Virginia Law

Article 1. General Provisions.

As used in this chapter, unless the context requires a different meaning:

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

"Environment" means the natural, scenic, and historic attributes of the Commonwealth.

"Environmental justice" means the fair treatment and meaningful involvement of every person, regardless of race, color, national origin, faith, disability, or income, in the development, implementation, and enforcement of environmental laws, regulations, and policies.

"Special order" means an administrative order issued to any party that has a stated duration of not more than twelve months and that may include a civil penalty of not more than $10,000.

1992, c. 887; 1996, c. 1005; 2020, c. 454.

Whenever in this chapter the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Department may be sent by regular mail.

2011, c. 566.

A. There is hereby created a Department of Environmental Quality by the consolidation of the programs, functions, staff, facilities, assets and obligations of the following agencies: the State Water Control Board, the Department of Air Pollution Control, the Department of Waste Management, and the Council on the Environment. Wherever in this title and in the Code of Virginia reference is made to the Department of Air Pollution Control, the Department of Waste Management or the Council on the Environment, or any division thereof, it shall mean the Department of Environmental Quality.

B. It is the policy of the Department of Environmental Quality to protect and enhance the environment of Virginia in order to promote the health and well-being of the Commonwealth's citizens, residents, and visitors in accordance with applicable laws and regulations. The purposes of the Department are:

1. To assist in the effective implementation of the Constitution of Virginia by carrying out state policies aimed at conserving the Commonwealth's natural resources and protecting its atmosphere, land, and waters from pollution.

2. To address climate change by developing and implementing policy and regulatory approaches to reducing climate pollution and promoting climate resilience in the Commonwealth and by ensuring that climate impacts and climate resilience are taken into account across all programs and permitting processes.

3. To coordinate permit review and issuance procedures to protect all aspects of Virginia's environment.

4. To further environmental justice and enhance public participation in the regulatory and permitting processes.

5. To establish and effectively implement a pollution prevention program to reduce the impact of pollutants on Virginia's natural resources.

6. To establish procedures for, and undertake, long-range environmental program planning and policy analysis, including assessments of emerging environmental challenges.

7. To conduct comprehensive evaluations of the Commonwealth's environmental protection programs.

8. To develop uniform administrative systems to ensure coherent environmental policies.

9. To coordinate state reviews with federal agencies on environmental issues, such as environmental impact statements.

10. To promote environmental quality through public hearings and expeditious and comprehensive permitting, inspection, monitoring, and enforcement programs, and provide effective service delivery to the regulated community.

11. To advise the Governor and General Assembly, and, on request, assist other officers, employees, and public bodies of the Commonwealth, on matters relating to environmental quality and the effectiveness of actions and programs designed to enhance that quality.

12. To ensure that there is consistency in the enforcement of the laws, regulations, and policies as they apply to holders of permits or certificates issued by the Department, whether the owners or operators of such regulated facilities are public sector or private sector entities, including the development of electronic recordkeeping and document transmittal systems that encourage the use of electronic methods in performing the Department's business as a means of furthering both resource conservation and transaction efficiency.

13. To ensure the fair treatment and meaningful involvement of all people regardless of race, color, national origin, faith, disability, or income with respect to the administration of environmental laws, regulations, and policies.

C. Wherever the term is used in this chapter or in other statutory or regulatory provisions that the Department administers, (i) "certified mail" means electronically certified or postal certified mail, except that this provision shall apply only to the mailing of plan approvals, permits, or certificates issued under the provisions of this chapter and those of the Air Pollution Control Law (§ 10.1-1300 et seq.), the Virginia Waste Management Act (§ 10.1-1400 et seq.), and the State Water Control Law (§ 62.1-44.2 et seq.), and only where the recipient has notified the Department of his consent to receive plan approvals, permits, or certificates by electronic mail, and (ii) "mail" means electronic or postal delivery. Any statutory provisions requiring use of "certified mail" to transmit special orders or administrative orders pursuant to enforcement proceedings shall mean postal certified mail.

