Code of Virginia

Creating a Report: Check the sections you'd like to appear in the report, then use the "Create Report" button at the bottom of the page to generate your report. Once the report is generated you'll then have the option to download it as a pdf, print or email the report.

Code of Virginia
Title 32.1. Health
Chapter 6. Environmental Health Services
1/25/2021

Chapter 6. Environmental Health Services.

Article 1. Sewage Disposal.

§ 32.1-163. Definitions.

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

"Alternative discharging sewage system" means any device or system which results in a point source discharge of treated sewage for which the Board may issue a permit authorizing construction and operation when such system is regulated by the State Water Control Board pursuant to a general Virginia Pollutant Discharge Elimination System permit issued for an individual single family dwelling with flows less than or equal to 1,000 gallons per day.

"Alternative onsite sewage system" or "alternative onsite system" means a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge.

"Betterment loan" means a loan to be provided by private lenders either directly or through a state agency, authority or instrumentality or a locality or local or regional authority serving as a conduit lender, to repair, replace, or upgrade an onsite sewage system or an alternative discharging sewage system for the purpose of reducing threats to public health and ground and surface waters, which loan is secured by a lien with a priority equivalent to the priority of a lien securing an assessment for local improvements under § 15.2-2411.

"Conduit lender" means a state agency, authority or instrumentality or a locality, local or regional authority or an instrumentality thereof serving as a conduit lender of betterment loans.

"Conventional onsite sewage system" means a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield.

"Licensed onsite soil evaluator" means a person who is licensed under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as an onsite soil evaluator. A licensed onsite soil evaluator is authorized to evaluate soils and soil properties in relationship to the effects of these properties on the use and management of these soils as the locations for onsite sewage systems.

"Maintenance" means, unless otherwise provided in local ordinance, (i) performing adjustments to equipment and controls or (ii) in-kind replacement of normal wear and tear parts that do not require a construction permit for adjustment or replacement of the component such as light bulbs, fuses, filters, pumps, motors, sewer lines, conveyance lines, distribution boxes, header lines, or other like components. "Maintenance" includes pumping the tanks or cleaning the building sewer on a periodic basis. Notwithstanding any local ordinance, "maintenance" does not include replacement of tanks, drainfield piping, subsurface drainfields, or work requiring a construction permit and installer. Unless otherwise prohibited by local ordinance, a conventional onsite sewage system installer or an alternative onsite sewage system installer may perform maintenance work limited to in-kind replacement of light bulbs, fuses, filters, pumps, sewer lines, conveyance lines, distribution boxes, and header lines.

"Operate" means the act of making a decision on one's own volition (i) to place into or take out of service a unit process or unit processes or (ii) to make or cause adjustments in the operation of a unit process at a treatment works.

"Operation" means the biological, chemical, and mechanical processes of transforming sewage or wastewater to compounds or elements and water that no longer possess an adverse environmental or health impact.

"Operator" means any individual employed or contracted by any owner, who is licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as being qualified to operate, monitor, and maintain an alternative onsite sewage system.

"Owner" means the Commonwealth or any of its political subdivisions, including sanitary districts, sanitation district commissions and authorities, any individual, any group of individuals acting individually or as a group, or any public or private institution, corporation, company, partnership, firm or association which owns or proposes to own a sewerage system or treatment works.

"Regulations" means the Sewage Handling and Disposal Regulations, heretofore or hereafter enacted or adopted by the State Board of Health.

"Review Board" means the State Sewage Handling and Disposal Appeals Review Board.

"Sewage" means water-carried and non-water-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.

"Sewerage system" means pipelines or conduits, pumping stations and force mains and all other construction, devices and appliances appurtenant thereto, used for the collection and conveyance of sewage to a treatment works or point of ultimate disposal.

"Subsurface drainfield" means a system installed within the soil and designed to accommodate treated sewage from a treatment works.

"Transportation" means the vehicular conveyance of sewage.

"Treatment works" means any device or system used in the storage, treatment, disposal or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power and other equipment and appurtenances, septic tanks, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment.

Code 1950, § 32-9; 1954, c. 646; 1964, c. 436; 1970, c. 645; 1972, c. 775; 1979, c. 711; 1984, c. 457; 1990, cc. 342, 861, 869; 1994, c. 747; 2007, cc. 892, 924; 2009, c. 829; 2018, c. 830.

§ 32.1-163.1. Personal liability of sanitarians defined.

A sanitarian while acting within the scope of his employment in approving or denying applications for permits for onsite sewage disposal systems or while performing checks of or reviewing and approving field evaluations completed by licensed onsite soil evaluators shall be subject to personal liability only for his gross negligence or intentional misconduct.

1986, c. 331; 1994, c. 747; 2016, c. 90.

§ 32.1-163.2. Long range plan for onsite sewage.

