SB657: Air Pollution Control Board and State Water Control Board; transfer of authority.
Be it enacted by the General Assembly of Virginia:
1. That §§ 3.2-401, 10.1-1186.3, 10.1-1306 through 10.1-1307.02, 10.1-1307.04, 10.1-1308.1 through 10.1-1314, 10.1-1315, 10.1-1316, 10.1-1318, 10.1-1320, 10.1-1320.1, 10.1-1322, 10.1-1322.4, 10.1-1333, 15.2-2403.3, as it may become effective, 15.2-5101, 28.2-1205.1, 46.2-1601, 62.1-44.3, as it is currently effective and as it may become effective, 62.1-44.14, 62.1-44.15:81, 62.1-44.15:83, 62.1-104, 62.1-242, and 62.1-255 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 1 of Chapter 3.1 of Title 62.1 a section numbered 62.1-44.6:1, and by adding sections numbered 62.1-248.2 and 62.1-263.1 as follows:
§ 3.2-401. Exclusions from chapter.
This chapter shall not apply to any agricultural activity to
which: (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title
10.1; or (ii) a water-related permit issued by the State Water
Control Board, Department of Environmental Quality applies.
§ 10.1-1186.3. Additional powers of Boards and the Department; 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, or the Director, in his 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 by the Board or the issuance of a permit by the Department in which it is apparent that there are significant issues of disagreement among interested persons and for which the Board or the Department finds that the use of a mediation or dispute resolution proceeding is in the public interest. The Boards or the Department 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 Department;
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 or the Department 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 Department or 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 or the Department. 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 or the Department'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 or the Department, but may
be considered by a Board the Department in issuing a permit or
by a Board in promulgating a regulation.
D. Each Board and the Department 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 Department 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 the Department or a Board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation, respectively.
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.
§ 10.1-1306. Inspections, investigations, etc.
The Board Department 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. Further powers and duties of Board and Department.
A. The Board shall have the power to control and regulate its
internal affairs;. The Department shall have the power to
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 § 10.1-1307.05 and 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, it the Department may in its discretion
grant local variances therefrom, if it finds after an investigation and hearing
that local conditions warrant; except that no local variances shall be
granted from regulations adopted by the Board pursuant to § 10.1-1308 related
to the requirements of subsection E of §10.1-1308 or Article 4 (§ 10.1-1329 et
seq.). If local variances are permitted, the Board Department
shall issue an order to this effect. Such order shall be subject to revocation
or amendment at any time if the Board Department, 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, it the Department 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 the Board's 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
Department 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, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has resolved that the location and operation of the proposed facility or activity is suitable 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 Department shall 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 not:
1. Adopt any regulation limiting emissions from wood heaters; or
2. Enforce against a manufacturer, distributor, or consumer any federal regulation limiting emissions from wood heaters adopted after May 1, 2014.
H. The Board Department 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.
I. In granting a permit pursuant to this section, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit, pursuant to this section, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 10.1-1307.01. Further duties of Board and Department; localities particularly affected.
A. Before The Board, before promulgating a
regulation under consideration, or the Department, before granting a
variance to an existing regulation, or issuing a permit for the construction of
a new major source or for a major modification to an existing source, if the
Board finds it is found that there is a locality particularly
affected by the regulation, variance, or permit, the Board shall,
respectively:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in each locality 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 provide information regarding specific pollutants and the total quantity of each that 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 of and the planning district commission for such locality.
Written comments shall be accepted by the Board for at least
15 days after any hearing on the regulation, variance, or permit, unless
the Board votes to shorten the period. Written comments shall be accepted by
the Department for at least 15 days after any hearing on the variance or
permit.
B. Before If the Department finds, before
granting any variance to an existing regulation or issuing any permit for (i) a
new fossil fuel-fired generating facility with a capacity of 500 megawatts or
more, (ii) a major modification to an existing source that is a fossil fuel-fired
generating facility with a capacity of 500 megawatts or more, (iii) a new
fossil fuel-fired compressor station facility used to transport natural gas, or
(iv) a major modification to an existing source that is a fossil fuel-fired
compressor station facility used to transport natural gas, if the Board
finds that there is a locality particularly affected by such variance or
permit, the Board Department shall:
1. Require the applicant to publish a notice in at least one
local paper of general circulation in any locality particularly affected at
least 60 days prior to the close of any public comment period. Such notice
shall (i) contain a statement of the estimated local impact of the proposed
action; (ii) provide information regarding specific pollutants and the total
quantity of each that may be emitted; (iii) list the type, quantity, and source
of any fuel to be used; (iv) advise the public how to request Board
consideration or as to the date and location of a public hearing;
and (v) advise the public where to obtain information regarding the proposed
action. The Department shall post such notice on the Department website and on
a Department social media account.
2. Require the applicant to mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.
Written comments shall be accepted by the Board
Department for at least 30 days after any hearing on such variance or
permit, unless the Board votes Director elects to shorten the
period.
C. For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.
§ 10.1-1307.02. Permit for generation of electricity during ISO-declared emergency.
A. As used in this section:
"Emergency generation source" means a stationary internal combustion engine that operates according to the procedures in the ISO's emergency operations manual during an ISO-declared emergency.
"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the Board pursuant to subsection B.
"Retail customer" has the same meaning ascribed thereto in § 56-576.
B. The Board shall adopt a general permit or permits
regulation for the use of back-up generation to authorize the construction,
installation, reconstruction, modification, and operation of emergency
generation sources during ISO-declared emergencies. Such general permit or
permits regulation shall include a definition of
"emergency" that is compatible with the ISO's emergency operations
manual. After adoption of such general permit or permits regulation,
any amendments to the Board's regulations necessary to carry out the provisions
of this section shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the
Administrative Process Act.
§ 10.1-1307.04. Greenhouse gas emissions inventory.
A. The Department shall conduct a comprehensive statewide baseline and projection inventory of all greenhouse gas (GHG) emissions and shall update such inventory every four years. The Board may adopt regulations necessary to collect from all source sectors data needed by the Department to conduct, update, and maintain such inventory.
B. The Board Department shall include the
inventory in the report required pursuant to subsection H of § 10.1-1307,
beginning with the report issued prior to October 1, 2022, and every four years
thereafter. The Department shall publish such inventory on its website, showing
changes in GHG emissions relative to an estimated GHG emissions baseline case
for calendar year 2010.
C. Any information, except emissions data, that is reported to or otherwise obtained by the Department pursuant to this section and that contains or might reveal proprietary information shall be confidential and shall be exempt from the mandatory disclosure requirements of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Each owner shall notify the Director or his representative of the existence of proprietary information if he desires the protection provided pursuant to this subsection.
§ 10.1-1308.1. Streamlined permitting process for qualified energy generators.
A. As used in this section:
"Biomass" means organic material that is available on a renewable or recurring basis, including:
1. Forest-related materials, including mill residues, logging residues, forest thinnings, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;
2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;
3. Animal waste, including manure and slaughterhouse and other processing waste;
4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes and wood contaminated with plastic;
5. Crops and trees planted for the purpose of being used to produce energy;
6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and
7. Municipal solid waste, excluding tires and medical and hazardous waste.
"Expedited process" means a process that (i)
requires the applicant to pay fees to the Commonwealth in connection with the
issuance and processing of the permit application that do not exceed $50 and
(ii) has a duration, from receipt of a complete permit application until final
action by the Board or Department on the application, not longer than 60
days.
"Qualified energy generator" means a commercial facility located in the Commonwealth with the capacity annually to generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product, that is generated or produced from biomass, and that is sold to an unrelated person or used in a manufacturing process.
B. The Board Department shall develop an
expedited process for issuing any permit that the Board it is
required to issue for the construction or operation of a qualified energy
generator. The development of the expedited permitting process shall be in
accordance with subdivision A 8 of § 2.2-4006; however, if the construction or
operation of a qualified energy generator is subject to a major new source
review program required by § 110(a)(2)(C) of the federal Clean Air Act, this
section shall not apply.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board Department 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 Board Department,
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 Department 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 Department 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
Board Department 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 Board
Department 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, it 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
Board Department finds that an owner who has been issued a special
order or an emergency special order is not complying with the terms thereof, it
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 Board Department, 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's Department'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 Board Department 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 Board Department 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 Board Department may deem appropriate.
The Board Department may require that such plan and instruments
be updated as appropriate. The Board Department 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 Department pursuant to hearing.
Any decision by the Board Department 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's Department'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 Department, 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 by the Board
Department, the Board Department 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.
§ 10.1-1312. Air pollution control districts.
A. The Board Department may create, within any
area of the Commonwealth, local air pollution control districts comprising a
city or county or a part or parts of each, or two or more cities or counties,
or any combination or parts thereof. Such local districts may be established by
the Board Department on its own motion or upon request of the
governing body or bodies of the area involved.
B. In each district there shall be a local air pollution
control committee, the members of which shall be appointed by the Board
Department from lists of recommended nominees submitted by the respective
governing bodies of each locality, all or a portion of which are included in
the district. The number of members on each committee shall be in the
discretion of the Board Department. When a district includes two
or more localities or portions thereof, the Board Department
shall apportion the membership of the committee among the localities, provided
that each locality shall have at least one representative on the committee. The
members shall not be compensated out of state funds, but may be reimbursed for
expenses out of state funds. Localities may provide for the payment of
compensation and reimbursement of expenses to the members and may appropriate
funds therefore. The portion of such payment to be borne by each locality shall
be prescribed by agreement.
C. The local committee is empowered to observe compliance with
the regulations of the Board and report instances of noncompliance to the
Board Department, to conduct educational programs relating to air
pollution and its effects, to assist the Department in its air monitoring
programs, to initiate and make studies relating to air pollution and its
effects, and to make recommendations to the Board Department.
D. The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies.
§ 10.1-1313. State Advisory Board on Air Pollution.
The Board Department is authorized to name qualified
persons to a State Advisory Board on Air Pollution.
§ 10.1-1314. Owners to furnish plans, specifications and information.
Every owner which the Board Department has
reason to believe is causing, or may be about to cause, an air pollution
problem shall on request of the Board Department furnish such
plans, specifications and information as may be required by the Board
Department 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.
§ 10.1-1315. Right of entry.
Whenever it is necessary for the purposes of this chapter, the
Board Department or any member, agent or employee thereof,
when duly authorized by the Board Director, 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 Department order, 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 Department order, 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 Department order,
or any provision of this chapter, or any permit condition, the Board
Department may provide, in any order issued by the Board
Department 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 Board Department 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 Department.
A. Any owner aggrieved by a final decision of the Board
Department 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 Board Department under § 10.1-1322 and who has exhausted
all available administrative remedies for review of the Board's
Department's decision, shall be entitled to judicial review of the
Board's Department'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
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.
§ 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 regulation, or Department order, 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 (i) this chapter or, (ii) any regulation of
the Board, or (iii) order of the Board Department, 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 and subject
to § 10.1-1322.01, permits may be issued, amended, revoked or terminated
and reissued by the Department 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 of the Board and orders of the Board
Department under the provisions of this chapter. To the extent allowed by
federal law, any person holding a permit who is intending to upgrade the
permitted facility by installing technology, control equipment, or other
apparatus that the permittee demonstrates to the satisfaction of the Director
will result in improved energy efficiency, will reduce the emissions of
regulated air pollutants, and meets the requirements of Best Available Control
Technology shall not be required to obtain a new, modified, or amended permit.
The permit holder shall provide the demonstration anticipated by this
subsection to the Department no later than 30 days prior to commencing
construction.
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 operating permit program established
pursuant to Title V of the federal Clean Air Act or (ii) the Governor
determines that such fees are needed earlier to maintain primacy over the
program. The annual fees shall be based on the actual emissions (as calculated
or estimated) of each regulated pollutant, as defined in § 502 of the federal
Clean Air Act, in tons per year, not to exceed 4,000 tons per year of each
pollutant for each source. The annual permit program fees shall not exceed a
base year amount of $25 per ton using 1990 as the base year, and shall be
adjusted annually by the Consumer Price Index as described in § 502 of the
federal Clean Air Act. Permit program fees for air pollution sources who receive
state operating permits in lieu of Title V operating permits shall be paid in
the first year and thereafter shall be paid biennially. The fees shall
approximate the direct and indirect costs of administering and enforcing the
permit program, and of administering the small business stationary source
technical and environmental compliance assistance program as required by the
federal Clean Air Act. The Board shall also collect promulgate
regulations establishing 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 and Appropriations, 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 Board Department, 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 federal law or regulation, 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 his
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. To the extent allowed by federal law or regulation, no demonstration
shall be required for the use of processed animal fat, processed fish oil, processed
vegetable oil, distillate oil, or any mixture thereof in place of the same
quantity of residual oil to fire industrial boilers.
