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2013 SESSION
13100744DBe it enacted by the General Assembly of Virginia:
1. That §§ 32.1-163, 32.1-164.1:01, and 32.1-164.1:2 of the Code of Virginia are amended and reenacted as follows:
§ 32.1-163. Definitions.
As used in this article, unless the context clearly requires a different meaning:
"Alternative discharging sewage system" means any
device or system which that results in a point source
discharge of treated sewage for which the Board may issue a permit authorizing
construction and operation when such system is regulated by the State Water
Control Board pursuant to a general Virginia Pollutant Discharge Elimination
System permit issued for an individual single family dwelling with flows less
than or equal to 1,000 gallons per day.
"Alternative onsite sewage system" or "alternative onsite system" means a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge.
"Betterment loan" means a loan to be provided by
private lenders either directly or through a state agency, authority or
instrumentality or a locality or local or regional authority serving as a
conduit lender, to repair, replace, or upgrade a
conventional onsite, an
alternative onsite sewage system, or an alternative discharging
sewage system for the purpose of reducing threats to public health and ground
and surface waters, which loan is secured by a lien with a priority equivalent
to the priority of a lien securing an assessment for local improvements under §
15.2-2411.
"Conduit lender" means a state agency, authority or instrumentality or a locality, local or regional authority or an instrumentality thereof serving as a conduit lender of betterment loans.
"Conventional onsite sewage system" means a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield.
"Licensed onsite soil evaluator" means a person who is licensed under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as an onsite soil evaluator. A licensed onsite soil evaluator is authorized to evaluate soils and soil properties in relationship to the effects of these properties on the use and management of these soils as the locations for onsite sewage systems.
"Maintenance" means performing adjustments to
equipment and controls and in-kind replacement of normal wear and tear parts
such as light bulbs lightbulbs, fuses, filters,
pumps, motors, or other like components. Maintenance includes pumping the tanks
or cleaning the building sewer on a periodic basis. Maintenance shall not
include replacement of tanks, drainfield piping, distribution boxes, or work
requiring a construction permit and installer.
"Operate" means the act of making a decision on one's own volition (i) to place into or take out of service a unit process or unit processes or (ii) to make or cause adjustments in the operation of a unit process at a treatment works.
"Operation" means the biological, chemical, and mechanical processes of transforming sewage or wastewater to compounds or elements and water that no longer possess an adverse environmental or health impact.
"Operator" means any individual employed or contracted by any owner, who is licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as being qualified to operate, monitor, and maintain an alternative onsite sewage system.
"Owner" means the Commonwealth or any of its
political subdivisions, including sanitary districts, sanitation district
commissions and authorities, any individual, any group of individuals acting
individually or as a group, or any public or private institution, corporation,
company, partnership, firm or association which that owns or proposes to own a
sewerage system or treatment works.
"Regulations" means the Sewage Handling and Disposal Regulations, heretofore or hereafter enacted or adopted by the State Board of Health.
"Review Board" means the State Sewage Handling and Disposal Appeals Review Board.
"Sewage" means water-carried and non-water-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.
"Sewerage system" means pipelines or conduits, pumping stations and force mains and all other construction, devices and appliances appurtenant thereto, used for the collection and conveyance of sewage to a treatment works or point of ultimate disposal.
"Subsurface drainfield" means a system installed within the soil and designed to accommodate treated sewage from a treatment works.
"Transportation" means the vehicular conveyance of sewage.
"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, septic tanks, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment.
§ 32.1-164.1:01. Onsite Sewage Indemnification Fund.
A. There is hereby created the Onsite Sewage Indemnification fund Fund
(the Fund) whose purpose is to receive moneys generated by
a portion of the fees collected by the Department of Health pursuant to
subsections C and E of § 32.1-164 and appropriated by the Commonwealth for the
purpose of assisting any Virginia real property owner holding a valid permit to
operate an onsite sewage system when such system or components thereof fail
within three years of construction and such failure results from the negligence
of the Department of Health. The fund may also
be used, in the discretion of the Board, to support the program for training
and recognition of authorized onsite soil evaluators.
The Board, in its sole discretion, may make up to 25 percent of the amount in the Fund on the first day of the fiscal year available for that fiscal year to provide betterment loans or to guarantee betterment loans authorized by § 32.1-164.1:2.
B. Ten Twenty-five dollars of each
fee collected by the Department of Health pursuant to subsections C and E of §
32.1-164 shall be deposited by the Comptroller to this
fund the Fund
to be appropriated for the purposes of this section to the Department of Health
by the General Assembly as it deems necessary.
C. The owner of an onsite sewage system that has been
permitted by the Department of Health may cause, by filing a request for payment
from the fund Fund
within one year from the date the system or components thereof failed, the
Commissioner to review the circumstances of the onsite sewage system failure,
if the onsite sewage system has failed within three years of construction. Upon
the Commissioner's finding that the onsite sewage system was permitted by the
Department and (i) the system or components thereof failed within three years
of construction; (ii) that specific actions of the Department were negligent
and that those actions caused the failure; and (iii) that the owner filed a
request for payment from the fund Fund within one year from the
date the system or components thereof failed, the Commissioner shall, subject
to the limitations stated herein, reimburse the owner for the reasonable cost
of following the Board's regulations to repair or replace the failed onsite
sewage system or components thereof.
D. Prior to receiving payment from the fund Fund, the owner shall follow
the requirements in the Board's regulations to repair or replace the failed
onsite sewage system or components thereof.
E. The total amount an owner may receive in payment from the fund Fund
shall not exceed $30,000. Only the costs of the system that failed or the costs
of labor and equipment required to repair or replace the failed onsite sewage
system or components thereof are reimbursable by the fund Fund.