In addition to the powers and duties provided in § 32.1-164, the Board of Health shall develop and revise as may be necessary a five-year plan for the handling and disposal of onsite sewage. Such plan shall include (i) the number of applications for onsite sewage permits per year; (ii) the number of households or facilities utilizing onsite sewage systems per year; (iii) the volume of onsite sewage to be disposed per year; (iv) the available and needed capacity in the Commonwealth for environmentally sound methods of disposal of septage in sewage treatment plants, other approved facilities and by land application per year; (v) descriptions of technology for alternative systems including the types of soils and conditions recommended as appropriate for such alternative systems; and (vi) recommendations for changes in the laws or regulations pertaining to onsite sewage and the system of permitting onsite sewage systems. The Board shall also report every five years to the governor and the General Assembly, beginning in 1992, on the status of onsite sewage handling and disposal in Virginia and the progress in implementing its long range plan.

1987, c. 223.

§ 32.1-163.3. Identities of persons making certain reports to remain confidential.

The identity of any person making a report of an alleged violation of any provision of this article or any regulation of the Board of Health relating to sewage disposal shall be confidential. However, the identity of such person may be disclosed (i) to the Commissioner, the members of the Board and personnel of the Department in the performance of their duties; (ii) when the identity is included in materials which are the subject of a request for information pursuant to the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2; (iii) when the matter reported is the subject of a hearing conducted by the State Health Department Sewage Handling and Disposal Appeal Review Board; or (iv) when the matter reported is the subject of litigation.

1990, c. 468.

§ 32.1-163.4. Procedures for application backlogs; individuals approved to conduct evaluations for septic system or other onsite sewage system permit applications.

A. In any case where the local or district health department experiences a septic system or other onsite sewage system permit backlog of 15 working days from the application filing date, the Commissioner shall contract with licensed onsite soil evaluators for the field evaluation of the backlogged application sites. The Department shall review these evaluations and may approve the permit applications upon finding that the evaluations are in compliance with the Board's regulations implementing this chapter. The Department shall not be required to do a field check of the evaluation prior to issuing the permit; however, the Department may conduct such field analyses as deemed necessary to protect the integrity of the Commonwealth's environment.

B. The Board, Commissioner, and Department of Health shall accept private evaluations for septic system or other onsite sewage system permit applications only from licensed onsite soil evaluators.

C. The Board's regulations shall include a definition of backlog providing a set number or a percent of the received applications.

1994, c. 747; 2016, c. 90.

§ 32.1-163.5. Onsite sewage evaluations.

A. Notwithstanding other provisions of this chapter, for purposes of subdivision review, permit approval, and issuance of letters for residential development, the Board, Commissioner, and Department of Health shall accept private site evaluations and designs, in compliance with the Board's regulations for septic systems and other onsite sewage systems, designed and certified by a licensed professional engineer, in consultation with a licensed onsite soil evaluator, or by a licensed onsite soil evaluator. The evaluations and designs included within such submissions shall be certified as complying with the Board's regulations implementing this chapter.

B. The Department shall not be required to perform a field check of private evaluations and designs prior to issuing the requested letter, permit or approval; however, the Department may conduct such review of the work and field analysis as deemed necessary to protect the public health and integrity of the Commonwealth's environment. Within 15 working days from the date of written submission of a request for approval of a site evaluation and design for a single lot construction permit, and within 60 days from the date of written submission of a request for approval of a site evaluation and design for multiple lot certification letters or subdivision review, the Department shall (i) issue the requested letter, permit or approval or (ii) set forth in writing the specific reasons for denial. If the Department fails to take action to approve or disapprove the designs, evaluations, or subdivision reviews within the time specified herein, the designs, evaluations or subdivision reviews shall be deemed approved and the appropriate letter, permit or approval shall be issued. Notwithstanding any other provision of law or the provisions of any local ordinance, counties, cities and towns shall comply with the time limits set forth in this subsection.

C. Nothing in this section shall authorize anyone other than an individual licensed as a professional engineer pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 to engage in the practice of engineering.

D. The provisions of this section shall not apply to any locality that has entered into a contract with the Board of Health in accordance with Chapter 678 of the 1994 Acts of Assembly nor to a proprietary, pre-engineered septic system deemed by the Department to comply with the Board's regulations.

1999, c. 1038; 2001, c. 337; 2016, c. 90.

§ 32.1-163.6. Professional engineering of onsite treatment works.

A. Notwithstanding other provisions of this chapter, for purposes of permit approval, the Board, Commissioner, and Department of Health shall accept treatment works designs from individuals licensed as professional engineers pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1. The designs shall (i) be compliant with standard engineering practice and performance requirements established by the Board and those horizontal setback requirements necessary to protect the public health and the environment, (ii) reflect that degree of skill and care ordinarily exercised by licensed members of the engineering profession practicing at the time of performance, (iii) be appropriate for the particular soil characteristics of the site, and (iv) ensure that the treatment works will meet or exceed the discharge, effluent, and surface and ground water quality standards for systems otherwise permitted pursuant to the regulations implementing this chapter.

