
inspecting wells and springs, and to duly authorize agents to do the same, to
ensure compliance with any permits, standards, policies, rules, regulations,
rulings and special orders which it may adopt, issue or establishadopted,
issued, or established to carry out the provisions of this
chapter;
7. ToThe Director is
authorized to issue special exceptions pursuant to § 62.1-267; and
8. ToThe Board is
authorized to adopt such regulations as it deems necessary to
administer and enforce the provisions of this chapter; and.
9. To delegate to its Executive Director any of the
powers and duties invested in it to administer and enforce the provisions of
this chapter except the adoption and promulgation of rules, standards or
regulations; the revocation of permits; and the issuance, modification, or
revocation of orders except in case of an emergency as provided in subsection B
of § 62.1-268.
§ 62.1-259. Certain withdrawals; permit not required.
No ground water withdrawal permit shall be required for (i)
withdrawals of less than 300,000 gallons a month; (ii) temporary construction
dewatering; (iii) temporary withdrawals associated with a state-approved ground
water remediation; (iv) the withdrawal of ground water for use by a ground
water heat pump where the discharge is reinjected into the aquifer from which
it is withdrawn; (v) the withdrawal from a pond recharged by ground water
without mechanical assistance; (vi) the withdrawal of water for geophysical
investigations, including pump tests; (vii) the withdrawal of ground water
coincident with exploration for and extraction of coal or activities associated
with coal mining regulated by the Department of Mines, Minerals and Energy;
(viii) the withdrawal of ground water coincident with the exploration for or
production of oil, gas or other minerals other than coal, unless such
withdrawal adversely impacts aquifer quantity or quality or other ground water
users within a ground water management area; (ix) the withdrawal of ground
water in any area not declared a ground water management area; or (x) the
withdrawal of ground water pursuant to a special exception issued by the BoardDirector.
§ 62.1-260. Permits for existing ground water withdrawals in existing ground water management areas.
A. Persons holding a certificate of ground water right or a
permit to withdraw ground water issued prior to July 1, 1991, in the Eastern
Virginia or Eastern Shore Groundwater Management Areas and currently
withdrawing ground water pursuant to said certificate or permit shall file an
application for a ground water withdrawal permit on or before December 31,
1992, in order to obtain a permit for withdrawals. The BoardDirector
shall issue ground water withdrawal permits for the total amount of ground
water withdrawn during any consecutive twelve-month period between July 1,
1987, and June 30, 1992, together with such savings as can be demonstrated to
have been achieved through water conservation; however, with respect to a
political subdivision, an authority serving a political subdivision or a
community waterworks regulated by the Department of Health, the permit shall be
issued for the total amount of ground water withdrawn during any consecutive
twelve-month period between July 1, 1980, and June 30, 1992, together with such
savings as can be demonstrated to have been achieved through water
conservation.
B. Persons holding a certificate of ground water right issued
on or after July 1, 1991, and prior to July 1, 1992, in the Eastern Virginia or
Eastern Shore Groundwater Management Areas and currently withdrawing ground
water pursuant to the certificate shall file an application for a ground water
withdrawal permit on or before December 31, 1993, in order to obtain a permit
for withdrawals. The BoardDirector
shall issue ground water withdrawal permits for the total amount of ground
water withdrawn during any consecutive twelve-month period between July 1,
1988, and June 30, 1993, together with such savings as can be demonstrated to
have been achieved through water conservation.
C. Persons holding a permit to withdraw ground water issued on
or after July 1, 1991, and prior to July 1, 1992, in the Eastern Virginia or
Eastern Shore Groundwater Management Areas shall not be required to apply for a
ground water withdrawal permit until the expiration of the term of the permit
to withdraw ground water as provided in subsection C of § 62.1-266, and may
withdraw ground water pursuant to the terms and conditions of the permit to
withdraw ground water. Such persons may apply for a ground water withdrawal
permit allowing greater withdrawals of ground water than are allowed under an
existing permit, and the BoardDirector
in itshis
discretion may issue a permit for such greater withdrawals, upon consideration
of the factors set forth in § 62.1-263.