§ 10.1-1333. Permitting process for clean coal projects.
To the extent authorized by federal law, the Board
Department 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.
§ 15.2-2403.3. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Stormwater service districts; allocation of revenues.
Any town located within a stormwater service district created
pursuant to this chapter shall be entitled to any revenues collected within the
town pursuant to subdivision 6 of § 15.2-2403, subject to the limitations set
forth therein, so long as the town maintains its own municipal separate storm
sewer system (MS4) permit issued by the State Water Control Board
Department of Environmental Quality or maintains its own stormwater service
district.
§ 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 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.
"Green roof" means a roof or partially covered roof consisting of plants, soil, or another lightweight growing medium that is installed on top of a waterproof membrane and designed in accordance with the Virginia Stormwater Management Program's standards and specifications for green roofs, as set forth in the Virginia BMP Clearinghouse.
"Improvements" means such repairs, replacements, additions, extensions and betterments of and to a 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 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 Board Department 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. § 2011, 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.
"System" means any sewage disposal system, sewer system, stormwater control system, water or waste system, and for authorities created under Article 6 (§ 15.2-5152 et seq.) of this chapter, such facilities as may be provided by the authority under § 15.2-5158.
"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.
§ 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 § 62.1-44.15:20 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 Wildlife Resources, 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 Board
Department 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 Board
Department 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 Board Department
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.
§ 46.2-1601. Licensing of dealers of salvage vehicles; fees.
A. It shall be unlawful for any person to engage in business in the Commonwealth as an auto recycler, salvage pool, or vehicle removal operator without first acquiring a license issued by the Commissioner for each such business at each location. The fee for the first such license issued or renewed under this chapter shall be $100 per license year or part thereof. The fee for each additional license issued or renewed under this chapter for the same location shall be $25 per license year or part thereof. However, no fee shall be charged for supplemental locations of a business located within 500 yards of the licensed location.
B. No license shall be issued or renewed for any person unless
(i) the licensed business contains at least 600 square feet of enclosed space,
(ii) the licensed business is shown to be in compliance with all applicable
zoning ordinances, and (iii) the applicant may (a) certify to the Commissioner
that the licensed business is permitted under a Virginia Pollutant Discharge
Elimination System individual or general permit issued by the State Water
Control Board Department of Environmental Quality for discharges of
storm water associated with industrial activity and provides the permit
number(s) from such permit(s) or (b) certify to the Commissioner that the
licensed business is otherwise exempt from such permitting requirements.
Nothing in this section shall authorize any person to act as a motor vehicle dealer
or salesperson without being licensed under Chapter 15 (§ 46.2-1500 et seq.)
and meeting all requirements imposed by such chapter.
C. Licenses issued under this section shall be deemed not to have expired if the renewal application and required fees as set forth in subsection A are received by the Commissioner or postmarked not more than 30 days after the expiration date of such license. Whenever the renewal application is received by the Commissioner or postmarked not more than 30 days after the expiration date of such license, the license fees shall be 150 percent of the fees provided for in subsection A.
D. The Commissioner may offer an optional multiyear license for any license set forth in this section. When such option is offered and chosen by the licensee, all fees due at the time of licensing shall be multiplied by the number of years for which the license will be issued.
§ 62.1-44.3. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate issued by the
Board Department.
"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 § 3.2-300 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.
§ 62.1-44.3. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate or permit issued
by the Board Department.
"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.
"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of § 62.1-44.15:55 have been met.
"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.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:
1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under § 208 of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 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 subdivision (10) of § 62.1-44.15.
"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 subdivision (7) of § 62.1-44.15.
"Ruling" means a ruling issued under subdivision (9) of § 62.1-44.15.
"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.
§ 62.1-44.6:1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 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, 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 Executive Director to 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. The Executive Director shall prepare, approve, and submit all
requests for appropriations and be responsible for all expenditures pursuant to
appropriations. The Executive Director shall be vested with all the authority
of the Board when it is not in session, except for the Board's authority to
consider permits pursuant to § 62.1-44.15:02 and to issue special orders
pursuant to subdivisions (8a) and (8b) of § 62.1-44.15 and subject to such
regulations as may be prescribed by the Board. In no event shall the Executive
Director have the authority to adopt or promulgate any regulation.
§ 62.1-44.15:81. Application and preparation of draft certification conditions.
A. Any applicant for a federal license or permit for a natural gas transmission pipeline greater than 36 inches inside diameter subject to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) shall submit a separate application, at the same time the Joint Permit Application is submitted, to the Department containing a description of all activities that will occur in upland areas, including activities in or related to (i) slopes with a grade greater than 15 percent; (ii) karst geology features, including sinkholes and underground springs; (iii) proximity to sensitive streams and wetlands identified by the Department of Conservation and Recreation or the Department of Wildlife Resources; (iv) seasonally high water tables; (v) water impoundment structures and reservoirs; and (vi) areas with highly erodible soils, low pH, and acid sulfate soils. Concurrently with the Joint Permit Application, the applicant shall also submit a detailed erosion and sediment control plan and stormwater management plan subject to Department review and approval.
B. After receipt of an application in accordance with subsection A, the Department shall issue a request for information about how the erosion and sediment control plan and stormwater management plan will address activities in or related to the upland areas identified in subsection A. The response to such request shall include the specific strategies and best management practices that will be utilized by the applicant to address challenges associated with each area type and an explanation of how such strategies and best management practices will ensure compliance with water quality standards.
C. At any time during the review of the application, but prior to issuing a certification pursuant to this article, the Department may issue an information request to the applicant for any relevant additional information necessary to determine (i) if any activities related to the applicant's project in upland areas are likely to result in a discharge to state waters and (ii) how the applicant proposes to minimize water quality impacts to the maximum extent practicable to protect water quality. The information request shall provide a reasonable amount of time for the applicant to respond.
D. The Department shall review the information contained in
the application, the response to the information request in subsection B, and
any additional information obtained through any information requests issued
pursuant to subsection C to determine if any activities described in the
application or in any additional information requests (i) are likely to result
in a discharge to state waters with the potential to adversely impact water
quality and (ii) will not be addressed by the Virginia Water Protection Permit
issued for the activity pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.). The
Department of Wildlife Resources, the Department of Conservation and
Recreation, the Department of Health, and the Department of Agriculture and
Consumer Services shall consult with the Department during the review of the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C. Following the conclusion of its
review, the Department shall develop a draft certification or denial. A draft
certification, including (i) any additional conditions for activities in upland
areas necessary to protect water quality and (ii) a condition that the
applicant shall not commence land-disturbing activity prior to approval by the
Department of the erosion and sediment control plan and stormwater management
plan required pursuant to subsection E, shall be noticed for public comment and
potential issuance by the Department or the Board pursuant to §
62.1-44.15:02. The Department shall make the information contained in the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C available to the public.
E. Notwithstanding any applicable annual standards and specifications for erosion and sediment control or stormwater management pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.), the applicant shall not commence land-disturbing activity prior to resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and approval by the Department of an erosion and sediment control plan and stormwater management plan in accordance with applicable regulations. The Department shall act on any plan submittal within 60 days after initial submittal of a completed plan to the Department. The Department may issue either approval or disapproval and shall provide written rationale for its decision. The Department shall act on any plan that has been previously disapproved within 30 days after the plan has been revised and resubmitted for approval.
F. No action by either the Department or the Board on a certification pursuant to this article shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval.
G. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
H. Neither the Department nor the Board shall expressly waive certification of a natural gas transmission pipeline of greater than 36 inches inside diameter under § 401 of the federal Clean Water Act (33 U.S.C. § 1341). The Department or the Board shall act on any certification request within a reasonable period of time pursuant to federal law. Nothing in this section shall be construed to prohibit the Department or the Board from taking action to deny a certification in accordance with the provisions of § 401 of the federal Clean Water Act (33 U.S.C. § 1341).
§ 62.1-44.15:83. Requests for public hearing, hearings, and final decisions procedures.
A. The issuance of a certification pursuant to this article
shall be a permit action for purposes of § 62.1-44.15:02.
B. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
§ 62.1-104. Definitions.
(1) Except as modified below, the definitions contained in Title 1 shall apply in this chapter.
(2) "Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
(3) "Impounding structure" means a man-made device, whether a dam across a watercourse or other structure outside a watercourse, used or to be used for the authorized storage of flood waters for subsequent beneficial use.
(4) "Watercourse" means a natural channel having a well-defined bed and banks and in which water flows when it normally does flow. For the purposes hereof they shall be limited to rivers, creeks, streams, branches, and other watercourses which are nonnavigable in fact and which are wholly within the jurisdiction of the Commonwealth.
(5) "Riparian land" is land which is contiguous to and touches a watercourse. It does not include land outside the watershed of the watercourse. Real property under common ownership and which is not separated from riparian land by land of any other ownership shall likewise be deemed riparian land, notwithstanding that such real property is divided into tracts and parcels which may not bound upon the watercourse.
(6) "Riparian owner" is an owner of riparian land.
(7) "Average flow" means the average discharge of a stream at a particular point and normally is expressed in cubic feet per second. It may be determined from actual measurements or computed from the most accurate information available.
(8) "Diffused surface waters" are those which, resulting from precipitation, flow down across the surface of the land until they reach a watercourse, after which they become parts of streams.
(9) "Floodwaters" means water in a stream which is over and above the average flow.
(10) "Court" means the circuit court of the county or city in which an impoundment is located or proposed to be located.
§ 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means 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 Board 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.
§ 62.1-248.2. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise:
"Agricultural irrigation" means irrigation that is used to support any operation devoted to the bona fide production of crops, animals, or fowl, including the production of fruits and vegetables of any kind; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silvicultural activity.
"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.
"Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Department" means the Department of Environmental Quality.
"Eastern Shore Groundwater Management Area" means the ground water management area declared by the Board encompassing the Counties of Accomack and Northampton.
"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 the 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 Board permitting the withdrawal of a specified quantity of ground water in a ground water management area.
"Irrigation" means the controlled application of water through man-made systems to supply water requirements not satisfied by rainfall to assist in the growing or maintenance of vegetative growth.
"Nonagricultural irrigation" means all irrigation other than agricultural irrigation.
"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 the Commonwealth or any other state or country.
"Surficial aquifer" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.
§ 62.1-263.1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
2. That §§ 10.1-1322.01 and 62.1-44.15:02 of the Code of Virginia are repealed.
3. That any permits or orders issued by the Air Pollution Control Board or the State Water Control Board prior to the effective date of this act shall continue in full force and are enforceable by the Department of Environmental Quality.
4. That nothing in this act shall be construed to limit or impact § 3.2-301 or 15.2-2288.6 of the Code of Virginia.
5. That at each regular meeting of the Air Pollution Control Board and the State Water Control Board (the Boards), the Department of Environmental Quality (the Department) shall provide an overview and update regarding any controversial permits pending before the Department that are relevant to each board. Immediately after such presentation by the Department, the Boards shall have an opportunity to respond to the Department's presentation and provide commentary regarding such pending permits. Before rendering a final decision on a controversial permit, the Department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the Department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the Department's public comment summary and response. No new information will be accepted at that time.
For purposes of this enactment, "controversial permit" means an air or water permitting action for which a public hearing has been granted pursuant the provisions of the sixth enactment of this act. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.
