Administrative Code

Virginia Administrative Code
2/22/2024

Article 3. Procedures [Repealed]

12VAC5-590-60. (Repealed.)

Historical Notes

Derived from VR355-18-003.01 § 1.7, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-70. Powers and procedures.

The board reserves the right to utilize any lawful procedure for the enforcement of this chapter.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.02 § 1.8, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-80. (Repealed.)

Historical Notes

Derived from VR355-18-003.03 § 1.9, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-90. [Reserved]. (Reserved)

12VAC5-590-100. Exception; emergency regulations.

If the establishment of a regulation is necessary to meet any emergency not provided for by this chapter, the board or commissioner acting on behalf of the board when it is not in session may immediately promulgate and adopt the necessary regulation by complying with the procedures set forth in either § 2.2-4011 or § 32.1-13 of the Code of Virginia.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.05 § 1.11, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-110. Enforcement.

A. Notice. Whenever the department has reason to believe that a violation of Title 32.1 of the Code of Virginia or of any section of this chapter may have occurred or may be occurring, the department shall notify the alleged violator. The notice shall (i) be in writing; (ii) cite the statute or regulations that are allegedly being violated; (iii) state the facts that form the basis for believing that the violation may have occurred or may be occurring; and (iv) include information on the process for obtaining a final decision or fact finding from the department on whether or not a violation has occurred. This notification is not an official finding, case decision, or adjudication but may include a request to the owner to respond timely and to take specific corrective action by a stated deadline.

B. Orders. Pursuant to § 32.1-26 of the Code of Virginia, the board may issue orders to require any owner to comply with the provisions of any law administered by it, the commissioner, or the department; any regulations promulgated by the board, including any section of this chapter; or any case decision of the board or commissioner. The commissioner, acting on behalf of the board when it is not in session, will sign the order, and the order may require:

1. The immediate cessation or correction of the violation;

2. The acquisition or use of additional equipment, supplies, or personnel to ensure that the violation does not recur;

3. The submission of a plan to prevent future violations;

4. The submission of an application for a variance or exemption;

5. Any other corrective action deemed necessary for proper compliance with this chapter; or

6. An evaluation and approval of the required submissions, if appropriate.

C. Compliance with effective orders and this chapter. The commissioner may act as the agent of the board to enforce all effective orders and this chapter. Should any owner fail to comply with any effective order or this chapter, the commissioner may:

1. Institute an administrative proceeding to revoke the owner's permit in accordance with 12VAC5-590-320 and § 32.1-174 of the Code of Virginia or other appropriate administrative remedies;

2. Request the criminal prosecution by a Commonwealth's attorney with the appropriate jurisdiction in accordance with § 32.1-27 of the Code of Virginia;

3. Request civil action by the Attorney General to impose a civil penalty, seek injunctive relief, or other appropriate legal remedies pursuant to §§ 32.1-27 and 32.1-176 of the Code of Virginia; or

4. Do any combination of subdivision C 1, C 2, or C 3 of this section.

D. Special order. Pursuant to § 32.1-175.01 of the Code of Virginia, the commissioner may, after an informal fact-finding proceeding held in accordance with § 2.2-4019 of the Code of Virginia, issue a special order that may include a civil penalty against an owner who violates the Public Water Supplies Law, §§ 32.1-167 through 32.1-176 of the Code of Virginia, this chapter, or any order of the board.

E. Graduated enforcement actions. Nothing in this section shall prevent the commissioner or department from making efforts to obtain voluntary compliance through conference, warning, or other appropriate means before issuance of an order, instituting an administrative proceeding, or requesting an action by a Commonwealth's Attorney or the Attorney General.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.06 § 1.12, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-115. Administrative proceedings.

A. Types of administrative proceedings. Administrative proceedings before the board, the commissioner, or the commissioner's designee, shall include the following forms depending upon the nature of the controversy and the interests of the named party involved.

1. An informal fact-finding proceeding is an informal conference between the department and the named party held in accordance with § 2.2-4019 of the Code of Virginia.

2. A formal hearing is an adjudicatory proceeding before the commissioner or a designated hearing officer held in accordance with § 2.2-4020 of the Code of Virginia.

B. Request for administrative proceeding. The named party may request an administrative proceeding by sending a request in writing to the department.

C. Administrative proceeding as a matter of right. The named party whose rights, duties, or privileges have been or may be affected by any action or inaction of the board, commissioner, or department in the administration of this chapter, has a right to both an informal fact-finding proceeding and a formal hearing; however, the commissioner reserves the right to require participation in an informal fact-finding proceeding before granting the request for a formal hearing.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-120. Emergency orders.

A. The commissioner may, pursuant to § 32.1-175 of the Code of Virginia, issue emergency orders in any case where there is an imminent danger to the public health resulting from the operation of any waterworks or the source of a water supply.