B. The Department may conduct such review of the work and field analysis as deemed necessary to protect the public health and integrity of the Commonwealth's environment.

C. Within 21 calendar days from the date of application for treatment works sized at 1,000 gallons per day or smaller, and within 60 calendar days from the date of application for treatment works sized at more than 1,000 gallons per day, the Department shall (i) issue the requested approval, or (ii) set forth in writing the specific reasons for denial.

D. The Department shall establish an engineering design review panel to review the Department's decision to disapprove an onsite sewage system design. The Commissioner shall appoint four individuals licensed as professional engineers pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 with expertise in onsite sewage systems to serve on the engineering design review panel with (i) one representing the Department of Health, (ii) one representing the Department of Environmental Quality, (iii) one representing the Virginia Society of Professional Engineers, and (iv) one representing the American Council of Engineering Companies of Virginia. If a state agency is unable to provide a representative in accordance with this subsection, the Commissioner shall appoint another individual licensed as a professional engineer pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 with expertise in onsite sewage systems. The members of the design review panel shall appoint a member to serve as Chairman. The design review panel shall be designated a subordinate, as defined in § 2.2-4001, and shall meet as necessary.

E. When the Department denies an application pursuant to subsection D, the owner may appeal that decision in accordance with § 32.1-164.1. Alternatively, the owner, or the professional engineer responsible for an onsite sewage system design with the owner's written consent, may request an informal fact-finding conference before the engineering design review panel established in subsection D. The request must (i) be in writing, (ii) be received by the Commissioner within 30 days of the professional engineer's receipt of the Department's denial, and (iii) cite the reason or reasons for the request. The informal fact-finding conference shall be held within 45 calendar days of the request. The proceedings of the engineering design review panel shall be governed by the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). Within 30 days following its receipt of the engineering review panel's written recommendations, the Department shall consider the recommendations of the engineering design review panel and approve the application or re-affirm its denial.

F. When the Department denies an application following review by the engineering design review panel, the owner may appeal that decision in accordance with § 32.1-164.1.

G. This section shall not be construed to require an owner to seek review by the engineering design review panel before appealing a permit denial pursuant to § 32.1-164.1.

H. This section shall not be construed to prohibit any locality from adopting or enforcing any ordinance duly enacted pursuant to Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2.

I. All treatment works designs permitted pursuant to this section shall comply with operation, maintenance, and monitoring requirements as set forth in regulations implementing this chapter.

2008, c. 515; 2009, cc. 97, 220, 296.

§ 32.1-164. Powers and duties of Board; regulations; fees; onsite soil evaluators; letters in lieu of permits; inspections; civil penalties.

A. The Board shall have supervision and control over the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems, and treatment works as they affect the public health and welfare. The Board shall also have supervision and control over the maintenance, inspection, and reuse of alternative onsite sewage systems as they affect the public health and welfare. In discharging the responsibility to supervise and control the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall exercise due diligence to protect the quality of both surface water and ground water. Upon the final adoption of a general Virginia Pollutant Discharge Elimination permit by the State Water Control Board, the Board of Health shall assume the responsibility for permitting alternative discharging sewage systems as defined in § 32.1-163. All such permits shall comply with the applicable regulations of the State Water Control Board and be registered with the State Water Control Board.

In the exercise of its duty to supervise and control the treatment and disposal of sewage, the Board shall require and the Department shall conduct regular inspections of alternative discharging sewage systems. The Board shall also establish requirements for maintenance contracts for alternative discharging sewage systems. The Board may require, as a condition for issuing a permit to operate an alternative discharging sewage system, that the applicant present an executed maintenance contract. Such contract shall be maintained for the life of any general Virginia Pollutant Discharge Elimination System permit issued by the State Water Control Board.

B. The regulations of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems and the maintenance, inspection, and reuse of alternative onsite sewage systems. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation:

1. A requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification or operation of a sewerage system or treatment works except in those instances where a permit is required pursuant to Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1.

2. Criteria for the granting or denial of such permits.

3. Standards for the design, construction, installation, modification and operation of sewerage systems and treatment works for permits issued by the Commissioner.

4. Standards governing disposal of sewage on or in soils.

5. Standards specifying the minimum distance between sewerage systems or treatment works and:

(a) Public and private wells supplying water for human consumption,

(b) Lakes and other impounded waters,

(c) Streams and rivers,

(d) Shellfish waters,

(e) Ground waters,

(f) Areas and places of human habitation,

(g) Property lines.

6. Standards as to the adequacy of an approved water supply.

7. Standards governing the transportation of sewage.

8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth.

9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works.

10. Criteria for determining the demonstrated ability of alternative onsite systems, which are not permitted through the then current sewage handling and disposal regulations, to treat and dispose of sewage as effectively as approved methods.