1992, c. 887; 1999, c. 207; 2012, cc. 803, 835; 2013, c. 348; 2020, cc. 454, 492.

A. As used in this section, "consolidated report" means the report submitted by the Department pursuant to this section in satisfaction of any requirements of §§ 10.1-1186.1, 10.1-1307, 10.1-1307.04, 10.1-1322, 10.1-1322.5, 10.1-1330, 10.1-1402.1, 10.1-1413.1, 10.1-1425.17, 62.1-44.15:6, 62.1-44.17:3, 62.1-44.34:21, 62.1-44.40, 62.1-69.35:2, 62.1-69.44, 62.1-223.3, and 62.1-256.2.

B. Notwithstanding any other provision of §§ 10.1-1186.1, 10.1-1307, 10.1-1307.04, 10.1-1322, 10.1-1322.5, 10.1-1330, 10.1-1402.1, 10.1-1413.1, 10.1-1425.17, 62.1-44.15:6, 62.1-44.17:3, 62.1-44.34:21, 62.1-44.40, 62.1-69.35:2, 62.1-69.44, 62.1-223.3, and 62.1-256.2, the Department shall be deemed to have satisfied the reporting requirements of those sections by submitting the consolidated report to the Governor and the General Assembly no later than October 1 of each year.

C. Each year, the consolidated report shall include the reports required pursuant to §§ 10.1-1186.1, 10.1-1307, 10.1-1322.5, 10.1-1330, 10.1-1413.1, 10.1-1425.17, 62.1-44.40, 62.1-69.35:2, 62.1-69.44, and 62.1-256.2.

D. In even-numbered years, the consolidated report shall also include the reports required pursuant to §§ 10.1-1322, 10.1-1402.1, and 62.1-44.15:6.

E. In odd-numbered years, the consolidated report shall also include the reports required pursuant to §§ 62.1-44.17:3 and 62.1-44.34:21.

F. Beginning in 2026 and every four years thereafter, the consolidated report shall also include the report required pursuant to § 10.1-1307.04.

G. Beginning in 2027 and every four years thereafter, the consolidated report shall also include the report required pursuant to § 62.1-223.3.

2024, c. 112.

The State Air Pollution Control Board, State Water Control Board, and Virginia Waste Management Board are continued and shall promote the environmental quality of the Commonwealth. All policies and regulations adopted or promulgated by the State Air Pollution Control Board, State Water Control Board, Virginia Waste Management Board, and the Council on the Environment and in effect on December 31, 1992, shall continue to be in effect until and unless superseded by new policies or regulations. Representatives of the three Boards shall meet jointly at least twice a year to receive public comment and deliberate about environmental issues of concern to the Commonwealth, including the development and implementation of regulations for multimedia permitting, increased efficiencies for the processing of permit applications and information requests, the enhancement of environmental protection, and opportunities for effective public participation.

1992, c. 887; 2008, cc. 276, 557.

A. For purposes of this section, "controversial permit" means an air or water permitting action for which a public hearing has been granted pursuant to the provisions of subsection C. "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.

B. At each regular meeting of the Air Pollution Control Board or the State Water Control Board, 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 board 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 shall be accepted at that time.

C. Any changes to regulations necessary to implement the provisions of this section 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.

1. 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.

2. Upon completion of the public comment period on a permit action, the Director 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.

3. The Director 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 or § 62.1-44.15:01.

4. In addition, the Director may, in his discretion, convene a public hearing on a permit action.

2022, c. 356.