6. That any changes to regulations necessary to implement the provisions of this act shall include the following criteria for requesting and granting a public hearing on a permit action during a public comment period in those instances where a public hearing is not mandatory under state or federal law or regulation. During the public comment period on permit action, interested persons may request a public hearing to contest such action or the terms and conditions thereof. Requests for a public hearing shall contain the following information: (i) the name and postal mailing or email address of the requester; (ii) the names and addresses of all persons for whom the requester is acting as a representative (for the purposes of this requirement, "person" includes an unincorporated association); (iii) the reason for the request for a public hearing; (iv) a brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and (v) where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Air Pollution Control Board or the State Water Control Board, as applicable. Upon completion of the public comment period on a permit action, the Director of the Department of Environmental Quality shall review all timely requests for public hearing filed during the public comment period on the permit action and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the Director finds the following: (a) that there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing; (b) that the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and (c) that the action requested by the interested party is not on its face inconsistent with, or in violation of, the basic laws of the State Air Pollution Control Board if the permit action is an air permit action, or the basic laws of the State Water Control Board if the permit action is a water permit action, federal law, or any regulation promulgated thereunder. The Director of the Department of Environmental Quality shall, forthwith, notify by email or mail at his last known address (1) each requester and (2) the applicant or permittee of the decision to grant or deny a public hearing. If the request for a public hearing is granted, the Director shall schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing. The Director shall cause, or require the applicant to publish, notice of a public hearing to be published once, in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date. In making its decision, the Department shall consider (A) the verbal and written comments received during the public comment period and public hearing made part of the record, (B) any commentary of the Board, and (C) the agency files. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 10.1-1307.01 of the Code of Virginia, as amended by this act, or § 62.1-44.15:01 of the Code of Virginia. In addition, the Director may, in his discretion, convene a public hearing on a permit action.
Be it enacted by the General Assembly of Virginia:
1. That §§ 3.2-401, 10.1-1186.3, 10.1-1306 through 10.1-1307.02, 10.1-1307.04, 10.1-1308.1 through 10.1-1314, 10.1-1315, 10.1-1316, 10.1-1318, 10.1-1320, 10.1-1320.1, 10.1-1322, 10.1-1322.4, 10.1-1333, 15.2-2403.3, as it may become effective, 15.2-5101, 28.2-1205.1, 46.2-1601, 62.1-44.3, as it is currently effective and as it may become effective, 62.1-44.14, 62.1-44.15:81, 62.1-44.15:83, 62.1-104, 62.1-242, and 62.1-255 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 1 of Chapter 3.1 of Title 62.1 a section numbered 62.1-44.6:1, and by adding sections numbered 62.1-248.2 and 62.1-263.1 as follows:
§ 3.2-401. Exclusions from chapter.
This chapter shall not apply to any agricultural activity to
which: (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title
10.1; or (ii) a water-related permit issued by the State Water
Control Board, Department of Environmental Quality applies.
§ 10.1-1186.3. Additional powers of Boards and the Department; 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, or the Director, in his 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 by the Board or the issuance of a permit by the Department in which it is apparent that there are significant issues of disagreement among interested persons and for which the Board or the Department finds that the use of a mediation or dispute resolution proceeding is in the public interest. The Boards or the Department 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 Department;
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 or the Department 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 Department or 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 or the Department. 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 or the Department'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 or the Department, but may
be considered by a Board the Department in issuing a permit or
by a Board in promulgating a regulation.
D. Each Board and the Department 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 Department 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 the Department or a Board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation, respectively.
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.
§ 10.1-1306. Inspections, investigations, etc.
The Board Department 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. Further powers and duties of Board and Department.
A. The Board shall have the power to control and regulate its
internal affairs;. The Department shall have the power to
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 § 10.1-1307.05 and 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, it the Department may in its discretion
grant local variances therefrom, if it finds after an investigation and hearing
that local conditions warrant; except that no local variances shall be
granted from regulations adopted by the Board pursuant to § 10.1-1308 related
to the requirements of subsection E of §10.1-1308 or Article 4 (§ 10.1-1329 et
seq.). If local variances are permitted, the Board Department
shall issue an order to this effect. Such order shall be subject to revocation
or amendment at any time if the Board Department, 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, it the Department 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 the Board's 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
Department 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, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has resolved that the location and operation of the proposed facility or activity is suitable 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 Department shall 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 not:
1. Adopt any regulation limiting emissions from wood heaters; or
2. Enforce against a manufacturer, distributor, or consumer any federal regulation limiting emissions from wood heaters adopted after May 1, 2014.
H. The Board Department 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.
I. In granting a permit pursuant to this section, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit, pursuant to this section, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 10.1-1307.01. Further duties of Board and Department; localities particularly affected.
A. Before The Board, before promulgating a
regulation under consideration, or the Department, before granting a
variance to an existing regulation, or issuing a permit for the construction of
a new major source or for a major modification to an existing source, if the
Board finds it is found that there is a locality particularly
affected by the regulation, variance, or permit, the Board shall,
respectively:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in each locality 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 provide information regarding specific pollutants and the total quantity of each that 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 of and the planning district commission for such locality.
Written comments shall be accepted by the Board for at least
15 days after any hearing on the regulation, variance, or permit, unless
the Board votes to shorten the period. Written comments shall be accepted by
the Department for at least 15 days after any hearing on the variance or
permit.
B. Before If the Department finds, before
granting any variance to an existing regulation or issuing any permit for (i) a
new fossil fuel-fired generating facility with a capacity of 500 megawatts or
more, (ii) a major modification to an existing source that is a fossil
fuel-fired generating facility with a capacity of 500 megawatts or more, (iii)
a new fossil fuel-fired compressor station facility used to transport natural
gas, or (iv) a major modification to an existing source that is a fossil
fuel-fired compressor station facility used to transport natural gas, if the
Board finds that there is a locality particularly affected by such variance
or permit, the Board Department shall:
1. Require the applicant to publish a notice in at least one
local paper of general circulation in any locality particularly affected at
least 60 days prior to the close of any public comment period. Such notice
shall (i) contain a statement of the estimated local impact of the proposed
action; (ii) provide information regarding specific pollutants and the total
quantity of each that may be emitted; (iii) list the type, quantity, and source
of any fuel to be used; (iv) advise the public how to request Board
consideration or as to the date and location of a public hearing;
and (v) advise the public where to obtain information regarding the proposed
action. The Department shall post such notice on the Department website and on
a Department social media account.
2. Require the applicant to mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.
Written comments shall be accepted by the Board
Department for at least 30 days after any hearing on such variance or
permit, unless the Board votes Director elects to shorten the
period.
C. For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.
§ 10.1-1307.02. Permit for generation of electricity during ISO-declared emergency.
A. As used in this section:
"Emergency generation source" means a stationary internal combustion engine that operates according to the procedures in the ISO's emergency operations manual during an ISO-declared emergency.
"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the Board pursuant to subsection B.
"Retail customer" has the same meaning ascribed thereto in § 56-576.
B. The Board shall adopt a general permit or permits
regulation for the use of back-up generation to authorize the construction,
installation, reconstruction, modification, and operation of emergency
generation sources during ISO-declared emergencies. Such general permit or
permits regulation shall include a definition of
"emergency" that is compatible with the ISO's emergency operations
manual. After adoption of such general permit or permits regulation,
any amendments to the Board's regulations necessary to carry out the provisions
of this section shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the
Administrative Process Act.
§ 10.1-1307.04. Greenhouse gas emissions inventory.
A. The Department shall conduct a comprehensive statewide baseline and projection inventory of all greenhouse gas (GHG) emissions and shall update such inventory every four years. The Board may adopt regulations necessary to collect from all source sectors data needed by the Department to conduct, update, and maintain such inventory.
B. The Board Department shall include the
inventory in the report required pursuant to subsection H of § 10.1-1307,
beginning with the report issued prior to October 1, 2022, and every four years
thereafter. The Department shall publish such inventory on its website, showing
changes in GHG emissions relative to an estimated GHG emissions baseline case
for calendar year 2010.
C. Any information, except emissions data, that is reported to or otherwise obtained by the Department pursuant to this section and that contains or might reveal proprietary information shall be confidential and shall be exempt from the mandatory disclosure requirements of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Each owner shall notify the Director or his representative of the existence of proprietary information if he desires the protection provided pursuant to this subsection.
§ 10.1-1308.1. Streamlined permitting process for qualified energy generators.
A. As used in this section:
"Biomass" means organic material that is available on a renewable or recurring basis, including:
1. Forest-related materials, including mill residues, logging residues, forest thinnings, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;
2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;
3. Animal waste, including manure and slaughterhouse and other processing waste;
4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes and wood contaminated with plastic;
5. Crops and trees planted for the purpose of being used to produce energy;
6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and
7. Municipal solid waste, excluding tires and medical and hazardous waste.
"Expedited process" means a process that (i)
requires the applicant to pay fees to the Commonwealth in connection with the
issuance and processing of the permit application that do not exceed $50 and
(ii) has a duration, from receipt of a complete permit application until final
action by the Board or Department on the application, not longer than 60
days.
"Qualified energy generator" means a commercial facility located in the Commonwealth with the capacity annually to generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product, that is generated or produced from biomass, and that is sold to an unrelated person or used in a manufacturing process.
B. The Board Department shall develop an
expedited process for issuing any permit that the Board it is required
to issue for the construction or operation of a qualified energy generator. The
development of the expedited permitting process shall be in accordance with
subdivision A 8 of § 2.2-4006; however, if the construction or operation of a
qualified energy generator is subject to a major new source review program
required by § 110(a)(2)(C) of the federal Clean Air Act, this section shall not
apply.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board Department 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 Board Department,
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 Department 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 Department 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 Board Department
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 Board
Department 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, it 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
Board Department finds that an owner who has been issued a special
order or an emergency special order is not complying with the terms thereof, it
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 Board Department, 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's Department'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 Board Department 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 Board Department 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 Board Department may deem appropriate.
The Board Department may require that such plan and instruments
be updated as appropriate. The Board Department 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 Department pursuant to hearing.
Any decision by the Board Department 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's Department'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 Department, 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 by the Board
Department, the Board Department 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.
§ 10.1-1312. Air pollution control districts.
A. The Board Department may create, within any
area of the Commonwealth, local air pollution control districts comprising a
city or county or a part or parts of each, or two or more cities or counties,
or any combination or parts thereof. Such local districts may be established by
the Board Department on its own motion or upon request of the
governing body or bodies of the area involved.
B. In each district there shall be a local air pollution
control committee, the members of which shall be appointed by the Board
Department from lists of recommended nominees submitted by the respective
governing bodies of each locality, all or a portion of which are included in
the district. The number of members on each committee shall be in the
discretion of the Board Department. When a district includes two
or more localities or portions thereof, the Board Department
shall apportion the membership of the committee among the localities, provided
that each locality shall have at least one representative on the committee. The
members shall not be compensated out of state funds, but may be reimbursed for
expenses out of state funds. Localities may provide for the payment of
compensation and reimbursement of expenses to the members and may appropriate
funds therefore. The portion of such payment to be borne by each locality shall
be prescribed by agreement.
C. The local committee is empowered to observe compliance with
the regulations of the Board and report instances of noncompliance to the
Board Department, to conduct educational programs relating to air
pollution and its effects, to assist the Department in its air monitoring
programs, to initiate and make studies relating to air pollution and its
effects, and to make recommendations to the Board Department.
D. The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies.
§ 10.1-1313. State Advisory Board on Air Pollution.
The Board Department is authorized to name
qualified persons to a State Advisory Board on Air Pollution.
§ 10.1-1314. Owners to furnish plans, specifications and information.
Every owner which the Board Department has
reason to believe is causing, or may be about to cause, an air pollution
problem shall on request of the Board Department furnish such
plans, specifications and information as may be required by the Board
Department 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.
§ 10.1-1315. Right of entry.
Whenever it is necessary for the purposes of this chapter, the
Board Department or any member, agent or employee thereof,
when duly authorized by the Board Director, 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 Department order, 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 Department order, 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 Department order,
or any provision of this chapter, or any permit condition, the Board
Department may provide, in any order issued by the Board
Department 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 Board Department 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 Department.
A. Any owner aggrieved by a final decision of the Board
Department 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 Board Department under § 10.1-1322 and who has exhausted
all available administrative remedies for review of the Board's
Department's decision, shall be entitled to judicial review of the
Board's Department'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
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.
§ 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 regulation, or Department order, 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 (i) this chapter or, (ii) any regulation of
the Board, or (iii) order of the Board Department, 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 and subject
to § 10.1-1322.01, permits may be issued, amended, revoked or terminated
and reissued by the Department 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 of the Board and orders of the Board
Department under the provisions of this chapter. To the extent allowed by
federal law, any person holding a permit who is intending to upgrade the
permitted facility by installing technology, control equipment, or other
apparatus that the permittee demonstrates to the satisfaction of the Director
will result in improved energy efficiency, will reduce the emissions of
regulated air pollutants, and meets the requirements of Best Available Control
Technology shall not be required to obtain a new, modified, or amended permit.