11. Standards for inspections of and requirements for maintenance contracts for alternative discharging sewage systems.

12. Notwithstanding the provisions of subdivision 1 above and Chapter 3.1 of Title 62.1, a requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification, or operation of an alternative discharging sewage system as defined in § 32.1-163.

13. Criteria for granting, denying, and revoking of permits for alternative discharging sewage systems.

14. Procedures for issuing letters recognizing onsite sewage sites in lieu of issuing onsite sewage system permits.

15. Performance requirements for nitrogen discharged from alternative onsite sewage systems that protect public health and ground and surface water quality.

C. A fee of $75 shall be charged for filing an application for an onsite sewage system or an alternative discharging sewage system permit with the Department. Funds received in payment of such charges shall be transmitted to the Comptroller for deposit. The funds from the fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this title. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.

The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services or when the application is for a pit privy or the repair of a failing onsite sewage system. If the Department denies the permit for land on which the applicant seeks to construct his principal place of residence, then such fee shall be refunded to the applicant.

From such funds as are appropriated to the Department from the special fund, the Board shall apportion a share to local or district health departments to be allocated in the same ratios as provided for the operation of such health departments pursuant to § 32.1-31. Such funds shall be transmitted to the local or district health departments on a quarterly basis.

D. In addition to factors related to the Board's responsibilities for the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall, in establishing standards, give due consideration to economic costs of such standards in accordance with the applicable provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

E. Further a fee of $75 shall be charged for such installation and monitoring inspections of alternative discharging sewage systems as may be required by the Board. The funds received in payment of such fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this section. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to § 32.1-164.1:01.

The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services.

F. Any owner who violates any provision of this section or any regulation of the Board of Health or the State Water Control Board relating to alternative discharging sewage systems or who fails to comply with any order of the Board of Health or any special final order of the State Water Control Board shall be subject to the penalties provided in §§ 32.1-27 and 62.1-44.32.

In the event that a county, city, or town, or its agent, is the owner, the county, city, or town, or its agent may initiate a civil action against any user or users of an alternative discharging sewage system to recover that portion of any civil penalty imposed against the owner which directly resulted from violations by the user or users of any applicable federal, state, or local laws, regulations, or ordinances.

G. The Board shall establish and implement procedures for issuance of letters recognizing the appropriateness of onsite sewage site conditions in lieu of issuing onsite sewage system permits. The Board may require that a survey plat be included with an application for such letter. Such letters shall state, in language determined by the Office of the Attorney General and approved by the Board, the appropriateness of the soil for an onsite sewage system; no system design shall be required for issuance of such letter. The letter may be recorded in the land records of the clerk of the circuit court in the jurisdiction where all or part of the site or proposed site of the onsite sewage system is to be located so as to be a binding notice to the public, including subsequent purchases of the land in question. Upon the sale or transfer of the land which is the subject of any letter, the letter shall be transferred with the title to the property. A permit shall be issued on the basis of such letter unless, from the date of the letter's issuance, there has been a substantial, intervening change in the soil or site conditions where the onsite sewage system is to be located. The Board, Commissioner, and the Department shall accept evaluations from licensed onsite soil evaluators for the issuance of such letters, if they are produced in accordance with the Board's established procedures for issuance of letters. The Department shall issue such letters within 20 working days of the application filing date when evaluations produced by licensed onsite soil evaluators are submitted as supporting documentation. The Department shall not be required to do a field check of the evaluation prior to issuing such a letter or a permit based on such letter; however, the Department may conduct such field analyses as deemed necessary to protect the integrity of the Commonwealth's environment. Applicants for such letters in lieu of onsite sewage system permits shall pay the fee established by the Board for the letters' issuance and, upon application for an onsite sewage system permit, shall pay the permit application fee.

H. The Board shall establish a program for the operation and maintenance of alternative onsite systems. The program shall require:

1. The owner of an alternative onsite sewage system, as defined in § 32.1-163, to have that system operated by a licensed operator, as defined in § 32.1-163, and visited by the operator as specified in the operation permit;

2. The licensed operator to provide a report on the results of the site visit utilizing the web-based system required by this subsection. A fee of $1 shall be paid by the licensed operator at the time the report is filed. Such fees shall be credited to the Onsite Operation and Maintenance Fund established pursuant to § 32.1-164.8;

3. A statewide web-based reporting system to track the operation, monitoring, and maintenance requirements of each system, including its components. The system shall have the capability for pre-notification of operation, maintenance, or monitoring to the operator or owner. Licensed operators shall be required to enter their reports onto the system. The Department of Health shall utilize the system to provide for compliance monitoring of operation and maintenance requirements throughout the state. The Commissioner shall consider readily available commercial systems currently utilized within the Commonwealth; and

4. Any additional requirements deemed necessary by the Board.

I. The Board shall promulgate regulations governing the requirements for maintaining alternative onsite sewage systems.

J. The Board shall establish a uniform schedule of civil penalties for violations of regulations promulgated pursuant to subsection B that are not remedied within 30 days after service of notice from the Department. Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to § 32.1-248.3.