B. An emergency order may be communicated by the best practical notice under all the circumstances and is effective immediately upon receipt. The commissioner may order the immediate cessation of the operation of any waterworks or the use of any water supply or the correction of any condition causing the production or distribution of any water constituting an imminent danger to the public health and welfare.

C. Violation of an emergency order is subject to civil enforcement and is punishable as a criminal misdemeanor.

D. Emergency orders shall be effective for a period determined by the commissioner.

E. Emergency orders may be appealed in accordance with the provisions of the APA.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.07 § 1.13, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-125. Chronically noncompliant waterworks.

A. If the commissioner or department determines that a waterworks is a chronically noncompliant waterworks, as defined in § 32.1-167 of the Code of Virginia, then the commissioner shall issue an order to the owner containing a schedule to bring the waterworks into compliance with this chapter and require the submission of a waterworks business operation plan. If capital improvements are necessary to bring the waterworks into compliance, and the owner does not possess sufficient assets to make the necessary improvements, the order shall require the owner to make annual, good faith applications for loans, grants, or both, to appropriate financial institutions to secure funding for such improvements, until the improvements are complete and operational. The owner shall provide a copy of the order to each consumer within 10 calendar days of issuance of the order.

B. Within 15 calendar days of issuance of the commissioner's order, the owner shall certify in writing that a copy of the order was distributed to each consumer within the 10-day period specified in subsection A of this section.

C. The commissioner shall send a copy of the order to the chief administrative officer of the locality in which the waterworks is located for appropriate action under § 15.2-2146 of the Code of Virginia.

D. In addition to the provisions of § 32.1-27 of the Code of Virginia, any owner who violates this chapter, an order of the board, or a statute governing public water supplies shall be subject to those civil penalties provided in Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 19, eff. June 21, 2012; amended, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-130. Suspension of this chapter.

If, in the case of a man-made or natural disaster, the commissioner determines that certain regulations cannot be complied with, then the enforcement of those regulations may be suspended for designated waterworks and a provisional regulatory scheme instituted until the conditions that brought about the suspension have abated.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.08 § 1.14, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-140. Variances.

A. The commissioner may grant a variance to a PMCL, SMCL, treatment technique requirement, or an operational regulation by following the appropriate procedures set forth in this section.

1. Requirements for a variance. A variance may be granted to a waterworks from any requirement with respect to a PMCL or SMCL upon a finding that:

a. Alternative water supplies are not reasonably available to the waterworks;

b. The characteristics of the source water that is reasonably available to the waterworks prevents the waterworks from meeting the PMCL or SMCL requirements, and on condition that the waterworks installs the BAT, treatment techniques, or other means, that the department finds are generally available (taking costs into consideration); and

c. The granting of a variance will not result in an unreasonable risk to the health of persons served by the waterworks.

2. The commissioner may grant one or more treatment technique variances to a waterworks from any requirement of a specified treatment technique upon a finding that the waterworks applying for the variance has demonstrated that the treatment technique is not necessary to protect the health of persons because of the nature of the source water at the waterworks.

3. The commissioner may grant a variance to a waterworks from an operational regulation if a thorough investigation reveals that the hardship imposed outweighs the benefits that may be received by the public and that the granting of the variance does not subject the public to unreasonable health risks.

4. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

B. Request for a variance. Any owner may apply in writing for a variance. The request shall be sent to the department for evaluation. All requests for a variance shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare;

6. Other information, if any, believed by the owner to be pertinent to the request; and

7. Any other information as may be required by the commissioner to make the determination.

C. For any request made for a PMCL variance, the owner shall also include:

1. An explanation in full and evidence of the BAT;

2. The economic and legal factors relevant to the owner's ability to comply;

3. The analytic results of source water quality relevant to the variance request;

4. A proposed compliance schedule including the date each step toward compliance will be achieved. The schedule shall include as a minimum the following dates:

a. The date by which arrangement for an alternative source water or improvement of an existing source water will be completed;

b. The date of initiation of the connection of the alternative source water or improvement of the existing source water; and

c. The date by which final compliance is to be achieved.

5. A plan for the provision of potable water in the case of an excessive rise in the contaminant level for which the variance is requested;

6. A plan for interim control measures during the effective period of the variance; and

7. A plan for notifying the consumers at least once every three months, or more frequently if determined by the commissioner, that the waterworks is operating under the conditions of a variance.

D. For any request made for a treatment technique variance, the owner must also include a statement that monitoring and other reasonable requirements prescribed by the commissioner as a condition to the variance will be performed.

E. Consideration of a variance request.

1. The commissioner shall act on any variance request submitted pursuant to subsection B of this section within 90 days of receipt of the submittal.

2. The commissioner will consider comments received during the comment period and testimony in the record of a public hearing held before making a determination.

3. In the commissioner's consideration of whether the waterworks is unable to comply with a contaminant level required by this chapter because of the nature of the source water, the commissioner shall consider such factors as the following:

a. The availability and effectiveness of BAT for which the variance is requested; and

b. The cost and other economic considerations such as implementing treatment, improving the quality of the source water, or using an alternate source.