Prior to assessing any civil penalty pursuant to § 10.1-1309, 10.1-1455, or 62.1-44.15 against any person for an alleged violation of a regulation adopted by a Board or permit issued by the Department, the Department shall inform such person in writing of the alleged violation, the potential penalties for such violation, and the actions necessary to achieve compliance and remediate the alleged violation. The Department may allow the person 30 days to take such actions and to provide any additional, relevant facts to the Department, including facts that demonstrate a good-faith attempt to achieve compliance. If compliance has not been achieved and the alleged violation remediated after the 30 days, the Department or the Board shall proceed in accordance with § 10.1-1309, 10.1-1455, or 62.1-44.15, as applicable.

For purposes of this section, "Board" means the State Air Pollution Control Board, the Virginia Waste Management Board, or the State Water Control Board.

2023, c. 718.

The Department shall be headed by a Director appointed by the Governor to serve at his pleasure. The Director shall be an experienced administrator with knowledge of environmental protection and government operation and shall have demonstrated expertise in organizational management and environmental science, environmental law, or environmental policy. The Director of the Department of Environmental Quality shall, under the direction and control of the Governor, exercise such power and perform such duties as are conferred or imposed upon him by law and shall perform such other duties as may be required of him by the Governor and the following Boards: the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board. The Director or his designee shall serve as executive officer of the aforementioned Boards.

All powers and duties conferred or imposed upon the Executive Director of the Department of Air Pollution Control, the Executive Director of the State Water Control Board, the Administrator of the Council on the Environment, and the Director of the Department of Waste Management are continued and conferred or imposed upon the Director of the Department of Environmental Quality or his designee. Wherever in this title and in the Code of Virginia reference is made to the head of a division, department or agency hereinafter transferred to this Department, it shall mean the Director of the Department of Environmental Quality.

1992, c. 887; 2008, cc. 276, 557.

The Department shall have the following general powers, any of which the Director may delegate as appropriate:

1. Employ such personnel as may be required to carry out the duties of the Department;

2. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including, but not limited to, contracts with the United States, other states, other state agencies and governmental subdivisions of the Commonwealth;

3. Accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient, or desirable;

4. Accept and administer services, property, gifts and other funds donated to the Department;

5. Implement all regulations as may be adopted by the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board;

6. Administer, under the direction of the Boards, funds appropriated to it for environmental programs and make contracts related thereto;

7. Advise and coordinate the responses of state agencies to notices of proceedings by the State Water Control Board to consider certifications of hydropower projects under 33 U.S.C. § 1341;

8. Advise interested agencies of the Commonwealth of pending proceedings when the Department of Environmental Quality intervenes directly on behalf of the Commonwealth in a Federal Energy Regulatory Commission proceeding or when the Department of Wildlife Resources intervenes in a Federal Energy Regulatory Commission proceeding to coordinate the provision of information and testimony for use in the proceedings;

9. Notwithstanding any other provision of law and to the extent consistent with federal requirements, following a proceeding as provided in § 2.2-4019, issue special orders to any person to comply with: (i) the provisions of any law administered by the Boards, the Director or the Department, (ii) any condition of a permit or a certification, (iii) any regulations of the Boards, or (iv) any case decision, as defined in § 2.2-4001, of the Boards or Director. The issuance of a special order shall be considered a case decision as defined in § 2.2-4001. The Director shall not delegate his authority to impose civil penalties in conjunction with issuance of special orders. For purposes of this subdivision, "Boards" means the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board; and

10. Perform all acts necessary or convenient to carry out the purposes of this chapter.

1992, c. 887; 1996, c. 1005; 2012, cc. 803, 835; 2020, c. 958.

A. As used in this section, "Enhanced Nutrient Removal Certainty Program" or "ENRC Program" means the same as that term is defined in § 62.1-44.19:13.

B. The General Assembly shall fund grants to finance the reasonable costs of design and installation of nutrient removal technology at the publicly owned treatment works designated as significant dischargers contained in subsection F or as eligible nonsignificant dischargers as defined in § 10.1-2117. When grant disbursements pursuant to this section reach a sum sufficient to fund the completion of the ENRC Program at all publicly owned treatment works, the House Committee on Agriculture, Chesapeake and Natural Resources, the House Committee on Appropriations, the Senate Committee on Agriculture, Conservation and Natural Resources, and the Senate Committee on Finance and Appropriations shall review (i) the future funding needs to meet the purposes of the Water Quality Improvement Act, (ii) the most recent annual needs estimate required by § 10.1-2134.1, and (iii) the appropriate funding mechanism for such needs.