This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000. Penalties shall not apply to unoccupied structures which do not contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases. The Department may pursue other remedies as provided by law; however, designation of a particular violation for a civil penalty pursuant to this section shall be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.

The Department may issue a civil summons ticket as provided by law for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the Department prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged.

If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court with jurisdiction in the same manner and with the same right of appeal as provided for by law. In any trial for a scheduled violation, the Department shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding.

This section shall not be interpreted to allow the imposition of civil penalties for activities related to land development.

K. The Department shall establish procedures for requiring a survey plat as part of an application for a permit or letter for any onsite sewage or alternative discharging sewage system, and for granting waivers for such requirements. In all cases, it shall be the landowner's responsibility to ensure that the system is properly located as permitted.

Code 1950, § 32-9; 1954, c. 646; 1964, c. 436; 1970, c. 645; 1972, c. 775; 1979, c. 711; 1986, c. 401; 1988, c. 203; 1990, cc. 438, 861, 869; 1994, c. 747; 1999, c. 871; 2003, c. 614; 2007, cc. 514, 892, 924; 2009, cc. 695, 747.

§ 32.1-164.1. Appeals from denials of septic tank permits; inspections.

A. Whenever administrative action is taken to deny a septic tank permit or to grant a septic tank permit with conditions or to refuse to issue, or grant with conditions, a letter recognizing the appropriateness of onsite sewage site conditions in lieu of issuing an onsite sewage system permit, the applicant shall be advised in writing of the administrative remedies that are available to obtain a reversal of the denial or refusal or a modification or elimination of the conditions, or, if no further administrative remedies are available, of the right of appeal provided for hereinafter. After exhausting his administrative remedies, as set forth in § 32.1-164.1:1 et seq., any person aggrieved by a case decision of the Review Board shall have the right to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

The decision may be recorded in the land records of the clerk of the circuit court in the jurisdiction where all or part of the site or proposed site of the septic system is located so as to be binding notice to the public, including subsequent purchases of the land in question.

B. The holder of any permit for a septic tank issued with conditions shall have the permit recorded in the land records of the clerk of the circuit court having jurisdiction over the site of the septic system. The holder of the permit and any subsequent holders of the permit through land purchase or transfer shall be bound by the conditions stated in the permit unless the holder or subsequent holder obtains an additional permit for modification or alteration of the septic system to meet any new use conditions.

C. In adopting regulations prescribing criteria for the granting or denial of permits for septic tanks, the Board shall consider varying circumstances such as population density, extent of use of the septic tank and such other circumstances as may affect the stringency of the criteria necessary to protect the public health and promote the general welfare and may provide for the issuance of permits for septic tanks subject to such conditions as may be necessary to protect the public health.

D. Upon receipt of an application for a septic tank permit or a letter recognizing the appropriateness of onsite sewage site conditions in lieu of issuing onsite sewage system permits, the local health department shall notify the governing body of the county or city where the septic tank will be located or the official designated by the governing body for that purpose and shall provide such information concerning the application and the actions taken on the application as the governing body or officer may request.

E. Whenever a construction permit has been issued pursuant to an evaluation and design certified by a licensed professional engineer or onsite soil evaluator, the certifying licensed professional engineer or onsite soil evaluator shall inspect that system at the time of installation and provide an inspection report to the Department. The Department may, but is not required to, inspect the installation of such onsite sewage system. In the event that the certifying licensed professional engineer or onsite soil evaluator does not inspect the system in a timely manner or declines to certify that the installation was completed substantially in accordance with the evaluation and design, the owner may petition the Department to inspect the installation and render a final case decision approving or disapproving the installation. The Department shall not be required to convene an informal fact finding proceeding in accordance with § 2.2-4019 prior to rendering such decision.

Code 1950, § 32-9.01; 1979, c. 497; 1980, c. 503; 1984, cc. 457, 548; 1986, c. 615; 1994, c. 747; 2012, c. 184.

§ 32.1-164.1:01. Onsite Sewage Indemnification fund.

A. There is hereby created the Onsite Sewage Indemnification fund whose purpose is to receive moneys generated by a portion of the fees collected by the Department of Health pursuant to subsections C and E of § 32.1-164 and appropriated by the Commonwealth for the purpose of assisting any Virginia real property owner holding a valid permit to operate an onsite sewage system when such system or components thereof fail within three years of construction and such failure results from the negligence of the Department of Health. The fund may also be used, in the discretion of the Board, to support the program for training and recognition of licensed onsite soil evaluators.

B. Ten dollars of each fee collected by the Department of Health pursuant to subsections C and E of § 32.1-164 shall be deposited by the Comptroller to this fund to be appropriated for the purposes of this section to the Department of Health by the General Assembly as it deems necessary.