The permit holder shall provide the demonstration anticipated by this
subsection to the Department no later than 30 days prior to commencing
construction.
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 operating permit program
established pursuant to Title V of the federal Clean Air Act or (ii) the
Governor determines that such fees are needed earlier to maintain primacy over
the program. The annual fees shall be based on the actual emissions (as
calculated or estimated) of each regulated pollutant, as defined in § 502 of
the federal Clean Air Act, in tons per year, not to exceed 4,000 tons per year
of each pollutant for each source. The annual permit program fees shall not
exceed a base year amount of $25 per ton using 1990 as the base year, and shall
be adjusted annually by the Consumer Price Index as described in § 502 of the
federal Clean Air Act. Permit program fees for air pollution sources who
receive state operating permits in lieu of Title V operating permits shall be
paid in the first year and thereafter shall be paid biennially. The fees shall
approximate the direct and indirect costs of administering and enforcing the
permit program, and of administering the small business stationary source
technical and environmental compliance assistance program as required by the
federal Clean Air Act. The Board shall also collect promulgate
regulations establishing 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 and Appropriations, 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 Board Department, 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 federal law or regulation, 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 his
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. To the extent allowed by federal law or regulation, no demonstration
shall be required for the use of processed animal fat, processed fish oil,
processed vegetable oil, distillate oil, or any mixture thereof in place of the
same quantity of residual oil to fire industrial boilers.
§ 10.1-1333. Permitting process for clean coal projects.
To the extent authorized by federal law, the Board
Department 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.
§ 15.2-2403.3. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Stormwater service districts; allocation of revenues.
Any town located within a stormwater service district created
pursuant to this chapter shall be entitled to any revenues collected within the
town pursuant to subdivision 6 of § 15.2-2403, subject to the limitations set
forth therein, so long as the town maintains its own municipal separate storm
sewer system (MS4) permit issued by the State Water Control Board
Department of Environmental Quality or maintains its own stormwater service
district.
§ 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 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.
"Green roof" means a roof or partially covered roof consisting of plants, soil, or another lightweight growing medium that is installed on top of a waterproof membrane and designed in accordance with the Virginia Stormwater Management Program's standards and specifications for green roofs, as set forth in the Virginia BMP Clearinghouse.
"Improvements" means such repairs, replacements, additions, extensions and betterments of and to a 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 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 Board Department 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. § 2011, 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.
"System" means any sewage disposal system, sewer system, stormwater control system, water or waste system, and for authorities created under Article 6 (§ 15.2-5152 et seq.) of this chapter, such facilities as may be provided by the authority under § 15.2-5158.
"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.
§ 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 § 62.1-44.15:20 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 Wildlife Resources, 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 Board
Department 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 Board
Department 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 Board Department
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.
§ 46.2-1601. Licensing of dealers of salvage vehicles; fees.
A. It shall be unlawful for any person to engage in business in the Commonwealth as an auto recycler, salvage pool, or vehicle removal operator without first acquiring a license issued by the Commissioner for each such business at each location. The fee for the first such license issued or renewed under this chapter shall be $100 per license year or part thereof. The fee for each additional license issued or renewed under this chapter for the same location shall be $25 per license year or part thereof. However, no fee shall be charged for supplemental locations of a business located within 500 yards of the licensed location.
B. No license shall be issued or renewed for any person unless
(i) the licensed business contains at least 600 square feet of enclosed space,
(ii) the licensed business is shown to be in compliance with all applicable
zoning ordinances, and (iii) the applicant may (a) certify to the Commissioner
that the licensed business is permitted under a Virginia Pollutant Discharge
Elimination System individual or general permit issued by the State Water
Control Board Department of Environmental Quality for discharges of
storm water associated with industrial activity and provides the permit number(s)
from such permit(s) or (b) certify to the Commissioner that the licensed
business is otherwise exempt from such permitting requirements. Nothing in this
section shall authorize any person to act as a motor vehicle dealer or
salesperson without being licensed under Chapter 15 (§ 46.2-1500 et seq.) and
meeting all requirements imposed by such chapter.
C. Licenses issued under this section shall be deemed not to have expired if the renewal application and required fees as set forth in subsection A are received by the Commissioner or postmarked not more than 30 days after the expiration date of such license. Whenever the renewal application is received by the Commissioner or postmarked not more than 30 days after the expiration date of such license, the license fees shall be 150 percent of the fees provided for in subsection A.
D. The Commissioner may offer an optional multiyear license for any license set forth in this section. When such option is offered and chosen by the licensee, all fees due at the time of licensing shall be multiplied by the number of years for which the license will be issued.
§ 62.1-44.3. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate issued by the
Board Department.
"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 § 3.2-300 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.
§ 62.1-44.3. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate or permit issued
by the Board Department.
"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.
"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of § 62.1-44.15:55 have been met.
"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.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:
1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under § 208 of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 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 subdivision (10) of § 62.1-44.15.
"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 subdivision (7) of § 62.1-44.15.
"Ruling" means a ruling issued under subdivision (9) of § 62.1-44.15.
"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.
§ 62.1-44.6:1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 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, 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 Executive Director to 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. The Executive Director shall prepare, approve, and submit all
requests for appropriations and be responsible for all expenditures pursuant to
appropriations. The Executive Director shall be vested with all the authority
of the Board when it is not in session, except for the Board's authority to
consider permits pursuant to § 62.1-44.15:02 and to issue special orders
pursuant to subdivisions (8a) and (8b) of § 62.1-44.15 and subject to such
regulations as may be prescribed by the Board. In no event shall the Executive
Director have the authority to adopt or promulgate any regulation.
§ 62.1-44.15:81. Application and preparation of draft certification conditions.
A. Any applicant for a federal license or permit for a natural gas transmission pipeline greater than 36 inches inside diameter subject to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) shall submit a separate application, at the same time the Joint Permit Application is submitted, to the Department containing a description of all activities that will occur in upland areas, including activities in or related to (i) slopes with a grade greater than 15 percent; (ii) karst geology features, including sinkholes and underground springs; (iii) proximity to sensitive streams and wetlands identified by the Department of Conservation and Recreation or the Department of Wildlife Resources; (iv) seasonally high water tables; (v) water impoundment structures and reservoirs; and (vi) areas with highly erodible soils, low pH, and acid sulfate soils. Concurrently with the Joint Permit Application, the applicant shall also submit a detailed erosion and sediment control plan and stormwater management plan subject to Department review and approval.
B. After receipt of an application in accordance with subsection A, the Department shall issue a request for information about how the erosion and sediment control plan and stormwater management plan will address activities in or related to the upland areas identified in subsection A. The response to such request shall include the specific strategies and best management practices that will be utilized by the applicant to address challenges associated with each area type and an explanation of how such strategies and best management practices will ensure compliance with water quality standards.
C. At any time during the review of the application, but prior to issuing a certification pursuant to this article, the Department may issue an information request to the applicant for any relevant additional information necessary to determine (i) if any activities related to the applicant's project in upland areas are likely to result in a discharge to state waters and (ii) how the applicant proposes to minimize water quality impacts to the maximum extent practicable to protect water quality. The information request shall provide a reasonable amount of time for the applicant to respond.
D. The Department shall review the information contained in
the application, the response to the information request in subsection B, and
any additional information obtained through any information requests issued
pursuant to subsection C to determine if any activities described in the
application or in any additional information requests (i) are likely to result
in a discharge to state waters with the potential to adversely impact water
quality and (ii) will not be addressed by the Virginia Water Protection Permit
issued for the activity pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.). The
Department of Wildlife Resources, the Department of Conservation and
Recreation, the Department of Health, and the Department of Agriculture and
Consumer Services shall consult with the Department during the review of the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C. Following the conclusion of its
review, the Department shall develop a draft certification or denial. A draft
certification, including (i) any additional conditions for activities in upland
areas necessary to protect water quality and (ii) a condition that the
applicant shall not commence land-disturbing activity prior to approval by the
Department of the erosion and sediment control plan and stormwater management
plan required pursuant to subsection E, shall be noticed for public comment and
potential issuance by the Department or the Board pursuant to §
62.1-44.15:02. The Department shall make the information contained in the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C available to the public.
E. Notwithstanding any applicable annual standards and specifications for erosion and sediment control or stormwater management pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.), the applicant shall not commence land-disturbing activity prior to resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and approval by the Department of an erosion and sediment control plan and stormwater management plan in accordance with applicable regulations. The Department shall act on any plan submittal within 60 days after initial submittal of a completed plan to the Department. The Department may issue either approval or disapproval and shall provide written rationale for its decision. The Department shall act on any plan that has been previously disapproved within 30 days after the plan has been revised and resubmitted for approval.
F. No action by either the Department or the Board on a certification pursuant to this article shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval.
G. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
H. Neither the Department nor the Board shall expressly waive certification of a natural gas transmission pipeline of greater than 36 inches inside diameter under § 401 of the federal Clean Water Act (33 U.S.C. § 1341). The Department or the Board shall act on any certification request within a reasonable period of time pursuant to federal law. Nothing in this section shall be construed to prohibit the Department or the Board from taking action to deny a certification in accordance with the provisions of § 401 of the federal Clean Water Act (33 U.S.C. § 1341).
§ 62.1-44.15:83. Requests for public hearing, hearings, and final decisions procedures.
A. The issuance of a certification pursuant to this article
shall be a permit action for purposes of § 62.1-44.15:02.
B. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
§ 62.1-104. Definitions.
(1) Except as modified below, the definitions contained in Title 1 shall apply in this chapter.
(2) "Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
(3) "Impounding structure" means a man-made device, whether a dam across a watercourse or other structure outside a watercourse, used or to be used for the authorized storage of flood waters for subsequent beneficial use.
(4) "Watercourse" means a natural channel having a well-defined bed and banks and in which water flows when it normally does flow. For the purposes hereof they shall be limited to rivers, creeks, streams, branches, and other watercourses which are nonnavigable in fact and which are wholly within the jurisdiction of the Commonwealth.
(5) "Riparian land" is land which is contiguous to and touches a watercourse. It does not include land outside the watershed of the watercourse. Real property under common ownership and which is not separated from riparian land by land of any other ownership shall likewise be deemed riparian land, notwithstanding that such real property is divided into tracts and parcels which may not bound upon the watercourse.
(6) "Riparian owner" is an owner of riparian land.
(7) "Average flow" means the average discharge of a stream at a particular point and normally is expressed in cubic feet per second. It may be determined from actual measurements or computed from the most accurate information available.
(8) "Diffused surface waters" are those which, resulting from precipitation, flow down across the surface of the land until they reach a watercourse, after which they become parts of streams.
(9) "Floodwaters" means water in a stream which is over and above the average flow.
(10) "Court" means the circuit court of the county or city in which an impoundment is located or proposed to be located.
§ 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means 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 Board 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.
§ 62.1-248.2. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise:
"Agricultural irrigation" means irrigation that is used to support any operation devoted to the bona fide production of crops, animals, or fowl, including the production of fruits and vegetables of any kind; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silvicultural activity.
"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.
"Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Department" means the Department of Environmental Quality.
"Eastern Shore Groundwater Management Area" means the ground water management area declared by the Board encompassing the Counties of Accomack and Northampton.
"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 the 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 Board permitting the withdrawal of a specified quantity of ground water in a ground water management area.
"Irrigation" means the controlled application of water through man-made systems to supply water requirements not satisfied by rainfall to assist in the growing or maintenance of vegetative growth.
"Nonagricultural irrigation" means all irrigation other than agricultural irrigation.
"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 the Commonwealth or any other state or country.
"Surficial aquifer" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.
§ 62.1-263.1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
2. That §§ 10.1-1322.01 and 62.1-44.15:02 of the Code of Virginia are repealed.
3. That any permits or orders issued by the Air Pollution Control Board or the State Water Control Board prior to the effective date of this act shall continue in full force and are enforceable by the Department of Environmental Quality.
4. That nothing in this act shall be construed to limit or impact § 3.2-301 or 15.2-2288.6 of the Code of Virginia.
5. That at each regular meeting of the Air Pollution Control Board and the State Water Control Board (the Boards), the Department of Environmental Quality (the Department) shall provide an overview and update regarding any controversial permits pending before the Department that are relevant to each board. Immediately after such presentation by the Department, the Boards shall have an opportunity to respond to the Department's presentation and provide commentary regarding such pending permits. Before rendering a final decision on a controversial permit, the Department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the Department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the Department's public comment summary and response. No new information will be accepted at that time.