D. Persons holding a certificate of ground water right issued
prior to July 1, 1992, or a permit to withdraw ground water issued prior to
July 1, 1991, in the Eastern Virginia or Eastern Shore Groundwater Management
Areas, who have not withdrawn ground water prior to July 1, 1992, may initiate
a withdrawal on or after July 1, 1992, pursuant to the terms and conditions of
the certificate or permit. The persons shall file an application for a ground
water withdrawal permit on or before December 31, 1995, and may continue
withdrawing ground water under the terms and conditions of their certificate or
permit until the required ground water withdrawal permit application is acted
on by the BoardDirector,
provided that the ground water withdrawal permit application is filed on or
before December 31, 1995. The BoardDirector
shall issue a ground water withdrawal permit for the total amount of ground
water withdrawn and applied to a beneficial use during any consecutive
twelve-month period between July 1, 1992, and June 30, 1995, together with (i)
such savings as can be demonstrated to have been achieved through water
conservation and (ii) such amount as the BoardDirector
in itshis
discretion deems appropriate upon consideration of the factors set forth in §
62.1-263. This subsection shall not apply to a political subdivision, or an
authority serving a political subdivision, holding a permit or certificate for
a public water supply well for supplemental water during drought conditions,
which shall apply for a ground water withdrawal permit as provided in §
62.1-265.
E. Persons withdrawing ground water for agricultural or
livestock watering purposes in the Eastern Virginia or Eastern Shore
Groundwater Management Areas on or before July 1, 1992, shall file an application
for a ground water withdrawal permit on or before December 31, 1993, in order
to obtain a permit for withdrawals. The BoardDirector
shall issue ground water withdrawal permits for the total amount of ground
water withdrawn during any consecutive twelve-month period between July 1, 1983
and June 30, 1993, together with such savings as can be demonstrated to have
been achieved through water conservation.
F. Persons withdrawing ground water for agricultural or
livestock watering purposes, or pursuant to certificates of ground water right
or permits to withdraw ground water issued prior to July 1, 1992, in the
Eastern Virginia or Eastern Shore Groundwater Management Areas, may continue
such withdrawal until the required permit application is acted on by the BoardDirector,
provided that the permit application is filed by the appropriate deadline.
G. Persons applying for a ground water withdrawal permit may
request that they be permitted to withdraw more ground water than the amount to
which they may be entitled based on their historic usage and water conservation
as set forth in this section. The BoardDirector
in itshis
discretion may issue a permit for a greater amount than that which is based on
historic usage and water conservation, upon consideration of the factors set
forth in § 62.1-263.
H. Failure by any person covered by the provisions of
subsection A, B, D or E to file an application for a ground water withdrawal
permit prior to the expiration of the applicable period creates a presumption
that any claim to withdraw ground water based on history of usage has been
abandoned. In reviewing any application for a ground water withdrawal permit
subsequently made by such a person, the BoardDirector
shall consider the factors set forth in § 62.1-263.
§ 62.1-261. Permits for existing ground water withdrawals in newly established ground water management areas.
A. Persons withdrawing ground water in any area declared a
ground water management area on or after July 1, 1992, shall file an
application within six months after the ground water management area has been
declared in order to obtain a permit for withdrawals. The BoardDirector
shall issue permits for the total amount of ground water withdrawn during any
consecutive twelve-month period in the five years preceding said declaration,
together with such savings as can be demonstrated to have been achieved through
water conservation.
B. Persons withdrawing ground water for agricultural or
livestock watering purposes in any area declared a ground water management area
on or after July 1, 1992, shall file an application within six months after the
ground water management area has been declared in order to obtain a permit for
withdrawals. The BoardDirector
shall issue permits for the total amount of ground water withdrawn during any
consecutive twelve-month period in the ten-year period preceding such
declaration, together with such savings as can be demonstrated to have been
achieved through water conservation.
C. Persons withdrawing ground water in any area declared a
ground water management area on or after July 1, 1992, may continue such
withdrawal until the required permit application is acted on by the BoardDirector,
provided that the permit application is filed within the six-month period
following the declaration.
D. Persons applying for a ground water withdrawal permit
issued pursuant to this section may request that they be permitted to withdraw
more ground water than the amount to which they may be entitled based on their
historic usage as set forth in this section. The BoardDirector
in itshis
discretion may issue a permit for a greater amount than that which is based on
historic usage, upon consideration of factors set forth in § 62.1-263.
E. Failure by any person covered by the provisions of
subsection A or B to file an application for a ground water withdrawal permit
within the six months following the declaration of the ground water management
area creates a presumption that any claim to withdraw ground water based on
history of usage has been abandoned. In reviewing any application for a ground
water withdrawal permit subsequently made by such a person, the BoardDirector
shall consider the factors set forth in § 62.1-263.
§ 62.1-262. Permits for other ground water withdrawals.
Any application for a ground water withdrawal permit, except
as provided in §§ 62.1-260 and 62.1-261, shall include a water conservation and
management plan approved by the BoardDirector.