4. In the commissioner's consideration of whether a waterworks should be granted a variance to a required treatment technique because the treatment is unnecessary to protect the public health, the commissioner shall consider such factors as the following:

a. Quality of the source water including water quality data and pertinent sources of pollution; and

b. Source protection measures employed by the waterworks.

5. In the commissioner's consideration of whether a waterworks should be granted a variance to a required operational procedure, the commissioner shall consider such factors as the following:

a. The effect that such a variance would have on the adequate operation of the waterworks, including operator safety in accordance with VOSH laws and regulations;

b. The cost and other economic considerations imposed by this requirement; and

c. The effect that such a variance would have on the protection of the public health.

F. Disposition of a variance request.

1. The commissioner may reject any request for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. If the commissioner proposes to deny the variance, the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the variance, the applicant shall be notified in writing of this decision. The notice shall identify the variance, the waterworks covered, and shall specify the period of time for which the variance will be effective.

a. For a PMCL variance as specified in subdivision A 1 of this section, the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subdivision F 3 of this section.

b. For a treatment technique variance as specified in subdivision A 2 of this section, the notice shall provide that the variance may be terminated at any time upon a finding by the commissioner that the nature of the source water is such that the specified treatment technique for which the variance was granted is necessary to protect the public health or upon a finding that the waterworks has failed to comply with monitoring and other requirements prescribed by the commissioner as a condition to the granting of the variance.

c. For an operational variance as specified in subdivision A 3 of this section, the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the operational variance shall be the date of its issuance. A public hearing is not required before the issuance of an operational variance.

3. Schedules pursuant to PMCL and treatment technique variances:

a. The proposed schedule for compliance shall specify dates by which steps toward compliance are to be taken, including where applicable:

(1) Date by which arrangement for the alternative source water or improvement of the existing source water will be completed;

(2) Date of connection to the alternative source water or improvement of the existing source water; and

(3) Date by which final compliance is to be achieved.

b. If the waterworks has no access to an alternative source water and can effect or anticipate no adequate improvement of the existing source water, then the proposed schedule may specify an indefinite time period for compliance until a new and effective treatment technology is developed, at which time a new compliance schedule shall be prescribed by the commissioner.

c. The schedule for implementation of interim control measures during the period of variance shall specify interim treatment techniques, methods, and equipment and dates by which steps toward meeting the interim control measures are to be met.

d. The schedule shall be prescribed by the commissioner at the time the variance is granted.

e. For a PMCL variance specified in subdivision A 1 of this section, the commissioner shall propose a schedule for:

(1) Compliance (including increments of progress) by the waterworks with each contaminant level requirement covered by the variance; and

(2) Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level covered by the variance.

G. Public hearings on PMCL and treatment technique variances and their schedules.

1. Notice of a public hearing shall be provided before a variance and schedule proposed by the commissioner pursuant to subsection F of this section may take effect. A notice given pursuant to this subsection may cover the granting of more than one variance and a public hearing held pursuant to such notice shall include each of the variances covered by the notice.

2. Notice of a public hearing on a request for a variance and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located. The notice shall include a summary of the proposed variance and its schedule and shall contain the time, date, and place of the public hearing. If the schedule exceeds five years from the date of the variance, then the rationale for the extended compliance schedule shall be discussed in the notice.

H. Issuance of variance.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such hearing, revise the proposed variance as necessary and prescribe the final schedule for compliance and interim measures for the waterworks granted a variance. If the schedule for compliance exceeds five years from the date of issuance of the variance, then the commissioner shall document the rationale for the extended compliance schedule.

2. The compliance schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter. Such schedule shall also consider if the waterworks is to become part of a regional waterworks. The compliance schedule shall provide the shortest practicable time schedule under the circumstances.

I. Posting of variances. All variances granted to any waterworks are nontransferable. Each variance must be attached to the permit of the waterworks to which it is granted. Each variance is a condition to that permit and is revoked when the permit is revoked.

J. No variances shall be granted to 12VAC5-590-380, 12VAC5-590-388, 12VAC5-590-395, or 12VAC5-590-411.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.09 § 1.15, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 19, Issue 24, eff. September 10, 2003; Volume 21, Issue 16, eff. May 18, 2005; Volume 33, Issue 3, eff. November 2, 2016; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-150. Exemptions.