For purposes of this enactment, "controversial permit" means an air or water permitting action for which a public hearing has been granted pursuant the provisions of the sixth enactment of this act. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.
6. That any changes to regulations necessary to implement the provisions of this act shall include the following criteria for requesting and granting a public hearing on a permit action during a public comment period in those instances where a public hearing is not mandatory under state or federal law or regulation. During the public comment period on permit action, interested persons may request a public hearing to contest such action or the terms and conditions thereof. Requests for a public hearing shall contain the following information: (i) the name and postal mailing or email address of the requester; (ii) the names and addresses of all persons for whom the requester is acting as a representative (for the purposes of this requirement, "person" includes an unincorporated association); (iii) the reason for the request for a public hearing; (iv) a brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and (v) where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Air Pollution Control Board or the State Water Control Board, as applicable. Upon completion of the public comment period on a permit action, the Director of the Department of Environmental Quality shall review all timely requests for public hearing filed during the public comment period on the permit action and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the Director finds the following: (a) that there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing; (b) that the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and (c) that the action requested by the interested party is not on its face inconsistent with, or in violation of, the basic laws of the State Air Pollution Control Board if the permit action is an air permit action, or the basic laws of the State Water Control Board if the permit action is a water permit action, federal law, or any regulation promulgated thereunder. The Director of the Department of Environmental Quality shall, forthwith, notify by email or mail at his last known address (1) each requester and (2) the applicant or permittee of the decision to grant or deny a public hearing. If the request for a public hearing is granted, the Director shall schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing. The Director shall cause, or require the applicant to publish, notice of a public hearing to be published once, in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date. In making its decision, the Department shall consider (A) the verbal and written comments received during the public comment period and public hearing made part of the record, (B) any commentary of the Board, and (C) the agency files. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 10.1-1307.01 of the Code of Virginia, as amended by this act, or § 62.1-44.15:01 of the Code of Virginia. In addition, the Director may, in his discretion, convene a public hearing on a permit action.
Be it enacted by the General Assembly of Virginia:
1. That §§ 3.2-401, 10.1-1186.3, 10.1-1306 through 10.1-1307.02, 10.1-1307.04, 10.1-1308.1 through 10.1-1314, 10.1-1315, 10.1-1316, 10.1-1318, 10.1-1320, 10.1-1320.1, 10.1-1322, 10.1-1322.4, 10.1-1333, 15.2-2403.3, as it may become effective, 15.2-5101, 28.2-1205.1, 46.2-1601, 62.1-44.3, as it is currently effective and as it may become effective, 62.1-44.14, 62.1-44.15:81, 62.1-44.15:83, 62.1-104, 62.1-242, and 62.1-255 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 1 of Chapter 3.1 of Title 62.1 a section numbered 62.1-44-6.1, and by adding sections numbered 62.1-248.2 and 62.1-263.1 as follows:
§ 3.2-401. Exclusions from chapter.
This chapter shall not apply to any agricultural activity to
which: (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title
10.1; or (ii) a water-related permit issued by the State Water
Control Board, Department of Environmental Quality applies.
§ 10.1-1186.3. Additional powers of Boards and the Department; 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, or the Director, in his 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 by the Board or the issuance of a permit by the Department in which it is apparent that there are significant issues of disagreement among interested persons and for which the Board or the Department finds that the use of a mediation or dispute resolution proceeding is in the public interest. The Boards or the Department 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 Department;
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 or the Department 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 Department or 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 or the Department. 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 or the Department'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 or the Department, but may
be considered by a Board the Department in issuing a permit or
by a Board in promulgating a regulation.
D. Each Board and the Department 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 Department 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 the Department or a Board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation, respectively.
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.
§ 10.1-1306. Inspections, investigations, etc.
The Board Department 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. Further powers and duties of Board and Department.
A. The Board shall have the power to control and regulate its
internal affairs;. The Department shall have the power to
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 § 10.1-1307.05 and 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, it the Department may in its discretion
grant local variances therefrom, if it finds after an investigation and hearing
that local conditions warrant. If local variances are permitted, the Board
Department shall issue an order to this effect. Such order shall be subject
to revocation or amendment at any time if the Board Department,
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, it the Department 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 the Board's 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
Department 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, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has resolved that the location and operation of the proposed facility or activity is suitable 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 Department shall 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 not:
1. Adopt any regulation limiting emissions from wood heaters; or
2. Enforce against a manufacturer, distributor, or consumer any federal regulation limiting emissions from wood heaters adopted after May 1, 2014.
H. The Board Department 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.
I. In granting a permit pursuant to this section, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit, pursuant to this section, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 10.1-1307.01. Further duties of Board and Department; localities particularly affected.
A. Before The Board, before promulgating a
regulation under consideration, or the Department, before granting a
variance to an existing regulation, or issuing a permit for the construction of
a new major source or for a major modification to an existing source, if the
Board finds it is found that there is a locality particularly
affected by the regulation, variance, or permit, the Board shall,
respectively:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in each locality 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 provide information regarding specific pollutants and the total quantity of each that 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 of and the planning district commission for such locality.
Written comments shall be accepted by the Board for at least
15 days after any hearing on the regulation, variance, or permit, unless
the Board votes to shorten the period. Written comments shall be accepted by
the Department for at least 15 days after any hearing on the variance or
permit.
B. Before If the Department finds, before
granting any variance to an existing regulation or issuing any permit for (i) a
new fossil fuel-fired generating facility with a capacity of 500 megawatts or
more, (ii) a major modification to an existing source that is a fossil
fuel-fired generating facility with a capacity of 500 megawatts or more, (iii)
a new fossil fuel-fired compressor station facility used to transport natural
gas, or (iv) a major modification to an existing source that is a fossil
fuel-fired compressor station facility used to transport natural gas, if the
Board finds that there is a locality particularly affected by such variance
or permit, the Board Department shall:
1. Require the applicant to publish a notice in at least one
local paper of general circulation in any locality particularly affected at
least 60 days prior to the close of any public comment period. Such notice
shall (i) contain a statement of the estimated local impact of the proposed
action; (ii) provide information regarding specific pollutants and the total
quantity of each that may be emitted; (iii) list the type, quantity, and source
of any fuel to be used; (iv) advise the public how to request Board
consideration or as to the date and location of a public hearing;
and (v) advise the public where to obtain information regarding the proposed
action. The Department shall post such notice on the Department website and on
a Department social media account.
2. Require the applicant to mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.
Written comments shall be accepted by the Board
Department for at least 30 days after any hearing on such variance or
permit, unless the Board votes Director elects to shorten the
period.
C. For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.
§ 10.1-1307.02. Permit for generation of electricity during ISO-declared emergency.
A. As used in this section:
"Emergency generation source" means a stationary internal combustion engine that operates according to the procedures in the ISO's emergency operations manual during an ISO-declared emergency.
"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the Board pursuant to subsection B.
"Retail customer" has the same meaning ascribed thereto in § 56-576.
B. The Board shall adopt a general permit or permits
regulation for the use of back-up generation to authorize the construction,
installation, reconstruction, modification, and operation of emergency
generation sources during ISO-declared emergencies. Such general permit or
permits regulation shall include a definition of
"emergency" that is compatible with the ISO's emergency operations
manual. After adoption of such general permit or permits regulation,
any amendments to the Board's regulations necessary to carry out the provisions
of this section shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the
Administrative Process Act.
§ 10.1-1307.04. Greenhouse gas emissions inventory.
A. The Department shall conduct a comprehensive statewide baseline and projection inventory of all greenhouse gas (GHG) emissions and shall update such inventory every four years. The Board may adopt regulations necessary to collect from all source sectors data needed by the Department to conduct, update, and maintain such inventory.
B. The Board Department shall include the
inventory in the report required pursuant to subsection H of § 10.1-1307,
beginning with the report issued prior to October 1, 2022, and every four years
thereafter. The Department shall publish such inventory on its website, showing
changes in GHG emissions relative to an estimated GHG emissions baseline case
for calendar year 2010.
C. Any information, except emissions data, that is reported to or otherwise obtained by the Department pursuant to this section and that contains or might reveal proprietary information shall be confidential and shall be exempt from the mandatory disclosure requirements of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Each owner shall notify the Director or his representative of the existence of proprietary information if he desires the protection provided pursuant to this subsection.
§ 10.1-1308.1. Streamlined permitting process for qualified energy generators.
A. As used in this section:
"Biomass" means organic material that is available on a renewable or recurring basis, including:
1. Forest-related materials, including mill residues, logging residues, forest thinnings, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;
2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;
3. Animal waste, including manure and slaughterhouse and other processing waste;
4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes and wood contaminated with plastic;
5. Crops and trees planted for the purpose of being used to produce energy;
6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and
7. Municipal solid waste, excluding tires and medical and hazardous waste.
"Expedited process" means a process that (i)
requires the applicant to pay fees to the Commonwealth in connection with the
issuance and processing of the permit application that do not exceed $50 and
(ii) has a duration, from receipt of a complete permit application until final
action by the Board or Department on the application, not longer than 60
days.
"Qualified energy generator" means a commercial facility located in the Commonwealth with the capacity annually to generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product, that is generated or produced from biomass, and that is sold to an unrelated person or used in a manufacturing process.
B. The Board Department shall develop an
expedited process for issuing any permit that the Board it is
required to issue for the construction or operation of a qualified energy
generator. The development of the expedited permitting process shall be in
accordance with subdivision A 8 of § 2.2-4006; however, if the construction or
operation of a qualified energy generator is subject to a major new source
review program required by § 110(a)(2)(C) of the federal Clean Air Act, this
section shall not apply.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board Department 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 Board Department,
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 Department 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 Department 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
Board Department 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 Board
Department 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, it 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
Board Department finds that an owner who has been issued a special
order or an emergency special order is not complying with the terms thereof, it
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 Board Department, 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's Department'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 Board Department 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 Board Department 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 Board Department may deem appropriate.
The Board Department may require that such plan and instruments
be updated as appropriate. The Board Department 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 Department pursuant to hearing.
Any decision by the Board Department 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's Department'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 Department, 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 by the Board
Department, the Board Department 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.
§ 10.1-1312. Air pollution control districts.
A. The Board Department may create, within any
area of the Commonwealth, local air pollution control districts comprising a
city or county or a part or parts of each, or two or more cities or counties,
or any combination or parts thereof. Such local districts may be established by
the Board Department on its own motion or upon request of the
governing body or bodies of the area involved.
B. In each district there shall be a local air pollution
control committee, the members of which shall be appointed by the Board
Department from lists of recommended nominees submitted by the respective
governing bodies of each locality, all or a portion of which are included in
the district. The number of members on each committee shall be in the
discretion of the Board Department. When a district includes two
or more localities or portions thereof, the Board Department
shall apportion the membership of the committee among the localities, provided
that each locality shall have at least one representative on the committee. The
members shall not be compensated out of state funds, but may be reimbursed for
expenses out of state funds. Localities may provide for the payment of
compensation and reimbursement of expenses to the members and may appropriate
funds therefore. The portion of such payment to be borne by each locality shall
be prescribed by agreement.
C. The local committee is empowered to observe compliance with
the regulations of the Board and report instances of noncompliance to the
Board Department, to conduct educational programs relating to air
pollution and its effects, to assist the Department in its air monitoring
programs, to initiate and make studies relating to air pollution and its
effects, and to make recommendations to the Board Department.
D. The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies.
§ 10.1-1313. State Advisory Board on Air Pollution.
The Board Department is authorized to name
qualified persons to a State Advisory Board on Air Pollution.
§ 10.1-1314. Owners to furnish plans, specifications and information.
Every owner which the Board Department has reason
to believe is causing, or may be about to cause, an air pollution problem shall
on request of the Board Department furnish such plans,
specifications and information as may be required by the Board
Department 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.
§ 10.1-1315. Right of entry.
Whenever it is necessary for the purposes of this chapter, the
Board Department or any member, agent or employee thereof,
when duly authorized by the Board Director, 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 Department order, 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 Department order, 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 Department order,
or any provision of this chapter, or any permit condition, the Board
Department may provide, in any order issued by the Board
Department 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 Board Department 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 Department.