C. The disbursement of grants for the design and installation of nutrient removal technology at those publicly owned treatment works included in subsection F and eligible nonsignificant dischargers shall be made monthly based on a requisition submitted by the grant recipient in the form requested by the Department. Each requisition shall include written certification that the applicable local share of the cost of nutrient removal technology for that portion of the project covered by such requisition has been incurred or expended. Except as may otherwise be approved by the Department, disbursements shall not exceed 95 percent of the total grant amount until satisfactory completion of the project. The distribution of the grants shall be effected by one of the following methods:

1. In payments to be paid by the State Treasurer out of funds appropriated to the Water Quality Improvement Fund pursuant to § 10.1-2131;

2. Over a specified time through a contractual agreement entered into by the Treasury Board and approved by the Governor, on behalf of the Commonwealth, and the locality or public service authority undertaking the design and installation of nutrient removal technology, such payments to be paid by the State Treasurer out of funds appropriated to the Treasury Board; or

3. In payments to be paid by the State Treasurer upon request of the Director out of proceeds from bonds issued by the Virginia Public Building Authority, in consultation with the Department, pursuant to §§ 2.2-2261, 2.2-2263, and 2.2-2264, including the Commonwealth's share of the interest costs expended by the locality or regional authority for financing such project during the period from 50 percent completion of construction to final completion of construction.

D. The General Assembly has the sole authority to determine whether disbursement shall be made pursuant to subdivision C 1, 2, or 3, or a combination thereof, provided that a disbursement shall be made pursuant to subdivision C 3 only upon a certification by the Department that project grant reimbursements for the fiscal year will exceed the available funds in the Water Quality Improvement Fund.

E. Exclusive of any deposits made pursuant to § 10.1-2128, the grants awarded pursuant to this section shall include such appropriations as provided from time to time in the appropriation act or any amendments thereto.

F. The disbursement of grants to finance the costs of design and installation of nutrient removal technology, including eligible design and installation costs for implementation of the ENRC Program, at the following listed publicly owned treatment works and other eligible nonsignificant dischargers shall be provided pursuant to the distribution methodology included in § 10.1-2131. The notation "WIP3-N" or "WIP3-P" indicates that a facility is subject to additional requirements for total nitrogen or total phosphorus, respectively, under the ENRC Program. In no case shall any publicly owned treatment works receive a grant of less than 35 percent of the costs of the design and installation of nutrient removal technology.

G. To the extent that any publicly owned treatment works receives less than the grant specified pursuant to § 10.1-2131, any year-end revenue surplus or unappropriated balances deposited in the Water Quality Improvement Fund, as required by § 10.1-2128, shall be prioritized in order to augment the funding of those projects for which grants have been prorated. Any additional reimbursements to these prorated projects shall not exceed the total reimbursement amount due pursuant to the formula established in subsection E of § 10.1-2131.

H. Notwithstanding the provisions of subsection B of § 10.1-2131, the Director shall not be required to enter into a grant agreement with a facility designated as a significant discharger or eligible nonsignificant discharger if the Director determines that the use of nutrient credits in accordance with the Chesapeake Bay Watershed Nutrient Credit Exchange Program (§ 62.1-44.19:12 et seq.) would be significantly more cost-effective than the installation of nutrient controls for the facility in question.

2007, cc. 851, 900; 2008, c. 572; 2021, Sp. Sess. I, cc. 363, 364; 2022, cc. 127, 128.