A. The commissioner may grant an exemption to any PMCL or treatment technique requirement by following the procedures set forth in this section. An exemption may be granted to a waterworks upon a finding that:

1. The waterworks must be unable to implement measures to develop an alternative water supply;

2. The waterworks cannot reasonably make management or restructuring changes that will result in compliance or improve the quality of the drinking water;

3. Due to compelling factors (which may include economic factors), the waterworks is unable to comply with contaminant level or treatment technique requirements;

4. The granting of the exemption will not result in an unreasonable risk to the health of persons served by the waterworks;

5. The waterworks was in operation on the effective date of such contaminant level or treatment technique requirements; and

6. The waterworks has not been granted a variance.

B. The owner may request an exemption for a waterworks by submitting a written request to the department for evaluation. All requests for an exemption shall include the following information:

1. A citation to the regulation from which the exemption is requested;

2. The nature and duration of the exemption requested;

3. The relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. An explanation of the compelling factors such as time or economic factors that prevent such waterworks from achieving compliance;

5. Other information believed by the owner to be pertinent to the request;

6. A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

7. Other information as may be required by the commissioner to make the determination.

C. Consideration of an exemption request.

1. The commissioner shall act on any exemption request submitted pursuant to subsection B of this section within 90 days of receipt of the request.

2. In the commissioner's consideration of whether the waterworks is unable to comply due to compelling factors, the commissioner shall consider such factors as the following:

a. The construction, installation, or modification of treatment equipment or systems;

b. The time needed to put a new water treatment plant into operation to replace an existing water treatment plant that is not in compliance;

c. The economic feasibility of compliance;

d. The availability of Drinking Water State Revolving Fund, a department program to assist waterworks in achieving the public health protection objectives of the SDWA, assistance or any other federal or state program that is reasonably likely to be available within the period of the exemption;

e. The consideration of rate increases, accounting changes, the appointment of a licensed operator under the state operator's licensure program, or contractual agreements for joint operation with one or more waterworks;

f. The activities consistent with Virginia's capacity development strategy to help the waterworks acquire and maintain technical, financial, and managerial capacity to come into compliance;

g. The ownership changes, physical consolidation with another waterworks, or other feasible and appropriate means of consolidation that would result in compliance; and

h. The availability of an alternative source of drinking water, including the feasibility of partnerships with neighboring waterworks, as identified by the waterworks or by the commissioner consistent with the capacity development strategy.

D. Disposition of an exemption request.

1. The commissioner may reject any request for an exemption by sending a rejection notice to the owner. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. If the commissioner proposes to deny the exemption, then the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the exemption, then the owner shall be notified in writing of this decision. The notice shall identify the exemption and the waterworks covered and shall specify the termination date of the exemption. Exemptions shall be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subsection F of this section.

3. The commissioner shall propose a schedule for:

a. Compliance (including increments of progress) by the waterworks with each contaminant level and treatment technique requirement covered by the exemption; and

b. Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level and treatment technique requirement covered by the exemption.

4. The schedule shall be prescribed by the commissioner at the time the exemption is granted.

5. For a waterworks that serves a population of not more than 3,300 persons and that needs financial assistance for the necessary improvements under the initial compliance schedule, an exemption granted by the commissioner may be for one or more additional two-year periods, but not to exceed a total of six additional years, only if the commissioner establishes that the waterworks is taking all practicable steps to meet the requirements of the exemption and the established compliance period. The commissioner will document the findings in granting an extension under this subdivision.

E. Public hearings on exemptions and their schedules.

1. Notice of a public hearing shall be provided before an exemption and schedule proposed by the commissioner pursuant to subsection D of this section may take effect. Such notice may cover the granting of more than one exemption, and a public hearing held pursuant to the notice shall include each of the exemptions covered by the notice.

2. Notice of a public hearing on a request for an exemption and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located.

3. The notice shall include a summary of the proposed exemption and its schedule and shall contain the time, date, and place of the public hearing.

F. Issuance of exemption.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during the hearing, revise the proposed exemption as necessary and prescribe the final compliance schedule and interim measures before issuing the exemption to the waterworks.

2. The schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this section. If the schedule for compliance exceeds five years from the date of issuance of the exemption, then the commissioner shall document the rationale for the extended compliance period. Such schedule shall also consider if the waterworks is to become part of a regional waterworks.

G. Posting of exemptions. All exemptions granted to any waterworks are nontransferable. Each exemption must be attached to the operation permit of the waterworks to which it is granted. Each exemption is a condition to that permit and is revoked when the permit is revoked.

H. No exemption shall be granted to 12VAC5-590-380, 12VAC5-590-388, or 12VAC5-590-395.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.10 § 1.16, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 19, Issue 24, eff. September 10, 2003; Volume 21, Issue 16, eff. May 18, 2005; Volume 33, Issue 3, eff. November 2, 2016; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-160. (Repealed.)

Historical Notes

Derived from VR355-18-003.11 § 1.17, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-170. (Repealed.)

Historical Notes

Derived from VR355-18-003.12 § 1.18, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-180. (Repealed.)

Historical Notes

Derived from VR355-18-003.13 § 1.19, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-190. Permits.

A. No owner or other person may cause or allow any waterworks to be operated in the Commonwealth without a written operation permit issued by the commissioner.

B. No owner or other person shall cause or allow the construction or change in the manner of transmission, storage, purification, treatment, or distribution of water (including the extension of water pipes for the distribution of water) at any waterworks in the Commonwealth without a written construction permit or a general permit for distribution mains from the commissioner.