C. The owner of an onsite sewage system that has been permitted by the Department of Health may cause, by filing a request for payment from the fund within one year from the date the system or components thereof failed, the Commissioner to review the circumstances of the onsite sewage system failure, if the onsite sewage system has failed within three years of construction. Upon the Commissioner's finding that the onsite sewage system was permitted by the Department and (i) the system or components thereof failed within three years of construction; (ii) that specific actions of the Department were negligent and that those actions caused the failure; and (iii) that the owner filed a request for payment from the fund within one year from the date the system or components thereof failed, the Commissioner shall, subject to the limitations stated herein, reimburse the owner for the reasonable cost of following the Board's regulations to repair or replace the failed onsite sewage system or components thereof.

D. Prior to receiving payment from the fund, the owner shall follow the requirements in the Board's regulations to repair or replace the failed onsite sewage system or components thereof.

E. The total amount an owner may receive in payment from the fund shall not exceed $30,000. Only the costs of the system that failed or the costs of labor and equipment required to repair or replace the failed onsite sewage system or components thereof are reimbursable by the fund.

F. If the Commissioner finds that the system was permitted by the Department and has failed within three years of construction and that the failure resulted from faulty construction or other private party error, the Commissioner may assist the owner of the failed system in seeking redress from the system's builder or other private party.

G. Every request for payment from the fund shall be forever barred unless the owner has filed a complete application as required by the Department. The request shall be filed with the Commissioner within one year from the date that the onsite sewage system or components thereof first failed. However, if the owner was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply. The owner shall mail the request for payment from the fund via the United States Postal Service by certified mail, return receipt requested, addressed to the Commissioner.

In any action contesting the filing of the request for payment from the fund, the burden of proof shall be on the owner to establish mailing and receipt of the notice in conformity with this section. The signed receipt indicating delivery to the Commissioner, when admitted into evidence, shall be prima facie evidence of filing of the request for payment from the fund under this section. The request for payment from the fund shall be deemed to be timely filed if it is sent by certified mail, return receipt requested, and if the official receipt shows that the mailing was within the prescribed time limits.

Notwithstanding any provision of this article, the liability for any payment from the fund shall be conditioned upon the execution by the owner of a release approved by the Attorney General of all claims against the Commonwealth, its political subdivisions, agencies, and instrumentalities and against any officer or employee of the Commonwealth in connection with or arising out of the occurrence complained of.

H. The Commissioner and the Attorney General shall cooperatively develop an actuarially sound program and policy for identifying, evaluating, and processing requests for payment from the fund.

I. If the Commissioner refuses the request for payment from the fund, the owner may appeal the refusal to the State Health Department Sewage Handling and Disposal Appeal Review Board.

The Board may promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) for the administration of the fund consistent with this chapter.

In the event the fund is insufficient to meet requests for payment from the fund, this section and the creation of the fund shall not be construed to provide liability on the part of the Department or any of its personnel where no such liability existed prior to July 1, 1994.

1994, c. 747; 2007, cc. 448, 515; 2016, c. 90.

§ 32.1-164.1:1. Validity of certain septic tank permits.

A. Any septic tank permit issued shall be valid for a period of 18 months from the date of issuance unless there has been a substantial, intervening change in the soil or site conditions where the septic system is to be located. However, if a building permit has been obtained or building construction has commenced, the permit may be extended for an additional 18 months. Applicants shall be informed of the septic tank permit validity period and advised to apply only when ready to begin construction.

B. Further, whenever any onsite sewage system is failing, or an owner has elected to voluntarily upgrade an onsite sewage system pursuant to § 32.1-164.1:3, and it is on or serves real property consisting of not less than one nor more than four dwelling units and the Board's regulations impose (i) a requirement for treatment beyond the level of treatment provided by the existing onsite sewage system when operating properly or (ii) a new requirement for pressure dosing, the owner may request a waiver from such requirements. The Commissioner shall grant any request for such waiver, unless he finds that the system was installed illegally without a permit. Any such waivers shall be recorded in the land records of the clerk of the circuit court in the jurisdiction in which the property on which the relevant onsite sewage system is located. Except as provided in subsection C, waivers granted hereunder shall not be transferable and shall be null and void upon transfer or sale of the property on which the onsite sewage system is located. Additional treatment or pressure dosing requirements shall be imposed in such instances when the property is transferred or sold.

Any owner who (a) obtained a waiver to repair a failing onsite sewage system pursuant to this subsection on or between July 1, 2004, and December 6, 2011, (b) completed such repair, and (c) voluntarily upgrades the system may request, and shall receive, a voluntary upgrade waiver in accordance with this section and § 32.1-164.1:3. Any such waiver shall be recorded in the land records of the clerk of the circuit court in the jurisdiction where the onsite sewage system is located and shall supersede any prior waiver recorded pursuant to this section.