The Department of Environmental Quality shall publish in March of each year the information reported by industries pursuant to 42 U.S.C. § 11023 in its document known as the "Virginia Toxic Release Inventory." The report shall be (i) organized by chemical, facility and facility location, and standard industrial classification code, and (ii) distributed to newspapers of general circulation and television and radio stations. The report shall include the information collected for the most recent calendar year for which data is available prior to the March publication date.

1997, c. 155.

A. The Department shall compile and maintain a Hazardous Waste Site Inventory (the Inventory) comprising a current listing of sites permitted by or in corrective action under the Department at which the disposal of hazardous waste, as defined in § 10.1-1400 and not otherwise excluded from regulation as hazardous waste, has occurred. The Inventory shall contain specific information about each listed site, including (i) the location of the site, (ii) the nature and known characteristics of the wastes disposed of at the site, and (iii) the status of any remedial or corrective action undertaken or planned for the site. The Department shall only disclose in the Inventory information that is not otherwise subject to an exemption from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

B. The Department shall publish the Inventory by July 1, 2021, update it at least annually thereafter, and post it on the Department's website.

2020, c. 491.

A. As used in this section, "supplemental environmental project" means an environmentally beneficial project undertaken as partial settlement of a civil enforcement action and not otherwise required by law.

B. The State Air Pollution Control Board, the State Water Control Board, the Virginia Waste Management Board, or the Director acting on behalf of one of these boards or under his own authority in issuing any administrative order, or any court of competent jurisdiction as provided for under this Code, may, in its or his discretion and with the consent of the person subject to the order, provide for such person to undertake one or more supplemental environmental projects. The project shall have a reasonable geographic nexus to the violation or, if no such project is available, shall advance at least one of the declared objectives of the environmental law or regulation that is the basis of the enforcement action. Performance of such projects shall be enforceable in the same manner as any other provision of the order.

C. The following categories of projects may qualify as supplemental environmental projects, provided the project otherwise meets the requirements of this section: public health, pollution prevention, pollution reduction, environmental restoration and protection, environmental compliance promotion, and emergency planning and preparedness. In determining the appropriateness and value of a supplemental environmental project, the following factors shall be considered by the enforcement authority: net project costs, benefits to the public or the environment, innovation, impact on minority or low income populations, multimedia impact, and pollution prevention. The costs of those portions of a supplemental environmental project that are funded by state or federal low-interest loans, contracts or grants shall be deducted from the net project cost in evaluating the project. In each case in which a supplemental environmental project is included as part of a settlement, an explanation of the project with any appropriate supporting documentation shall be included as part of the case file.

D. Nothing in this section shall require the disclosure of documents exempt from disclosure pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

E. Any decision whether or not to agree to a supplemental environmental project is within the sole discretion of the applicable board, official or court and shall not be subject to appeal.

F. Nothing in this section shall be interpreted or applied in a manner inconsistent with applicable federal law or any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.

1997, cc. 623, 628.

A. The Department and the State Air Pollution Control Board have the authority to consider the cumulative impact of new and proposed electric generating facilities within the Commonwealth on attainment of the national ambient air quality standards.

B. The Department shall enter into a memorandum of agreement with the State Corporation Commission regarding the coordination of reviews of the environmental impacts of proposed electric generating facilities that must obtain certificates from the State Corporation Commission. When considering the environmental impact of any renewable energy (defined in § 56-576) electrical utility facility, the Department shall consult with interested agencies of the Commonwealth that have expertise in natural resource management. The Department shall submit recommendations to the State Corporation Commission that take into account the information and comments submitted by such natural resource agencies concerning the potential environmental impacts of the proposed electric generating facility. The Department's recommendations shall include: (i) specific mitigation measures considered necessary to minimize adverse environmental impacts; (ii) any additional site-specific studies considered to be necessary; and (iii) the scope and duration of any such studies. Nothing in this subsection shall alter or affect the Rules of Practice and Procedure of the State Corporation Commission.