C. Construction permits may not be required for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

D. Individual construction permits for distribution mains are not required for waterworks that obtain a general permit (see 12VAC5-590-300).

E. Conditions may be imposed on the issuance of any permit, and no waterworks may be constructed, modified, or operated in violation of these conditions.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.14 § 1.20, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-200. Procedure for obtaining a construction permit.

A. Construction permits are issued by the commissioner, but all requests for a construction permit are directed initially to the department. The procedure for obtaining a construction permit includes the following steps:

1. Owners shall notify the department of all proposed construction projects, except distribution main projects that are permitted under the provisions of a general permit for distribution mains (see 12VAC5-590-300), or when the project is for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

2. The submission of a Waterworks Permit Application to the department on a form approved by the department.

3. Based on the application received, the department shall notify the owner if a preliminary engineering conference is required. A preliminary engineering conference shall be required for projects proposed using alternative delivery methods authorized under § 2.2-4380 of the Code of Virginia. The preliminary engineering conference shall define the scope of the project, project phasing, milestones, and deliverables. An evaluation procedure shall be agreed upon and the conference shall be documented.

4. The submission of preliminary engineering or intermediate design reports if required by the department. The need for and scope of the reports shall be established during the preliminary engineering conference.

5. The submission of a waterworks business operation plan that demonstrates the waterworks TMF capabilities. The waterworks business operation plan consists of four primary components:

a. Waterworks information that includes ownership data, a waterworks facility description, operator requirements, staffing needs, and staff training.

b. Management information that identifies critical business practices necessary for effective management and operation of the waterworks. Management information includes the requirements essential for managing and operating the waterworks and defines the processes, methods, and tasks necessary for complying with this chapter.

c. Financial information that identifies projects, considering the waterworks revenues and cash flow, which will be sufficient for meeting the cost of operation and maintenance for at least five full years from the initiation of operations. Financial information also demonstrates the owner's ability to direct the waterworks' finances to support technical and managerial capacities and includes a self-assessment consisting of the following financial metrics: operating cash reserve, debt service coverage, emergency reserve, and revenue sufficiency.

d. Sustainability improvements that are identified throughout the waterworks business operation plan to address TMF aspects of the waterworks' business processes that need improvement.

6. The submission of plans, specifications, final design criteria, and other supporting design data. This submission may include manufacturers equipment data sheets, drawings, and specifications when the specific materials or equipment to be used in the project have been preselected by the owner with the engineer's concurrence.

B. Well site inspection. When, upon inspection by the department, one or more well locations are found suitable for well sites, tentative approval in writing shall be furnished to the owner authorizing the drilling of wells, the exact location where each well is to be drilled, and the well construction requirements. This tentative approval will become void after a 12-month period.

C. Plans for waterworks construction shall provide the following information, where applicable:

1. A general layout that includes:

a. Suitable title, to include name of waterworks;

b. Name of owner of waterworks;

c. Area or institution to be served;

d. Scale;

e. North Point;

f. Datum used;

g. Date, address, and name of owner's engineer;

h. Location and size of existing distribution system; and

i. Location and nature of existing waterworks structures and appurtenances affecting the proposed construction noted on one sheet.

2. Detailed plans that include, where applicable:

a. Stream crossings, providing profiles with elevations of the stream bed and the normal water level;

b. Profiles having a horizontal scale of not more than 100 feet to the inch and a vertical scale of not more than 10 feet to the inch, with both scales clearly indicated;

c. Location and size of property to be used for groundwater development with respect to known references such as street intersections or section lines;

d. Topography and arrangement of present or planned wells or structures, with contour intervals not greater than two feet;

e. Elevation of highest known flood, floor of structure, upper terminal of protective casing, and outside surrounding grade, using United States Coast and Geodetic Survey, United States Geological Survey, or equivalent elevations where applicable as a reference;

f. A completed Uniform Water Well Completion Report, Form GW-2, and schematic drawings of well construction, showing diameter and depth of drill holes, casing and liner diameters and depths, grouting depths, elevations and designation of geological formation, water levels, and other details to describe the proposed well completely;

g. If not previously submitted in the preliminary engineering report (PER): the location of all potential sources of pollution within 1,000 feet of drilled wells, 100 feet of treated water storage facilities, five miles upstream from surface water intakes, and the entire drainage area of springs;

h. Size, length, identity, and location of sewers, drains, distribution systems, and water treatment plant structures;

i. Schematic flow diagrams and hydraulic profiles showing the flow through various water treatment plant units;

j. Piping in sufficient detail to show flow through the water treatment plant, including waste lines;

k. Location of all chemical feeding equipment and points of chemical application;

l. All appurtenances, specific structures, equipment, water treatment plant waste disposal units, and point of discharge having any relationship to the plans for distribution system or waterworks structures;

m. Location of sanitary or other facilities such as lavatories, showers, toilets, and lockers;

n. Location, dimensions, and elevations of all proposed water treatment plant facilities; and

o. Adequate description of all features not otherwise covered by the specifications.