The owner of the relevant property shall disclose, in accordance with subsection D, that any operating permit for the onsite sewage system that has been granted a waiver authorized by this subsection shall be null and void at the time of transfer or sale of the property and that the Board's regulatory requirements for additional treatment or pressure dosing shall be required before an operating permit may be reinstated.

The provisions of this subsection shall apply only with respect to transfers by sale, exchange, installment land sales contract, or lease with option to buy residential real property consisting of not less than one nor more than four dwelling units, whether or not the transaction is with the assistance of a licensed real estate broker or salesperson.

C. The following are specifically allowed under the provisions of subsection B:

1. Transfers pursuant to court order including, but not limited to, transfers ordered by a court in administration of an estate, transfers pursuant to a writ of execution, transfers by foreclosure sale, transfers by a trustee in bankruptcy, transfers by eminent domain, and transfers resulting from a decree for specific performance.

2. Transfers to a beneficiary of a deed of trust by a trustor or successor in interest who is in default, transfers by a trustee under a deed of trust pursuant to a foreclosure, or transfers by a beneficiary under a deed of trust who has acquired the real property at a sale conducted pursuant to a foreclosure sale under a deed of trust or has acquired the real property by deed in lieu of foreclosure.

3. Transfers not for value by a fiduciary in the course of the administration of a decedent's estate, guardianship, conservatorship, or trust.

4. Transfers between spouses resulting from a decree of divorce or a property settlement stipulation pursuant to the provisions of Title 20.

5. Transfers to or from any governmental entity or public or quasi-public housing authority or agency.

6. Transfers pursuant to real estate purchase contracts where the owner has obtained a permit to voluntarily upgrade an onsite sewage system pursuant to § 32.1-164.1:3.

7. Other transfers consistent with criteria established by the Board of Health and the Real Estate Board.

D. The owner of residential real property subject to subsection B shall deliver to the purchaser a written disclosure prior to the acceptance of a real estate purchase contract. The written disclosure statement shall be in a separate document, developed by the Real Estate Board on or before January 1, 2006. Prior to that time, it shall be the obligation of the owner of such residential real property to prepare the written disclosure statement and provide it to the purchaser as otherwise provided herein.

E. If the disclosure required by subsection B is delivered to the purchaser after the acceptance of the real estate purchase contract, the purchaser's sole remedy shall be to terminate the real estate purchase contract at or prior to the earliest of the following: (i) three days after delivery of the disclosure in person; (ii) five days after the postmark if the disclosure is deposited in the United States mail, postage prepaid, and properly addressed to the purchaser; (iii) settlement upon purchase of the property; (iv) occupancy of the property by the purchaser; (v) the execution by the purchaser of a written waiver of the purchaser's right of termination under this chapter contained in a writing separate from the real estate purchase contract; or (vi) the purchaser making written application to a lender for a mortgage loan where such application contains a disclosure that the right of termination shall end upon the application for the mortgage loan.

In order to terminate a real estate purchase contract when permitted by this subsection, the purchaser shall, within the time required by this chapter, give written notice to the owner either by hand delivery or by United States mail, postage prepaid, and properly addressed to the owner. If the purchaser terminates a real estate purchase contract in compliance with this chapter, the termination shall be without penalty to the purchaser, and any deposit shall be promptly returned to the purchaser. Any rights of the purchaser to terminate the contract provided by this chapter shall end if not exercised prior to the earlier of (i) the making of a written application to a lender for a mortgage loan where the application contains a disclosure that the right of termination shall end upon the application for the mortgage loan or (ii) settlement or occupancy by the purchaser, in the event of a sale, or occupancy, or in the event of a lease with option to purchase.

F. A real estate licensee representing an owner of residential real property as the listing broker shall have a duty to inform each such owner represented by that licensee of the owner's rights and obligations under subsection B. A real estate licensee representing a purchaser of residential real property or, if the purchaser is not represented by a licensee, the real estate licensee representing an owner of residential real estate and dealing with the purchaser shall have a duty to inform each such purchaser of the purchaser's rights and obligations under subsection B. Provided a real estate licensee performs those duties, the licensee shall have no further duties to the parties to a residential real estate transaction under this section, and shall not be liable to any party to a residential real estate transaction for a violation of subsection B or for any failure to disclose any information regarding any real property subject to subsection B.

G. For the purposes of this section:

"Acceptance" means the full execution of a real estate purchase contract by all parties.

"Real estate purchase contract" means a contract for the sale, exchange, or lease with option to buy of real estate subject to this section.

H. The Real Estate Board shall enforce subsections D, E, and F pursuant to the provisions of Chapter 21 of Title 54.1 (§ 54.1-2100 et seq.).

1984, c. 401; 1986, c. 331; 1994, c. 747; 2004, c. 916; 2005, c. 469; 2011, c. 394; 2015, c. 111.

§ 32.1-164.1:2. Eligibility for betterment loans to repair or replace failing onsite sewage systems.