A. Any owner aggrieved by a final decision of the Board
Department 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 Board Department under § 10.1-1322 and who has exhausted
all available administrative remedies for review of the Board's
Department's decision, shall be entitled to judicial review of the
Board's Department'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
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.
§ 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 regulation, or Department order, 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 (i) this chapter or, (ii) any regulation of
the Board, or (iii) order of the Board Department, 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 and subject
to § 10.1-1322.01, permits may be issued, amended, revoked or terminated
and reissued by the Department 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 of the Board and orders of the Board
Department under the provisions of this chapter. To the extent allowed by
federal law, any person holding a permit who is intending to upgrade the
permitted facility by installing technology, control equipment, or other
apparatus that the permittee demonstrates to the satisfaction of the Director
will result in improved energy efficiency, will reduce the emissions of
regulated air pollutants, and meets the requirements of Best Available Control
Technology shall not be required to obtain a new, modified, or amended permit.
The permit holder shall provide the demonstration anticipated by this subsection
to the Department no later than 30 days prior to commencing construction.
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 operating permit program
established pursuant to Title V of the federal Clean Air Act or (ii) the
Governor determines that such fees are needed earlier to maintain primacy over
the program. The annual fees shall be based on the actual emissions (as
calculated or estimated) of each regulated pollutant, as defined in § 502 of
the federal Clean Air Act, in tons per year, not to exceed 4,000 tons per year
of each pollutant for each source. The annual permit program fees shall not
exceed a base year amount of $25 per ton using 1990 as the base year, and shall
be adjusted annually by the Consumer Price Index as described in § 502 of the
federal Clean Air Act. Permit program fees for air pollution sources who
receive state operating permits in lieu of Title V operating permits shall be
paid in the first year and thereafter shall be paid biennially. The fees shall
approximate the direct and indirect costs of administering and enforcing the
permit program, and of administering the small business stationary source
technical and environmental compliance assistance program as required by the
federal Clean Air Act. The Board shall also collect promulgate
regulations establishing 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 and Appropriations, 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 Board Department, 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 federal law or regulation, 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 his
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. To the extent allowed by federal law or regulation, no demonstration
shall be required for the use of processed animal fat, processed fish oil,
processed vegetable oil, distillate oil, or any mixture thereof in place of the
same quantity of residual oil to fire industrial boilers.
§ 10.1-1333. Permitting process for clean coal projects.
To the extent authorized by federal law, the Board
Department 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.
§ 15.2-2403.3. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Stormwater service districts; allocation of revenues.
Any town located within a stormwater service district created
pursuant to this chapter shall be entitled to any revenues collected within the
town pursuant to subdivision 6 of § 15.2-2403, subject to the limitations set
forth therein, so long as the town maintains its own municipal separate storm
sewer system (MS4) permit issued by the State Water Control Board
Department of Environmental Quality or maintains its own stormwater service
district.
§ 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 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.
"Green roof" means a roof or partially covered roof consisting of plants, soil, or another lightweight growing medium that is installed on top of a waterproof membrane and designed in accordance with the Virginia Stormwater Management Program's standards and specifications for green roofs, as set forth in the Virginia BMP Clearinghouse.
"Improvements" means such repairs, replacements, additions, extensions and betterments of and to a 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 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 Board Department 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. § 2011, 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.
"System" means any sewage disposal system, sewer system, stormwater control system, water or waste system, and for authorities created under Article 6 (§ 15.2-5152 et seq.) of this chapter, such facilities as may be provided by the authority under § 15.2-5158.
"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.
§ 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 § 62.1-44.15:20 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 Wildlife Resources, 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 Board
Department 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 Board
Department 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 Board Department
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.
§ 46.2-1601. Licensing of dealers of salvage vehicles; fees.
A. It shall be unlawful for any person to engage in business in the Commonwealth as an auto recycler, salvage pool, or vehicle removal operator without first acquiring a license issued by the Commissioner for each such business at each location. The fee for the first such license issued or renewed under this chapter shall be $100 per license year or part thereof. The fee for each additional license issued or renewed under this chapter for the same location shall be $25 per license year or part thereof. However, no fee shall be charged for supplemental locations of a business located within 500 yards of the licensed location.
B. No license shall be issued or renewed for any person unless
(i) the licensed business contains at least 600 square feet of enclosed space,
(ii) the licensed business is shown to be in compliance with all applicable
zoning ordinances, and (iii) the applicant may (a) certify to the Commissioner
that the licensed business is permitted under a Virginia Pollutant Discharge
Elimination System individual or general permit issued by the State Water
Control Board Department of Environmental Quality for discharges of
storm water associated with industrial activity and provides the permit
number(s) from such permit(s) or (b) certify to the Commissioner that the
licensed business is otherwise exempt from such permitting requirements.
Nothing in this section shall authorize any person to act as a motor vehicle
dealer or salesperson without being licensed under Chapter 15 (§ 46.2-1500 et
seq.) and meeting all requirements imposed by such chapter.
C. Licenses issued under this section shall be deemed not to have expired if the renewal application and required fees as set forth in subsection A are received by the Commissioner or postmarked not more than 30 days after the expiration date of such license. Whenever the renewal application is received by the Commissioner or postmarked not more than 30 days after the expiration date of such license, the license fees shall be 150 percent of the fees provided for in subsection A.
D. The Commissioner may offer an optional multiyear license for any license set forth in this section. When such option is offered and chosen by the licensee, all fees due at the time of licensing shall be multiplied by the number of years for which the license will be issued.
§ 62.1-44.3. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate issued by the
Board Department.
"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 § 3.2-300 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.
§ 62.1-44.3. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate or permit issued
by the Board Department.
"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.
"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of § 62.1-44.15:55 have been met.
"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.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:
1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under § 208 of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 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 subdivision (10) of § 62.1-44.15.
"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 subdivision (7) of § 62.1-44.15.
"Ruling" means a ruling issued under subdivision (9) of § 62.1-44.15.
"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.
§ 62.1-44.6:1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 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, 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 Executive Director to 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. The Executive Director shall prepare, approve, and submit all
requests for appropriations and be responsible for all expenditures pursuant to
appropriations. The Executive Director shall be vested with all the authority
of the Board when it is not in session, except for the Board's authority to
consider permits pursuant to § 62.1-44.15:02 and to issue special orders
pursuant to subdivisions (8a) and (8b) of § 62.1-44.15 and subject to such
regulations as may be prescribed by the Board. In no event shall the Executive
Director have the authority to adopt or promulgate any regulation.
§ 62.1-44.15:81. Application and preparation of draft certification conditions.
A. Any applicant for a federal license or permit for a natural gas transmission pipeline greater than 36 inches inside diameter subject to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) shall submit a separate application, at the same time the Joint Permit Application is submitted, to the Department containing a description of all activities that will occur in upland areas, including activities in or related to (i) slopes with a grade greater than 15 percent; (ii) karst geology features, including sinkholes and underground springs; (iii) proximity to sensitive streams and wetlands identified by the Department of Conservation and Recreation or the Department of Wildlife Resources; (iv) seasonally high water tables; (v) water impoundment structures and reservoirs; and (vi) areas with highly erodible soils, low pH, and acid sulfate soils. Concurrently with the Joint Permit Application, the applicant shall also submit a detailed erosion and sediment control plan and stormwater management plan subject to Department review and approval.
B. After receipt of an application in accordance with subsection A, the Department shall issue a request for information about how the erosion and sediment control plan and stormwater management plan will address activities in or related to the upland areas identified in subsection A. The response to such request shall include the specific strategies and best management practices that will be utilized by the applicant to address challenges associated with each area type and an explanation of how such strategies and best management practices will ensure compliance with water quality standards.
C. At any time during the review of the application, but prior to issuing a certification pursuant to this article, the Department may issue an information request to the applicant for any relevant additional information necessary to determine (i) if any activities related to the applicant's project in upland areas are likely to result in a discharge to state waters and (ii) how the applicant proposes to minimize water quality impacts to the maximum extent practicable to protect water quality. The information request shall provide a reasonable amount of time for the applicant to respond.
D. The Department shall review the information contained in
the application, the response to the information request in subsection B, and
any additional information obtained through any information requests issued
pursuant to subsection C to determine if any activities described in the
application or in any additional information requests (i) are likely to result
in a discharge to state waters with the potential to adversely impact water
quality and (ii) will not be addressed by the Virginia Water Protection Permit
issued for the activity pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.). The
Department of Wildlife Resources, the Department of Conservation and
Recreation, the Department of Health, and the Department of Agriculture and
Consumer Services shall consult with the Department during the review of the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C. Following the conclusion of its
review, the Department shall develop a draft certification or denial. A draft
certification, including (i) any additional conditions for activities in upland
areas necessary to protect water quality and (ii) a condition that the
applicant shall not commence land-disturbing activity prior to approval by the
Department of the erosion and sediment control plan and stormwater management
plan required pursuant to subsection E, shall be noticed for public comment and
potential issuance by the Department or the Board pursuant to §
62.1-44.15:02. The Department shall make the information contained in the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C available to the public.
E. Notwithstanding any applicable annual standards and specifications for erosion and sediment control or stormwater management pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.), the applicant shall not commence land-disturbing activity prior to resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and approval by the Department of an erosion and sediment control plan and stormwater management plan in accordance with applicable regulations. The Department shall act on any plan submittal within 60 days after initial submittal of a completed plan to the Department. The Department may issue either approval or disapproval and shall provide written rationale for its decision. The Department shall act on any plan that has been previously disapproved within 30 days after the plan has been revised and resubmitted for approval.
F. No action by either the Department or the Board on a certification pursuant to this article shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval.
G. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
H. Neither the Department nor the Board shall expressly waive certification of a natural gas transmission pipeline of greater than 36 inches inside diameter under § 401 of the federal Clean Water Act (33 U.S.C. § 1341). The Department or the Board shall act on any certification request within a reasonable period of time pursuant to federal law. Nothing in this section shall be construed to prohibit the Department or the Board from taking action to deny a certification in accordance with the provisions of § 401 of the federal Clean Water Act (33 U.S.C. § 1341).
§ 62.1-44.15:83. Requests for public hearing, hearings, and final decisions procedures.
A. The issuance of a certification pursuant to this article
shall be a permit action for purposes of § 62.1-44.15:02.
B. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
§ 62.1-104. Definitions.
(1) Except as modified below, the definitions contained in Title 1 shall apply in this chapter.
(2) "Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
(3) "Impounding structure" means a man-made device, whether a dam across a watercourse or other structure outside a watercourse, used or to be used for the authorized storage of flood waters for subsequent beneficial use.
(4) "Watercourse" means a natural channel having a well-defined bed and banks and in which water flows when it normally does flow. For the purposes hereof they shall be limited to rivers, creeks, streams, branches, and other watercourses which are nonnavigable in fact and which are wholly within the jurisdiction of the Commonwealth.
(5) "Riparian land" is land which is contiguous to and touches a watercourse. It does not include land outside the watershed of the watercourse. Real property under common ownership and which is not separated from riparian land by land of any other ownership shall likewise be deemed riparian land, notwithstanding that such real property is divided into tracts and parcels which may not bound upon the watercourse.
(6) "Riparian owner" is an owner of riparian land.
(7) "Average flow" means the average discharge of a stream at a particular point and normally is expressed in cubic feet per second. It may be determined from actual measurements or computed from the most accurate information available.
(8) "Diffused surface waters" are those which, resulting from precipitation, flow down across the surface of the land until they reach a watercourse, after which they become parts of streams.
(9) "Floodwaters" means water in a stream which is over and above the average flow.
(10) "Court" means the circuit court of the county or city in which an impoundment is located or proposed to be located.
§ 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. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means 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 Board 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.
§ 62.1-248.2. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise:
"Agricultural irrigation" means irrigation that is used to support any operation devoted to the bona fide production of crops, animals, or fowl, including the production of fruits and vegetables of any kind; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silvicultural activity.
"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.
"Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations, including regulations to establish general permits, pursuant to this chapter, "Board" means the Department of Environmental Quality.
"Department" means the Department of Environmental Quality.
"Eastern Shore Groundwater Management Area" means the ground water management area declared by the Board encompassing the Counties of Accomack and Northampton.
"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 the 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 Board permitting the withdrawal of a specified quantity of ground water in a ground water management area.
"Irrigation" means the controlled application of water through man-made systems to supply water requirements not satisfied by rainfall to assist in the growing or maintenance of vegetative growth.