D. Specifications for waterworks construction improvements shall provide the following information, where applicable:

1. A program for keeping existing waterworks facilities in operation during construction of additional facilities so as to minimize interruption of service;

2. The laboratory facilities and equipment, as well as sampling taps and their locations;

3. The number and design of treatment process components;

4. The materials or proprietary equipment for sanitary or other facilities including any necessary backflow or backsiphonage backflow protection;

5. Workmanship; and

6. Other equipment.

E. Design criteria. A summary of complete design criteria shall be submitted for the proposed project, containing but not limited to the following information, where applicable:

1. Source water capacity;

2. Estimated water consumption, including average day, maximum day, and peak hour flows;

3. Number and type of proposed services;

4. Firefighting requirements;

5. Basin capacities;

6. Retention times;

7. Unit loadings;

8. Filter area and proposed filtration rate;

9. Backwash rate; and

10. Feeder capacities and ranges.

F. For community waterworks, a copy of the duly recorded (i) plat plan of the well lot or subdivision plan showing the well lot and (ii) dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks.

G. For noncommunity waterworks, the department may on a case-by-case basis require a copy of a duly recorded plat plan of a well lot and a dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks. In imposing such a requirement, the department shall take into consideration public health protection and the waterworks operations, treatment processes, and appurtenances.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.15 § 1.21, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-210. Requirements for the submission of engineering data.

A. In accordance with Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, all drawings, specifications, and engineer's reports submitted for approval shall be prepared by or under the supervision of a licensed professional engineer qualified to practice in Virginia, unless submitted under § 54.1-408 of the Code of Virginia for practice of land surveying in subdivisions.

B. The quantity, format, and method of submission shall meet the evaluation needs of the department and shall be consistent with the requirements in Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 of the Code of Virginia.

C. All reports, plans, and specifications shall be submitted to the department at least 60 days before the date upon which action by the department or commissioner is desired.

D. If the procedures for obtaining a construction permit in 12VAC5-590-200 are not complied with or if plans and specifications are found to be incomplete or inadequate for evaluation, then the plans and specifications will be returned to the submitting party. If revisions to the plans or specifications or both are necessitated, the owner and engineer who prepared them will be notified in writing of the necessary revisions. Revised plans, specifications, or both constitute a resubmission. Every effort will be made to complete the evaluation of these revisions promptly.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.16 § 1.22, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-220. Compliance with the Manual of Practice.

A. The design guidelines set forth in Part III Manual of Practice for Waterworks Design (12VAC5-590-640 et seq.) of this chapter (Manual of Practice) specify general criteria for the design and construction of waterworks. The commissioner may impose standards or requirements that are more stringent than those contained in the Manual of Practice when required to meet drinking water quality standards. Any special standards or requirements with a federal mandate shall take precedence over the criteria in the Manual of Practice and will be items that warrant careful consideration at the preliminary engineering conference, referenced in 12VAC5-590-200.

B. Designs submitted for waterworks must demonstrate that the waterworks will adequately safeguard public health. Submissions that are in substantial compliance with the Manual of Practice and any additional requirements of the commissioner, as noted in subsection A of this section, will be approved. Justification for a design may be required for those portions of the submitted design that differ from the criteria set forth in the Manual of Practice and any established by the commissioner. Deviations from mandatory criteria contained in the Manual of Practice shall be identified and justified. For each deviation, the commissioner may issue a design exception or require compliance with the criteria.

C. Final, complete, and detailed plans and specifications submitted in accordance with the provisions of 12VAC5-590-200 and 12VAC5-590-210 will be evaluated by the department as soon as practicable upon receipt. Plans and specifications will be approved if they demonstrate substantial compliance with the design criteria set forth in the Manual of Practice and any established by the commissioner and if the waterworks, as constructed or modified, will be able to function in compliance with Part II (12VAC5-590-340 et seq.) of this chapter.

D. Compliance with the Manual of Practice for transient noncommunity waterworks is allowed the following exceptions as long as the conditions in subsection E of this section are satisfied:

1. The design of a transient noncommunity waterworks is not required to satisfy the professional engineer licensure requirement of 12VAC5-590-210 under the following conditions:

a. The waterworks shall serve no more than 100 persons per day.

b. The waterworks shall consist only of one supply of source water, a pressure tank no greater than 250 gallon capacity, and a single service connection.

c. The single service connection shall be a building or structure of less than 5,000 square feet total floor space. The determination of square footage shall be calculated using the outside perimeter of the building or structure.

2. Although the owner of a transient noncommunity waterworks is required to use a water well systems provider certified by DPOR for drilling wells, the remainder of the waterworks facility construction at a transient noncommunity waterworks may be performed by a master plumber or a certified water well systems provider, as defined in § 54.1-1129.1 of the Code of Virginia.

E. The conditions for exceptions to the Manual of Practice for transient noncommunity waterworks specified in subsection D of this section are as follows:

1. The owner shall submit a signed and dated statement attached to the permit application, certifying that subsection D of this section will be satisfied.