F. If the Commissioner finds that the system was permitted by the Department and has failed within three years of construction and that the failure resulted from faulty construction or other private party error, the Commissioner may assist the owner of the failed system in seeking redress from the system's builder or other private party.
G. Every request for payment from the fund Fund shall be forever barred
unless the owner has filed a complete application as required by the
Department. The request shall be filed with the Commissioner within one year
from the date that the onsite sewage system or components thereof first failed.
However, if the owner was under a disability at the time the cause of action
accrued, the tolling provisions of § 8.01-229 shall apply. The owner shall mail
the request for payment from the fund Fund via the United States
Postal Service by certified mail, return receipt requested, addressed to the
Commissioner.
In any action contesting the filing of the request for payment
from the fund Fund,
the burden of proof shall be on the owner to establish mailing and receipt of
the notice in conformity with this section. The signed receipt indicating
delivery to the Commissioner, when admitted into evidence, shall be prima facie
evidence of filing of the request for payment from the fund Fund under this section. The
request for payment from the fund Fund shall be deemed to be
timely filed if it is sent by certified mail, return receipt requested, and if
the official receipt shows that the mailing was within the prescribed time
limits.
Notwithstanding any provision of this article, the liability
for any payment from the fund Fund shall be conditioned upon
the execution by the owner of a release approved by the Attorney General of all
claims against the Commonwealth, its political subdivisions, agencies, and
instrumentalities and against any officer or employee of the Commonwealth in connection
with or arising out of the occurrence complained of.
H. The Commissioner and the Attorney General shall
cooperatively develop an actuarially sound program and policy for identifying,
evaluating, and processing requests for payment from the fund Fund and for providing
and guaranteeing betterment loans.
I. If the Commissioner refuses the request for payment from
the fund Fund,
the owner may appeal the refusal to the State Health Department Sewage Handling
and Disposal Appeal Review Board.
The Board may promulgate regulations pursuant to the
Administrative Process Act (§ 2.2-4000 et seq.) for the administration of the fund Fund
consistent with this chapter.
In the event the fund Fund is insufficient to meet
requests for payment from the fund Fund, this section and the
creation of the fund Fund shall not be construed to
provide liability on the part of the Department or any of its personnel where
no such liability existed prior to July 1, 1994.
§ 32.1-164.1:2. Eligibility for betterment loans to repair or replace failing onsite sewage systems.
A. The Board shall establish a betterment loan eligibility
program to assist owners with the repair, replacement, or upgrade of failing or
noncompliant conventional
onsite, alternative onsite, and
alternative discharging sewage systems,
and the. The
Board may utilize the funds
of the Onsite Sewage Indemnity Fund to provide or guarantee betterment loans
to the extent authorized by § 32.1-164.1:01 and may
identify sources for betterment loans to be provided by private lenders,
directly or through conduit lenders. In addition, owners may also apply to the
Department for betterment loan eligibility to upgrade a
conventional onsite, an
alternative onsite,
or an alternative discharging
sewage system that is not failing, provided such upgrade is for the purposes of
reducing threats to public health, and ground and surface waters, including the
reduction of nitrogen discharges.
B. Upon determination by the Department that the owner has one or more conventional onsite, alternative onsite, or alternative discharging sewage systems that are out of compliance with those regulations promulgated pursuant to this chapter, or in need of repair or replacement, the owner shall follow the requirements in the Board's regulations to initiate the repair or replacement of such systems. If the owner desires to be qualified by the Department to receive a betterment loan, at any time before the repair or replacement is completed, he shall provide the Department with an estimate of the approximate cost of such remedial work, which the Department shall accept. The issuance of a permit by the Department to repair or replace a conventional onsite, an alternative onsite, or an alternative discharging sewage system, combined with an estimate provided by the owner to the Department, shall demonstrate eligibility for a betterment loan. Upon a determination of eligibility, the Department shall notify the owner in writing. If the Department refuses the request for an eligibility letter, the owner may appeal the refusal to the State Health Department Sewage Handling and Disposal Appeal Review Board. It shall be the sole responsibility of the owner to secure the betterment loan from or through a private lender. Local health departments may provide a list of lenders available for this purpose. Nothing in this section shall be construed as allowing construction or modification of a conventional onsite, an alternative onsite, or an alternative discharging sewage system without a permit issued by the Department.
C. Betterment loans made pursuant to this section shall be recorded in the deed book of the circuit court clerk's office for the locality in which the land is located and an abstract of the loan and betterment loan eligibility letter issued by the Department shall be indexed in the name of the owner. Betterment loans made pursuant to this section may be recorded in increments by the private lender as the repair or replacement of the conventional onsite, alternative onsite, or alternative discharging sewage system is completed, provided that in no event shall the total amount recorded exceed the estimate provided to the Department, without the Department approving an amendment to the repair permit, and issuing a revised betterment loan eligibility letter. The Department may, subject to appropriate waivers for economic hardship, charge the owner a fee not to exceed $50 for each betterment loan eligibility letter request made by an owner. The Department may require that the owner or private lender provide the Department with proof that any betterment loan has been recorded in the deed book of the circuit court clerk's office for the locality in which the land is located.
The incurrence of a betterment loan pursuant to this section shall not be considered a breach of limitation or prohibition contained in a note, mortgage, or contract on the transfer of an interest in the owner's property.
D. Where agreeable to the private lender and the conduit lender, if any, a locality may act as the collection agent for the payments made by the owner on a betterment loan. Any such payments collected by the locality shall be deemed to be held in trust by the locality for benefit of the private lender and conduit issuer, if any. The locality may receive a fee payable by the private lender or conduit loan provider, if any, for such service not to exceed one-eighth of one percent of the payments collected.