"Nonagricultural irrigation" means all irrigation other than agricultural irrigation.
"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 the Commonwealth or any other state or country.
"Surficial aquifer" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.
§ 62.1-263.1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
2. That §§ 10.1-1322.01 and 62.1-44.15:02 of the Code of Virginia are repealed.
3. That any permits or orders issued by the Air Pollution Control Board or the State Water Control Board prior to the effective date of this act shall continue in full force and are enforceable by the Department of Environmental Quality.
4. That nothing in this act shall be construed to limit or impact § 3.2-301 or 15.2-2288.6 of the Code of Virginia.
5. That at each regular meeting of the Air Pollution Control Board and the State Water Control Board (the Boards), the Director of the Department of Environmental Quality (the Department) shall provide an overview and update regarding any controversial permits pending before the Department that are relevant to each board. Immediately after such presentation by the Director of the Department (the Director), the Boards shall have an opportunity to respond to the Director's presentation and provide commentary regarding such pending permits. Before rendering a final decision on a controversial permit, the Department shall publish a summary of public comments received during the applicable public comment period and the Department’s responses to the same. After such publication, the Department shall provide opportunity for correction by individuals who previously commented, either at a public hearing or in writing during the applicable public comment period. Such correction shall be limited to a correction of factual misstatements in the summary provided by the Department. No new information will be accepted at that time.
SENATE BILL NO. 657
Be it enacted by the General Assembly of Virginia:
1. That §§ 3.2-401, 10.1-1186.3, 10.1-1306 through 10.1-1307.02, 10.1-1307.04, 10.1-1308.1 through 10.1-1314, 10.1-1315, 10.1-1316, 10.1-1318, 10.1-1320, 10.1-1320.1, 10.1-1322, 10.1-1322.4, 10.1-1333, 15.2-2403.3, as it may become effective, 15.2-5101, 28.2-1205.1, 46.2-1601, 62.1-44.3, as it is currently effective and as it may become effective, 62.1-44.14, 62.1-44.15:81, 62.1-44.15:83, 62.1-242, and 62.1-255 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 62.1-44.2:1, by adding in Article 1 of Chapter 3.1 of Title 62.1 a section numbered 62.1-44-6.1, and by adding sections numbered 62.1-248.2 and 62.1-263.1 as follows:
§ 3.2-401. Exclusions from chapter.
This chapter shall not apply to any agricultural activity to
which: (i) Article 12 (§ 10.1-1181.1
et seq.) of Chapter 11 of Title 10.1; or (ii)
a water-related permit issued by
the State Water Control Board, Department of Environmental Quality
applies.
§ 10.1-1186.3. Additional powers of Boards and the Department; 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, or the Director, in his 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 by the Board or the issuance of a permit by the Department in which it is apparent that there are significant issues of disagreement among interested persons and for which the Board or the Department finds that the use of a mediation or dispute resolution proceeding is in the public interest. The Boards or the Department 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 Department;
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 or the Department 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 Department or 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 or the Department. 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 or the Department'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 or the
Department, but may be considered by a Board the Department
in issuing a permit or by a Board in
promulgating a regulation.
D. Each Board and the Department
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 Department 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 the Department or a Board uses or relies on information obtained in the course of such proceeding in issuing a permit or promulgating a regulation, respectively.
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.
§ 10.1-1306. Inspections, investigations, etc.
The Board Department 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. Further powers and duties of Board and Department.
A. The Board shall have the power to control and regulate its
internal affairs;. The Department shall have the power to
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 § 10.1-1307.05 and 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, it the Department may in its discretion grant local
variances therefrom, if it finds after an investigation and hearing that local
conditions warrant. If local variances are permitted, the Board Department shall issue an
order to this effect. Such order shall be subject to revocation or amendment at
any time if the Board Department, 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, it the
Department 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 the Board's 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 Department 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, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has certified that the location and operation of the proposed facility or activity is suitable 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 Department shall 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 not:
1. Adopt any regulation limiting emissions from wood heaters; or
2. Enforce against a manufacturer, distributor, or consumer any federal regulation limiting emissions from wood heaters adopted after May 1, 2014.
H. The Board Department 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.
I. In granting a permit pursuant to this section, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit, pursuant to this section, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 10.1-1307.01. Further duties of Board and Department; localities particularly affected.
A. Before The Board, before promulgating
a regulation under consideration, or the Department, before
granting a variance to an existing regulation, or issuing a permit for the
construction of a new major source or for a major modification to an existing
source, if the Board finds it is found that there is a
locality particularly affected by the regulation, variance, or permit, the Board shall, respectively:
1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in each locality 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 provide information regarding specific pollutants and the total quantity of each that 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 of and the planning district commission for such locality.
Written comments shall be accepted by the Board for at least
15 days after any hearing on the regulation,
variance, or permit, unless the Board votes to shorten the
period. Written comments shall be accepted by the Department
for at least 15 days after any hearing on the variance or permit.
B. Before If the Department finds, before
granting any variance to an existing regulation or issuing any permit for (i) a
new fossil fuel-fired generating facility with a capacity of 500 megawatts or
more, (ii) a major modification to an existing source that is a fossil
fuel-fired generating facility with a capacity of 500 megawatts or more, (iii)
a new fossil fuel-fired compressor station facility used to transport natural
gas, or (iv) a major modification to an existing source that is a fossil fuel-fired
compressor station facility used to transport natural gas, if the
Board finds that there is a locality particularly affected
by such variance or permit, the Board Department shall:
1. Require the applicant to publish a notice in at least one
local paper of general circulation in any locality particularly affected at
least 60 days prior to the close of any public comment period. Such notice
shall (i) contain a statement of the estimated local impact of the proposed
action; (ii) provide information regarding specific pollutants and the total
quantity of each that may be emitted; (iii) list the type, quantity, and source
of any fuel to be used; (iv) advise the public how to
request Board consideration or as to
the date and location of a public hearing; and (v) advise
the public where to obtain information regarding the proposed action. The
Department shall post such notice on the Department website and on a Department
social media account.
2. Require the applicant to mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.
Written comments shall be accepted by the Board Department for at least 30
days after any hearing on such variance or permit, unless the Board votes Director elects to shorten the
period.
C. For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.
§ 10.1-1307.02. Permit for generation of electricity during ISO-declared emergency.
A. As used in this section:
"Emergency generation source" means a stationary internal combustion engine that operates according to the procedures in the ISO's emergency operations manual during an ISO-declared emergency.
"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the Board pursuant to subsection B.
"Retail customer" has the same meaning ascribed thereto in § 56-576.
B. The Board shall adopt a general permit or
permits regulation
for the use of back-up generation to authorize the construction, installation,
reconstruction, modification, and operation of emergency generation sources
during ISO-declared emergencies. Such general permit or
permits regulation
shall include a definition of "emergency" that is compatible with the
ISO's emergency operations manual. After adoption of such general permit or permits
regulation, any amendments to the Board's regulations
necessary to carry out the provisions of this section shall be exempt from
Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.
§ 10.1-1307.04. Greenhouse gas emissions inventory.
A. The Department shall conduct a comprehensive statewide baseline and projection inventory of all greenhouse gas (GHG) emissions and shall update such inventory every four years. The Board may adopt regulations necessary to collect from all source sectors data needed by the Department to conduct, update, and maintain such inventory.
B. The Board Department shall include the
inventory in the report required pursuant to subsection H of § 10.1-1307,
beginning with the report issued prior to October 1, 2022, and every four years
thereafter. The Department shall publish such inventory on its website, showing
changes in GHG emissions relative to an estimated GHG emissions baseline case
for calendar year 2010.
C. Any information, except emissions data, that is reported to or otherwise obtained by the Department pursuant to this section and that contains or might reveal proprietary information shall be confidential and shall be exempt from the mandatory disclosure requirements of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Each owner shall notify the Director or his representative of the existence of proprietary information if he desires the protection provided pursuant to this subsection.
§ 10.1-1308.1. Streamlined permitting process for qualified energy generators.
A. As used in this section:
"Biomass" means organic material that is available on a renewable or recurring basis, including:
1. Forest-related materials, including mill residues, logging residues, forest thinnings, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;
2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;
3. Animal waste, including manure and slaughterhouse and other processing waste;
4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes and wood contaminated with plastic;
5. Crops and trees planted for the purpose of being used to produce energy;
6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and
7. Municipal solid waste, excluding tires and medical and hazardous waste.
"Expedited process" means a process that (i) requires
the applicant to pay fees to the Commonwealth in connection with the issuance
and processing of the permit application that do not exceed $50 and (ii) has a
duration, from receipt of a complete permit application until final action by
the Board or Department on the
application, not longer than 60 days.
"Qualified energy generator" means a commercial facility located in the Commonwealth with the capacity annually to generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product, that is generated or produced from biomass, and that is sold to an unrelated person or used in a manufacturing process.
B. The Board Department shall develop an
expedited process for issuing any permit that the
Board it is
required to issue for the construction or operation of a qualified energy
generator. The development of the expedited permitting process shall be in
accordance with subdivision A 8 of § 2.2-4006; however, if the construction or
operation of a qualified energy generator is subject to a major new source
review program required by § 110(a)(2)(C) of the federal Clean Air Act, this
section shall not apply.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board Department 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 Board Department, 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 Department 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 Department 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 Board
Department 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 Board Department 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, it 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 Board Department finds that an owner
who has been issued a special order or an emergency special order is not
complying with the terms thereof, it 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 Board Department, 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's
Department'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 Board Department 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 Board Department
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 Board Department may deem
appropriate. The Board Department may require that
such plan and instruments be updated as appropriate. The Board Department
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 Department pursuant to hearing.
Any decision by the Board Department 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's
Department'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
Department, 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 by the Board
Department, the Board Department 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.
§ 10.1-1312. Air pollution control districts.
A. The Board Department may create, within
any area of the Commonwealth, local air pollution control districts comprising
a city or county or a part or parts of each, or two or more cities or counties,
or any combination or parts thereof. Such local districts may be established by
the Board
Department on its own motion or upon request of the
governing body or bodies of the area involved.
B. In each district there shall be a local air pollution
control committee, the members of which shall be appointed by the Board Department
from lists of recommended nominees submitted by the respective governing bodies
of each locality, all or a portion of which are included in the district. The
number of members on each committee shall be in the discretion of the Board
Department. When a district includes two or more localities
or portions thereof, the Board Department shall apportion the
membership of the committee among the localities, provided that each locality
shall have at least one representative on the committee. The members shall not
be compensated out of state funds, but may be reimbursed for expenses out of
state funds. Localities may provide for the payment of compensation and
reimbursement of expenses to the members and may appropriate funds therefore.
The portion of such payment to be borne by each locality shall be prescribed by
agreement.
C. The local committee is empowered to observe compliance with
the regulations of the Board and report instances of noncompliance to the Board
Department, to conduct educational programs relating to air
pollution and its effects, to assist the Department in its air monitoring
programs, to initiate and make studies relating to air pollution and its
effects, and to make recommendations to the Board Department.
D. The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies.
§ 10.1-1313. State Advisory Board on Air Pollution.
The Board Department is authorized to
name qualified persons to a State Advisory Board on Air Pollution.
§ 10.1-1314. Owners to furnish plans, specifications and information.
Every owner which the Board Department has reason to
believe is causing, or may be about to cause, an air pollution problem shall on
request of the Board Department furnish such plans,
specifications and information as may be required by the Board Department 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.
§ 10.1-1315. Right of entry.
Whenever it is necessary for the purposes of this chapter, the Board
Department or any member,
agent or employee thereof, when duly authorized by the Board Director, 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 Department order, 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 Department order, 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
Department order, or any provision of this chapter, or any
permit condition, the Board Department may provide, in any
order issued by the Board Department 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 Board Department 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 Department.
A. Any owner aggrieved by a final decision of the Board
Department 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 Board
Department under § 10.1-1322 and who has exhausted all
available administrative remedies for review of the Board's Department's decision, shall
be entitled to judicial review of the Board's Department'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 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.