2. The owner shall submit information related to the design, construction, and materials used as required by the department.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.17 § 1.23, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-230. Issuance of the construction permit.

A. Upon approval of the plans and specifications, the commissioner will issue a permit to the owner to construct or modify the waterworks in accordance with the approved plans and specifications.

B. The construction permit shall be valid for a period of five years. If construction has not begun within five years but were to proceed in the future, then the owner shall reapply for a new construction permit.

C. The construction permit may include conditions for securing equipment certifications and performance validations.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.18 § 1.24, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-240. Revisions of approved plans.

A. Any deviations from the approved plans and specifications affecting capacity, hydraulic conditions, operating units, the functioning of water treatment processes, or the quality of water to be delivered must be approved by the department before any of these deviations are implemented.

B. Revised plans and specifications shall be submitted in time to allow the evaluation and approval of these plans or specifications before any construction work that will be affected by these changes may begin.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.19 § 1.25, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-250. Statement required upon completion of construction.

A. Upon completion of the construction or modification of the waterworks, the owner shall submit to the department a statement signed by a licensed professional engineer stating that the construction work was completed in accordance with the approved plans and specifications, revised only in accordance with the provisions of 12VAC5-590-240. This statement is called a statement of completion of construction and shall be based upon inspections of the waterworks during and after construction or modifications. These inspections are to be adequate to ensure the truth of the statement of completion of construction.

B. The project documents may require a performance validation report to confirm the design, performance criteria, and appropriate emergency procedures for specific processes and equipment. The project documents may also require operator training. If these requirements are included in the project documents, then the statement of completion of construction shall also include the performance validation report and a certification of successful operator training, as applicable.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.20 § 1.26, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-260. Issuance of the operation permit.

A. Upon receipt of the statement of completion of construction, receipt of all required certifications and test results, inspection by the department to ensure that the project has been satisfactorily completed in accordance with the approved design documents, and verification that bacteriological test results comply with the requirements set forth in Part II of this chapter, as appropriate, the commissioner will issue an operation permit.

B. The owner shall not operate a waterworks without first having obtained an operation permit except as provided in 12VAC5-590-290.

C. The commissioner shall establish the type (community waterworks, NTNC, or TNC), classification, and permitted capacity of the waterworks and specify these on the operation permit. Conditions may be included with the permit for operator, monitoring, and reporting requirements.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.21 § 1.27, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-270. Start-up testing and inspections.

A. Before placing a new or modified waterworks into operation following construction, the owner shall test the water at the entry point to the distribution system in a manner acceptable to the department. The owner shall notify the department of the time and place of the tests. The owner shall send the results of the tests to the department.

B. The commissioner and department have a right to inspect any waterworks and to be present for any testing in accordance with Title 32.1 of the Code of Virginia.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.22 § 1.28, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-280. (Repealed.)

Historical Notes

Derived from VR355-18-003.23 § 1.29, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; repealed, Virginia Register Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-290. Issuance of a temporary operation permit.

A. Water treatment methods, processes, and equipment that are not covered by the design criteria of Part III (12VAC5-590-640 et seq.) of this chapter, and that in principle or application are new or nonconventional, are subject to a temporary permit application procedure instead of that set forth in 12VAC5-590-200. A temporary permit may be issued only after detailed evaluation of all engineering data and after a period of extensive monitoring of the water treatment plant performance.

B. The department encourages the development of any new or nonconventional methods, processes, and equipment that by virtue of treatability studies appear to have application for water treatment. However, these new or nonconventional developments shall have been thoroughly tested in a full-scale or representative pilot plant installation before these methods, processes, and equipment are approved and an operation permit issued. The results shall be submitted to the department. The testing required on new or nonconventional developments shall generally follow these guidelines:

1. All procedures used in validating the process shall be conducted under the supervision of (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's engineering staff, or (iii) a testing firm acceptable to the department;

2. Samples shall be collected and analyzed in a manner that shall demonstrate water treatment plant effectiveness and efficiency under adverse conditions and over extended periods of time in the area of the proposed installation;

3. The data shall be from the continuous operation of a full-scale or pilot plant treating the type of water to be handled;

4. Automatic indicating, recording, and totalizing equipment shall be provided, and the total flow shall be measured and recorded daily;

5. If the source water receives upstream discharges of treated industrial wastes or treated wastewater, then automatic indicating and recording equipment shall be provided for continuously monitoring the pH of the source and finished water in addition to the chlorine residual of the finished water;

6. The minimum sampling and analysis program will be established by the department in accordance with the process under investigation; and

7. All analyses shall utilize methods that are consistent with 12VAC5-590-440.

C. Detailed plans shall be submitted where possible showing how, in case of nonacceptance, the water treatment plant or water treatment methods, processes, and equipment will be converted to, or replaced with, a proven process. Also, financial resources must be assured to make the conversion (for example, funds placed in escrow or a bond posted.