C. Prior to the close of the Commission's record on an application for certification of an electric generating facility pursuant to § 56-580, the Department shall provide to the State Corporation Commission a list of all environmental permits and approvals that are required for the proposed electric generating facility and shall specify any environmental issues, identified during the review process, that are not governed by those permits or approvals or are not within the authority of, and not considered by, the Department or other participating governmental entity in issuing such permits or approvals. The Department may recommend to the Commission that the Commission's record remain open pending completion of any required environmental review, approval or permit proceeding. All agencies of the Commonwealth shall provide assistance to the Department, as requested by the Director, in preparing the information required by this subsection.

2002, c. 483; 2008, c. 528.

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 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 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 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.

1997, cc. 645, 667; 2022, c. 356.

A. The Department, with assistance from the Ombudsman for Tribal Consultation designated pursuant to § 2.2-401.01, shall develop policies and procedures, to the extent permitted by law, to ensure an opportunity for meaningful and appropriate written consultation with potentially impacted federally recognized Tribal Nations in the Commonwealth regarding certain major actions or permits issued by the Department. The Department shall designate an agency official to evaluate the adequacy of consultation and ensure that agency consultation practices are consistent. Actions and permits appropriate for consultation shall include the projects and actions set forth in subsection B. The policies shall define an appropriate means of notifying federally recognized Tribal Nations in the Commonwealth based on tribal preferences, ensure that sufficient information and time is provided for the federally recognized Tribal Nations in the Commonwealth to fully engage in consultation regarding the proposed action, and establish procedures for the Department to provide feedback to the federally recognized Tribal Nations in the Commonwealth to explain how their input was considered. Should feedback from the federally recognized Tribal Nations in the Commonwealth not be received by the deadline established in the Department's policies and procedures, the consultation provisions of this section shall be deemed fulfilled. For environmental impact reports for major state projects prepared pursuant to § 10.1-1188, the policies and procedures shall require the state project proponent to perform the required consultation.

B. The following actions and projects in a locality identified by the Ombudsman for Tribal Consultation pursuant to subdivision B 2 of § 2.2-401.01 are subject to consultation as set forth in subsection A: (i) environmental impact reports for major state projects prepared pursuant to § 10.1-1188, (ii) State Corporation Commission project reports prepared pursuant to § 56-46.1 and 20VAC5-302-25, (iii) environmental impact assessments for oil or gas well drilling operations in Tidewater Virginia prepared pursuant to 9VAC15-20, (iv) federal consistency determinations prepared pursuant to § 307 of the federal Coastal Zone Management Act of 1972 (16 U.S.C. § 1451 et seq.), and (v) ground water withdrawal permits for ground water withdrawals greater than 365 million gallons per year issued pursuant to § 62.1-266.

2024, c. 830.

In addition to the authority of the State Air Pollution Control Board, the State Water Control Board, the Virginia Waste Management Board and the Director to bring actions in the courts of the Commonwealth to enforce any law, regulation, case decision or condition of a permit or certification, the Attorney General is hereby authorized on behalf of such boards or the Director to seek to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure in any action then pending in a federal court in order to resolve a dispute already being litigated in that court by the United States through the Environmental Protection Agency.

2001, cc. 166, 174.

Expired.

The Department may participate in any carbon market for which submerged aquatic vegetation restoration qualifies as an activity that generates carbon offset credits. Any revenue resulting from the sale of such credits shall be used to implement additional submerged aquatic vegetation monitoring and research or to cover any administrative costs of participation in the credit market. The Department may enter into agreements necessary to effect such participation, including with private entities for assistance with registration and sale of offset credits. The Department shall hold exclusive title to such credits until sold.

2020, c. 810.

The conditions, requirements, provisions, contents, powers and duties of any section, article, or chapter of the Code in effect on March 31, 1993, relating to agencies consolidated in this chapter shall apply to the Department of Environmental Quality until superseded by new legislation.

1992, c. 887.