A water conservation and management plan shall include: (i) use of water-saving
plumbing and processes including, where appropriate, use of water-saving
fixtures in new and renovated plumbing as provided under the Uniform Statewide
Building Code; (ii) a water-loss reduction program; (iii) a water-use education
program; and (iv) mandatory reductions during water-shortage emergencies
including, where appropriate, ordinances prohibiting waste of water generally
and providing for mandatory water-use restrictions, with penalties, during
water-shortage emergencies. The BoardDirector
shall approve all water conservation plans in compliance with subdivisions (i)
through (iv) of this section.
§ 62.1-263. Criteria for issuance of permits.
When reviewing an application for a permit to withdraw ground
water, or an amendment to a permit, the BoardDirector
may consider the nature of the proposed beneficial use, the proposed use of
alternate or innovative approaches such as aquifer storage and recovery systems
and surface and ground water conjunctive uses, climatic cycles, unique
requirements for nuclear power stations, economic cycles, population
projections, the status of land use and other necessary approvals, and the
adoption and implementation of the applicant's water conservation and
management plan. In no case shall a permit be issued for more ground water than
can be applied to the proposed beneficial use.
When proposed uses of ground water are in conflict or when available supplies of ground water are insufficient for all who desire to use them, preference shall be given to uses for human consumption, over all others.
In evaluating permit applications, the BoardDirector
shall ensure that the maximum possible safe supply of ground water will be
preserved and protected for all other beneficial uses.
In evaluating the available ground water with respect to
permit applications for new or expanded withdrawals in the Eastern Virginia or
Eastern Shore Groundwater Management Areas, the BoardDirector
shall use the average of the actual historical ground water usage from the
inception of the ground water withdrawals of a political subdivision or
authority operating a ground water and surface water conjunctive use system and
shall not use the total permit capacity of such system in determining such
availability.
§ 62.1-264. Permits for public water supplies.
To ensure that any ground water withdrawal permit issued for a
public water supply does not impact a waterworks operation permit issued
pursuant to § 32.1-172, the maximum permitted daily withdrawal shall be set by
the BoardDirector
at a level consistent with the requirements and conditions contained in the
waterworks operation permit. This section shall not limit the authority of the BoardDirector
to reduce or eliminate ground water withdrawals by a waterworks if necessary to
protect human health or the environment. InThe
Board, in promulgating regulations to implement this section, and the
Director, in administering such regulations and this chapter, the
Board shall consult and cooperate with the State Health Department
to the end that effective, equitable management of ground water and
safeguarding of public health will be attained to the maximum extent possible.
§ 62.1-265. Drought relief wells.
A political subdivision, or an authority serving a political
subdivision, holding a certificate of ground water right issued prior to July
1, 1992, or a permit to withdraw ground water issued prior to July 1, 1992, in
the Eastern Virginia or Eastern Shore Groundwater Management Areas, for the
operation of a public water supply well for the purpose of providing supplemental
water during drought conditions, shall file an application for a ground water
withdrawal permit on or before December 31, 1992. The BoardDirector
shall issue ground water withdrawal permits for supplemental drought relief
wells for the amount of ground water needed annually to meet human consumption
needs as documented by a water conservation and management plan approved by the
BoardDirector
as provided in § 62.1-262. Any ground water withdrawal permits for supplemental
drought relief wells shall be issued with the condition that withdrawals may
only be made at times that mandatory water use restrictions have been
implemented pursuant to the water conservation and management plan.
§ 62.1-266. Ground water withdrawal permits.
A. The BoardDirector
may issue any ground water withdrawal permit upon terms, conditions and
limitations necessary for the protection of the public welfare, safety and
health.
B. Applications for ground water withdrawal permits shall be
in a form prescribed by the BoardDirector and
shall contain such information, consistent with this chapter, as the BoardDirector
deems necessary.
C. All ground water withdrawal permits issued by
the Board under this chapter shall have a fixed term not to exceed
ten years. The term of a ground water withdrawal permit issued by the Board
shall not be extended by modification beyond the maximum duration, and the
permit shall expire at the end of the term unless a complete application for a
new permit has been filed in a timely manner as required by the regulations of
the Board, and the BoardDirector
is unable, through no fault of the permittee, to issue a new permit before the
expiration date of the previous permit. Any permit to withdraw ground water
issued by the Board on or after July 1, 1991,
and prior to July 1, 1992, shall expire ten years after the date of its
issuance.
D. Renewed ground water withdrawal permits shall be for a withdrawal amount that includes such savings as can be demonstrated to have been achieved through water conservation, provided that a beneficial use of the permitted ground water can be demonstrated for the following permit term.