D. After evaluation of the plans and testing data, the commissioner will issue a construction permit if the performance data verifies that the method, process, or equipment may efficiently produce water in accordance with the design specifications and the operation standards of Part II (12VAC5-590-340 et seq.) of this chapter.

E. Upon completion of construction or modification, a temporary permit for a definite period of time will be issued for the operation of the new or nonconventional methods, processes, and equipment. Not more than one temporary permit will be granted for a similar installation during the evaluation period. The temporary operation permit shall require that:

1. The evaluation period shall be a minimum of 12 months and no longer than 18 months; and

2. The holder of a temporary operation permit shall submit reports on operation during the evaluation period as required by the department. The reports shall be prepared by (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's operating or engineering staff, or (iii) a testing organization.

F. The commissioner may issue a temporary operation permit if the waterworks is not in compliance with this chapter and public health will not be jeopardized. The temporary permit may be issued for a period of time and subject to conditions as the commissioner may deem appropriate for the owner to achieve compliance with this chapter.

1. The commissioner may require, as a condition to a temporary operation permit, the submission of a waterworks business operation plan by new waterworks and existing waterworks that have demonstrated limited TMF capabilities or significant noncompliance with this chapter.

2. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590-200 A 5.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.24 § 1.30, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-300. Issuance of a general permit for construction of distribution mains.

A. Instead of obtaining a permit for each distribution main project, an owner may elect to obtain a general permit for the construction of distribution mains. These general permits are issued by the commissioner, but all requests for a general permit are directed initially to the department.

B. The following requirements shall be satisfied for the issuance of a general permit:

1. The owner shall develop, adopt, and have the department's approval of general specifications and plan details covering distribution main design and construction. The general specifications shall be at least as stringent as the requirements contained in this chapter.

2. The owner shall enter into a memorandum of understanding (MOU) with the department. The department will outline the waterworks-specific requirements, and the owner's method of compliance with the requirements. The waterworks-specific requirements include the following:

a. The maximum size of pipe to be covered by the general permit;

b. The means for modifying the department's approved general specifications and plan details;

c. The maintenance of engineering capabilities satisfactory to the department, either on-staff or through contractual arrangements;

d. The preparation of engineering plans and specifications for individual projects;

e. The maintenance of up-to-date distribution system maps and other appropriate records; and

f. The submission by the owner to the department of appropriate reports, including an annual report and summary, concerning all projects constructed under the terms of the MOU and information concerning changes to the distribution system.

C. Once the general specifications are approved and the MOU is agreed to by the department, the commissioner will issue a general permit for distribution mains with the MOU attached.

D. The general permit allows for the construction of distribution mains. The duration for the general permit is five years.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.25 § 1.31, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-310. Amendment or reissuance of operation permits.

A. The commissioner may amend or reissue an operation permit (i) when there is a change in the manner of storage, treatment, or supply of source water at the permitted location; (ii) when the existing permit is no longer valid; (iii) for any other cause incident to the protection of the public health; or (iv) for the supplying of potable water. A notice may be required to be given to the owner, and if one is required, a hearing held in accordance with the provisions of 12VAC5-590-115.

B. The commissioner may require submission of a waterworks business operation plan as a condition to amend or reissue an operation permit. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590-200 A 5.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.26 § 1.32, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-320. Revocation of an operation permit.

A. The commissioner may revoke an operation permit in accordance with the APA. Reasons for revocation include:

1. The waterworks can no longer be depended upon to furnish potable water;

2. The capacity of the waterworks is inadequate for the purpose of furnishing potable water;

3. The owner has failed to abide by an order issued by the commissioner;

4. The owner has abandoned the waterworks and discontinued supplying potable water; or

5. The owner has failed to pay the waterworks operation fee required by § 32.1-171.1 of the Code of Virginia.

B. Procedure for revocation of operation permit. When revoking an operation permit in accordance with subsection A of this section, the commissioner shall:

1. Send a written notice of intent to revoke by certified mail to the last known address of the owner. The notice shall state the reasons for the proposed revocation of the operation permit, the authority under which the commissioner proposes to act, and offer the opportunity for an administrative proceeding in accordance with 12VAC5-590-115.

2. Provide at least 30 days advance notice of the administrative proceeding.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.27 § 1.33, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

12VAC5-590-330. Monitoring, records, and reporting.

A. The commissioner or department may require the owner to install, use, and maintain monitoring equipment for the control and testing of water flowing through the water treatment plant to:

1. Identify and determine the cause of operational problems;

2. Determine the necessary corrective actions for these problems;

3. Ensure compliance with Part II of this chapter; and

4. Prepare the finished water for entry into the distribution system.

B. Sampling and testing shall be by methods approved by the department. Test results shall be recorded, compiled, and reported to the department in an acceptable manner and format.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.

Historical Notes

Derived from VR355-18-003.28 § 1.34, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 37, Issue 20, eff. June 23, 2021.

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