§ 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 regulation, or Department order, 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 (i) this chapter or,
(ii) any regulation of the Board, or (iii) order
of the Board
Department, 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 and subject to § 10.1-1322.01,
permits may be issued, amended, revoked or terminated and reissued by the
Department 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 of the Board and orders of the Board
Department under the provisions of this chapter. To the
extent allowed by federal law, any person holding a permit who is intending to
upgrade the permitted facility by installing technology, control equipment, or
other apparatus that the permittee demonstrates to the satisfaction of the
Director will result in improved energy efficiency, will reduce the emissions
of regulated air pollutants, and meets the requirements of Best Available
Control Technology shall not be required to obtain a new, modified, or amended
permit. The permit holder shall provide the demonstration anticipated by this
subsection to the Department no later than 30 days prior to commencing
construction.
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 operating permit program established
pursuant to Title V of the federal Clean Air Act or (ii) the Governor
determines that such fees are needed earlier to maintain primacy over the
program. The annual fees shall be based on the actual emissions (as calculated
or estimated) of each regulated pollutant, as defined in § 502 of the federal
Clean Air Act, in tons per year, not to exceed 4,000 tons per year of each
pollutant for each source. The annual permit program fees shall not exceed a
base year amount of $25 per ton using 1990 as the base year, and shall be
adjusted annually by the Consumer Price Index as described in § 502 of the
federal Clean Air Act. Permit program fees for air pollution sources who receive
state operating permits in lieu of Title V operating permits shall be paid in
the first year and thereafter shall be paid biennially. The fees shall
approximate the direct and indirect costs of administering and enforcing the
permit program, and of administering the small business stationary source
technical and environmental compliance assistance program as required by the
federal Clean Air Act. The Board Department 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 and Appropriations, 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 Board Department, 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 federal law or regulation, 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 his 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. To the extent allowed by federal law or
regulation, no demonstration shall be required for the use of processed animal
fat, processed fish oil, processed vegetable oil, distillate oil, or any
mixture thereof in place of the same quantity of residual oil to fire
industrial boilers.
§ 10.1-1333. Permitting process for clean coal projects.
To the extent authorized by federal law, the Board Department
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.
§ 15.2-2403.3. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Stormwater service districts; allocation of revenues.
Any town located within a stormwater service district created
pursuant to this chapter shall be entitled to any revenues collected within the
town pursuant to subdivision 6 of § 15.2-2403, subject to the limitations set
forth therein, so long as the town maintains its own municipal separate storm
sewer system (MS4) permit issued by the State Water Control Board Department of Environmental Quality
or maintains its own stormwater service district.
§ 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 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.
"Green roof" means a roof or partially covered roof consisting of plants, soil, or another lightweight growing medium that is installed on top of a waterproof membrane and designed in accordance with the Virginia Stormwater Management Program's standards and specifications for green roofs, as set forth in the Virginia BMP Clearinghouse.
"Improvements" means such repairs, replacements, additions, extensions and betterments of and to a 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 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 Board Department 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. § 2011, 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.
"System" means any sewage disposal system, sewer system, stormwater control system, water or waste system, and for authorities created under Article 6 (§ 15.2-5152 et seq.) of this chapter, such facilities as may be provided by the authority under § 15.2-5158.
"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.
§ 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 § 62.1-44.15:20 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 Wildlife Resources, 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 Board Department 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 Board Department 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 Board Department 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.
§ 46.2-1601. Licensing of dealers of salvage vehicles; fees.
A. It shall be unlawful for any person to engage in business in the Commonwealth as an auto recycler, salvage pool, or vehicle removal operator without first acquiring a license issued by the Commissioner for each such business at each location. The fee for the first such license issued or renewed under this chapter shall be $100 per license year or part thereof. The fee for each additional license issued or renewed under this chapter for the same location shall be $25 per license year or part thereof. However, no fee shall be charged for supplemental locations of a business located within 500 yards of the licensed location.
B. No license shall be issued or renewed for any person unless
(i) the licensed business contains at least 600 square feet of enclosed space,
(ii) the licensed business is shown to be in compliance with all applicable
zoning ordinances, and (iii) the applicant may (a) certify to the Commissioner
that the licensed business is permitted under a Virginia Pollutant Discharge
Elimination System individual or general permit issued by the State Water Control Board Department of Environmental Quality
for discharges of storm water associated with industrial activity and provides
the permit number(s) from such permit(s) or (b) certify to the Commissioner
that the licensed business is otherwise exempt from such permitting
requirements. Nothing in this section shall authorize any person to act as a
motor vehicle dealer or salesperson without being licensed under Chapter 15 (§
46.2-1500 et seq.) and meeting all requirements imposed by such chapter.
C. Licenses issued under this section shall be deemed not to have expired if the renewal application and required fees as set forth in subsection A are received by the Commissioner or postmarked not more than 30 days after the expiration date of such license. Whenever the renewal application is received by the Commissioner or postmarked not more than 30 days after the expiration date of such license, the license fees shall be 150 percent of the fees provided for in subsection A.
D. The Commissioner may offer an optional multiyear license for any license set forth in this section. When such option is offered and chosen by the licensee, all fees due at the time of licensing shall be multiplied by the number of years for which the license will be issued.
§ 62.1-44.2:1. Definition; State Water Control Board.
As used in this title, "Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations pursuant to this title, "Board" means the Department of Environmental Quality.
§ 62.1-44.3. (For expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations pursuant to this title, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate issued by the Board
Department.
"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 § 3.2-300 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.
§ 62.1-44.3. (For effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) 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. However, when used outside the context of the promulgation of regulations pursuant to this title, "Board" means the Department of Environmental Quality.
"Certificate" means any certificate or permit issued
by the Board
Department.
"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.
"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of § 62.1-44.15:55 have been met.
"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.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:
1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under § 208 of the federal Clean Water Act (33 U.S.C. § 1251 et seq.) that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.2-300 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 subdivision (10) of § 62.1-44.15.
"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 subdivision (7) of § 62.1-44.15.
"Ruling" means a ruling issued under subdivision (9) of § 62.1-44.15.
"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.
§ 62.1-44.6:1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 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, 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 Executive Director to 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. The Executive Director shall prepare, approve, and submit all
requests for appropriations and be responsible for all expenditures pursuant to
appropriations. The Executive Director shall be vested with all the authority of
the Board when it is not in session, except for the Board's authority to consider permits pursuant to § 62.1-44.15:02
and to issue special orders pursuant to subdivisions (8a)
and (8b) of § 62.1-44.15 and subject to such regulations as may be prescribed by
the Board. In no event shall the Executive Director have the authority to adopt
or promulgate any regulation.
§ 62.1-44.15:81. Application and preparation of draft certification conditions.
A. Any applicant for a federal license or permit for a natural gas transmission pipeline greater than 36 inches inside diameter subject to § 7c of the federal Natural Gas Act (15 U.S.C. § 717f(c)) shall submit a separate application, at the same time the Joint Permit Application is submitted, to the Department containing a description of all activities that will occur in upland areas, including activities in or related to (i) slopes with a grade greater than 15 percent; (ii) karst geology features, including sinkholes and underground springs; (iii) proximity to sensitive streams and wetlands identified by the Department of Conservation and Recreation or the Department of Wildlife Resources; (iv) seasonally high water tables; (v) water impoundment structures and reservoirs; and (vi) areas with highly erodible soils, low pH, and acid sulfate soils. Concurrently with the Joint Permit Application, the applicant shall also submit a detailed erosion and sediment control plan and stormwater management plan subject to Department review and approval.
B. After receipt of an application in accordance with subsection A, the Department shall issue a request for information about how the erosion and sediment control plan and stormwater management plan will address activities in or related to the upland areas identified in subsection A. The response to such request shall include the specific strategies and best management practices that will be utilized by the applicant to address challenges associated with each area type and an explanation of how such strategies and best management practices will ensure compliance with water quality standards.
C. At any time during the review of the application, but prior to issuing a certification pursuant to this article, the Department may issue an information request to the applicant for any relevant additional information necessary to determine (i) if any activities related to the applicant's project in upland areas are likely to result in a discharge to state waters and (ii) how the applicant proposes to minimize water quality impacts to the maximum extent practicable to protect water quality. The information request shall provide a reasonable amount of time for the applicant to respond.
D. The Department shall review the information contained in
the application, the response to the information request in subsection B, and
any additional information obtained through any information requests issued
pursuant to subsection C to determine if any activities described in the
application or in any additional information requests (i) are likely to result
in a discharge to state waters with the potential to adversely impact water
quality and (ii) will not be addressed by the Virginia Water Protection Permit
issued for the activity pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.). The
Department of Wildlife Resources, the Department of Conservation and
Recreation, the Department of Health, and the Department of Agriculture and
Consumer Services shall consult with the Department during the review of the
application and any additional information obtained through any information
requests issued pursuant to subsection B or C. Following the conclusion of its
review, the Department shall develop a draft certification or denial. A draft
certification, including (i) any additional conditions for activities in upland
areas necessary to protect water quality and (ii) a condition that the
applicant shall not commence land-disturbing activity prior to approval by the
Department of the erosion and sediment control plan and stormwater management
plan required pursuant to subsection E, shall be noticed for public comment and
potential issuance by the Department or the Board pursuant to
§ 62.1-44.15:02. The Department shall make the information
contained in the application and any additional information obtained through
any information requests issued pursuant to subsection B or C available to the
public.
E. Notwithstanding any applicable annual standards and specifications for erosion and sediment control or stormwater management pursuant to Article 2.3 (§ 62.1-44.15:24 et seq.) or 2.4 (§ 62.1-44.15:51 et seq.), the applicant shall not commence land-disturbing activity prior to resolution of any unresolved issues identified in subsection B to the satisfaction of the Department and approval by the Department of an erosion and sediment control plan and stormwater management plan in accordance with applicable regulations. The Department shall act on any plan submittal within 60 days after initial submittal of a completed plan to the Department. The Department may issue either approval or disapproval and shall provide written rationale for its decision. The Department shall act on any plan that has been previously disapproved within 30 days after the plan has been revised and resubmitted for approval.
F. No action by either the Department or the Board on a certification pursuant to this article shall alter the siting determination made through Federal Energy Regulatory Commission or State Corporation Commission approval.
G. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
H. Neither the Department nor the Board shall expressly waive certification of a natural gas transmission pipeline of greater than 36 inches inside diameter under § 401 of the federal Clean Water Act (33 U.S.C. § 1341). The Department or the Board shall act on any certification request within a reasonable period of time pursuant to federal law. Nothing in this section shall be construed to prohibit the Department or the Board from taking action to deny a certification in accordance with the provisions of § 401 of the federal Clean Water Act (33 U.S.C. § 1341).
§ 62.1-44.15:83. Requests for public hearing, hearings, and final decisions procedures.
A. The issuance of a certification pursuant to this article
shall be a permit action for purposes of §
62.1-44.15:02.
B. The Department shall assess an administrative charge to the applicant to cover the direct costs of services rendered associated with its responsibilities pursuant to this section.
§ 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. However, when used outside the context of the promulgation of regulations pursuant to this title, "Board" means 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 Board 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.
§ 62.1-248.2. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
§ 62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise:
"Agricultural irrigation" means irrigation that is used to support any operation devoted to the bona fide production of crops, animals, or fowl, including the production of fruits and vegetables of any kind; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silvicultural activity.
"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.
"Board" means the State Water Control Board. However, when used outside the context of the promulgation of regulations pursuant to this title, "Board" means the Department of Environmental Quality.
"Department" means the Department of Environmental Quality.
"Eastern Shore Groundwater Management Area" means the ground water management area declared by the Board encompassing the Counties of Accomack and Northampton.
"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 the 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 Board permitting the withdrawal of a specified quantity of ground water in a ground water management area.
"Irrigation" means the controlled application of water through man-made systems to supply water requirements not satisfied by rainfall to assist in the growing or maintenance of vegetative growth.
"Nonagricultural irrigation" means all irrigation other than agricultural irrigation.
"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 the Commonwealth or any other state or country.
"Surficial aquifer" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.
§ 62.1-263.1. Permit rationale.
In granting a permit pursuant to this chapter, the Department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the Department is to deny a permit pursuant to this chapter, the Department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the Department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.
2. That §§ 10.1-1322.01 and 62.1-44.15:02 of the Code of Virginia are repealed.
3. That any permits or orders issued by the Air Pollution Control Board or the State Water Control Board prior to the effective date of this act shall continue in full force and are enforceable by the Department of Environmental Quality.
4. That nothing in this act shall be construed to limit or impact § 3.2-301 or 15.2-2288.6 of the Code of Virginia.