E. Any permit issued by the Board under
this chapter may, after notice and opportunity for a hearing, be amended or
revoked on any of the following grounds or for good cause as may be provided by
the regulations of the Board:
1. The permittee has violated any regulation or
order of the Board or order of the
Director pertaining to ground water, any condition of a ground
water withdrawal permit, any provision of this chapter, or any order of a
court, where such violation presents a hazard or potential hazard to human
health or the environment or is representative of a pattern of serious or
repeated violations which, in the opinion of the BoardDirector,
demonstrates the permittee's disregard for or inability to comply with
applicable laws, regulations, or requirements;
2. The permittee has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a permit, or in any other report or document required under this chapter or under the ground water withdrawal regulations of the Board;
3. The activity for which the permit was issued endangers human health or the environment and can be regulated to acceptable levels by amendment or revocation of the permit; or
4. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of the withdrawal controlled by the permit necessary to protect human health or the environment.
F. No application for a ground water withdrawal permit shall
be considered complete unless the applicant has provided the Executive Director
of
the Board with notification from the governing body of the county,
city or town in which the withdrawal is to occur that the location and
operation of the withdrawing facility is in compliance with all ordinances
adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2. The
provisions of this subsection shall not apply to any applicant exempt from
compliance under Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2.
G. A ground water withdrawal permit shall authorize withdrawal of a specific amount of ground water through a single well or system of wells, including a backup well or wells, or such other means as the withdrawer specifies.
§ 62.1-267. Issuance of special exceptions.
A. The BoardDirector
may issue special exceptions to allow the withdrawal of ground water in cases
of unusual situations where requiring the user to obtain a ground water
withdrawal permit would be contrary to the intended purpose of the Act.
B. In reviewing an application for a special exception, the BoardDirector
may consider the amount and duration of the proposed withdrawal, the beneficial
use intended for the ground water, the return of the ground water to the
aquifer, and the effect of the withdrawal on human health and the environment.
Any person requesting a special exception shall submit an application to the BoardDirector
containing such information as the Board shall require by regulation adopted
pursuant to this chapter.
C. Any special exception issued by the BoardDirector
shall state the terms pursuant to which the applicant may withdraw ground
water, including the amount of ground water that may be withdrawn in any period
and the duration of the special exception. No special exception shall be issued
for a term exceeding ten years.
D. A violation of any term or provision of a special exception shall subject the holder thereof to the same penalties and enforcement procedures as would apply to a violation of a ground water withdrawal permit.
E. The BoardDirector
shall have the power to amend or revoke any special exception after notice and
opportunity for hearing on the grounds set forth in subsection D of § 62.1-266
for amendment or revocation of a ground water withdrawal permit.
§ 62.1-268. Issuance of special orders.
A. The BoardDirector
may issue special orders (i) requiring any person who has violated the terms
and provisions of a ground water withdrawal permit issued by the BoardDirector
to comply with such terms and provisions; (ii) requiring any person who has
failed to comply with a directive from the BoardDirector
to comply with such directive; or (iii) requiring any person who has failed to
comply with the provisions of this chapter or any decision of the BoardDirector
pertaining to ground water to comply with such provision or decision.
B. Such special orders are to be issued only after a hearing
with at least thirty days' notice to the affected person of the time, place and
purpose thereof, and they shall become effective not less than fifteen days
after service by certified mail, sent to the last known address of such person,
with the time limits counted from the date of such mailing; however, if the BoardDirector
finds that any such person is grossly affecting or presents an imminent and
substantial danger to (i) the public welfare, safety or health; (ii) a public
water supply; or (iii) commercial, industrial, agricultural or other beneficial
uses, it may issue, without advance notice or hearing, an emergency special
order directing the person to cease such withdrawal immediately and shall
provide an opportunity for a hearing, after reasonable notice as to the time and
place thereof to the person, to affirm, modify, amend or cancel such emergency
special order. If a person who has been issued such a special order or an
emergency special order is not complying with the terms thereof, the BoardDirector
may proceed in accordance with § 62.1-269, and where the order is based on a
finding of an imminent and substantial danger, the court shall issue an
injunction compelling compliance with the emergency special order pending a
hearing by the BoardDirector.
If an emergency special order requires cessation of a withdrawal, the BoardDirector
shall provide an opportunity for a hearing within forty-eight hours of the
issuance of the injunction.
C. The provisions of this section notwithstanding, the BoardDirector
may proceed directly under § 62.1-270 for any past violation or violations of
any provision of this chapter or any regulation duly promulgated hereunder.
D. With the consent of any person who has violated or failed,
neglected or refused to obey any regulation of the Board or
order of the BoardDirector
pertaining to ground water, any condition of a ground water withdrawal permit
or any provision of this chapter, the BoardDirector
may provide, in an order issued by the BoardDirector
against such person, for the payment of civil charges for past violations in
specific sums not to exceed the limit specified in § 62.1-270. Such civil
charges shall be instead of any appropriate civil penalty which could be
imposed under subsection A of § 62.1-270 and shall not be subject to the provisions
of § 2.2-514.
§ 62.1-269. Enforcement by injunction, etc.
Any person violating or failing, neglecting or refusing to
obey any rule, regulation, order, standard or requirement of the Board or
the Director pertaining to ground water, any provision of any
ground water withdrawal permit issued by the BoardDirector,
or any provision of this chapter may be compelled to obey same and to comply
therewith in a proceeding instituted by the BoardDepartment
in any appropriate court for injunction, mandamus or other appropriate remedy.
The BoardDepartment
shall be entitled to an award of reasonable attorneys' fees and costs in any
action brought by the BoardDirector
under this section in which it substantially prevails on the merits of the
case, unless special circumstances would make an award unjust.
§ 62.1-270. Penalties.
A. Any person who violates any provision of this chapter, or
who fails, neglects or refuses to comply with any order of the BoardDirector
pertaining to ground water, or order of a court, issued as herein provided,
shall be subject to a civil penalty not to exceed $25,000 for each violation
within the discretion of the court. Each day of violation of each requirement
shall constitute a separate offense.
Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred to be used for the purpose of abating environmental pollution therein in such manner as the court may, by order, direct, except that where the person in violation is such county, city or town itself, or its agent, the court shall direct such penalty to be paid to the State Treasurer for deposit into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of Title 10.1.
With the consent of any person in violation of this chapter,
the BoardDirector
may provide, in an order issued by the BoardDirector
against the person, for the payment of civil charges. These charges shall be in
lieu of the civil penalties referred to above. Such civil charges shall be
deposited by the State Treasurer into the Virginia Environmental Emergency
Response Fund.
B. Any person willfully or negligently violating any provision
of this chapter, any regulation of the Board or
order of the BoardDirector
pertaining to ground water, any condition of a ground water withdrawal permit
or any order of a court shall be guilty of a misdemeanor punishable by
confinement in jail for not more than twelve months and a fine of not less than
$2,500 nor more than $25,000, either or both. Any person who knowingly violates
any provision of this chapter, any regulation or order of
the Board or order of the Director pertaining to
ground water, any condition of a ground water withdrawal permit or any order of
a court issued as herein provided, or who knowingly makes any false statement
in any form required to be submitted under this chapter shall be guilty of a
felony punishable by a term of imprisonment of not less than one year nor more
than three years, or in the discretion of the jury or the court trying the case
without a jury, confinement in jail for not more than twelve months and a fine
of not less than $5,000 nor more than $50,000 for each violation. Any defendant
that is not an individual shall, upon conviction of a violation under this
subsection, be sentenced to pay a fine of not less than $10,000. Each day of
violation of each requirement shall constitute a separate offense.
C. Any person who knowingly violates any provision of this chapter, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily harm, shall, upon conviction, be guilty of a felony punishable by a term of imprisonment of not less than two years nor more than fifteen years and a fine of not more than $250,000, either or both. A defendant that is not an individual shall, upon conviction of a violation under this subsection, be sentenced to pay a fine not exceeding the greater of one million dollars or an amount that is three times the economic benefit realized by the defendant as a result of the offense. The maximum penalty shall be doubled with respect to both fine and imprisonment for any subsequent conviction of the same person under this subsection.
D. Criminal prosecution under this section shall be commenced within three years of discovery of the offense, notwithstanding the limitations provided in any other statute.
§ 67-401. Permitting process for clean coal projects.
To the extent authorized by federal law, the State
Air Pollution Control BoardDepartment of
Environmental Quality shall implement permit processes that
facilitate the construction of clean coal projects in the Commonwealth by,
among such other actions as it deems appropriate, giving priority to processing
permit applications for clean coal projects.
2. That all licenses, permits, and certificates issued and granted by the State Air Pollution Control Board and the State Water Control Board and in effect as of the effective date of this act shall continue in effect on the terms of such license, permit, or certificate until expiration. The Director shall have the exclusive authority to act on any required submissions and to reissue, amend, or revoke such licenses, permits, and certificates. As of the effective date of this act, any communications or submissions of information required prior to expiration regarding such licenses, permits, or certificates shall be made to the Director.
3. That one additional member of the State Air Pollution Control Board shall be appointed to an initial term of two years and the other additional member for an initial term of three years, and all members shall serve terms of four years thereafter.