A. The Board shall establish a betterment loan eligibility program to assist owners with the repair, replacement, or upgrade of failing or noncompliant onsite sewage systems, and the Board may identify sources for betterment loans to be provided by private lenders, directly or through conduit lenders. In addition, owners may also apply to the Department for betterment loan eligibility to upgrade an onsite or alternative discharging sewage system that is not failing, provided such upgrade is for the purposes of reducing threats to public health, and ground and surface waters, including the reduction of nitrogen discharges.

B. Upon determination by the Department that the owner has one or more onsite sewage systems that are out of compliance with those regulations promulgated pursuant to this chapter, or in need of repair or replacement, the owner shall follow the requirements in the Board's regulations to initiate the repair or replacement of such systems. If the owner desires to be qualified by the Department to receive a betterment loan, at any time before the repair or replacement is completed, he shall provide the Department with an estimate of the approximate cost of such remedial work, which the Department shall accept. The issuance of a permit by the Department to repair or replace an onsite sewage system, combined with an estimate provided by the owner to the Department, shall demonstrate eligibility for a betterment loan. Upon a determination of eligibility, the Department shall notify the owner in writing. If the Department refuses the request for an eligibility letter, the owner may appeal the refusal to the State Health Department Sewage Handling and Disposal Appeal Review Board. It shall be the sole responsibility of the owner to secure the betterment loan from or through a private lender. Local health departments may provide a list of lenders available for this purpose. Nothing in this section shall be construed as allowing construction or modification of an onsite or alternative discharging sewage system without a permit issued by the Department.

C. Betterment loans made pursuant to this section shall be recorded in the deed book of the circuit court clerk's office for the locality in which the land is located and an abstract of the loan and betterment loan eligibility letter issued by the Department shall be indexed in the name of the owner. Betterment loans made pursuant to this section may be recorded in increments by the private lender as the repair or replacement of the onsite sewage system is completed, provided that in no event shall the total amount recorded exceed the estimate provided to the Department, without the Department approving an amendment to the repair permit, and issuing a revised betterment loan eligibility letter. The Department may, subject to appropriate waivers for economic hardship, charge the owner a fee not to exceed $50 for each betterment loan eligibility letter request made by an owner. The Department may require that the owner or private lender provide the Department with proof that any betterment loan has been recorded in the deed book of the circuit court clerk's office for the locality in which the land is located.

The incurrence of a betterment loan pursuant to this section shall not be considered a breach of limitation or prohibition contained in a note, mortgage or contract on the transfer of an interest in the owner's property.

D. Where agreeable to the private lender and the conduit lender, if any, a locality may act as the collection agent for the payments made by the owner on a betterment loan. Any such payments collected by the locality shall be deemed to be held in trust by the locality for benefit of the private lender and conduit issuer, if any. The locality may receive a fee payable by the private lender or conduit loan provider, if any, for such service not to exceed one-eighth of one percent of the payments collected.

2009, c. 829.

§ 32.1-164.1:3. Permits for voluntary system upgrades.

Any owner desiring to voluntarily upgrade an onsite or alternative discharging sewage system that is not failing shall file an application, according to instructions from the Board, to obtain a construction permit to improve the system in accordance with the laws and regulations of the Board for repairing failing systems, provided such upgrade is for the purposes of reducing threats to the public health, or to ground and surface waters, including the reduction of nitrogen discharges.

The Department shall attach a statement to any permit issued pursuant to this section clearly stating that the upgrades specified in the permit are voluntary and not required by law. The Department may require the owner to indemnify and hold harmless the Department prior to the issuance of any such permit. Any permits issued pursuant to this section shall be subject to the provisions of § 32.1-164.1:1.

2011, c. 394.

§ 32.1-164.2. Repealed.

Repealed by Acts 2007, cc. 881 and 929, cl. 8, effective January 1, 2008.

§ 32.1-164.8. Onsite Operation and Maintenance Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Onsite Operation and Maintenance Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All fees collected pursuant to subsection H of § 32.1-164 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of supporting the operation and maintenance of onsite systems, including but not limited to (i) training operators and (ii) supporting the reporting system required by subsection H of § 32.1-164. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by Commissioner.

2007, c. 892.

§ 32.1-164.9. Regulations for chamber and bundled expanded polystyrene effluent distribution systems for onsite sewage systems.

The Board of Health shall promulgate regulations for chamber and bundled expanded polystyrene effluent distribution systems for onsite sewage systems permitted by the Commissioner pursuant to Article 1 (§ 32.1-164 et seq.) of Chapter 6 of Title 32.1. Such regulations shall include requirements for chamber and bundled expanded polystyrene effluent distribution systems for onsite sewage systems, which shall include (i) specifications for the physical construction of chamber and bundled expanded polystyrene effluent distribution systems including minimum exterior width, height, effluent storage capacity, and structural capacity; (ii) requirements for a permeable interface between chamber and bundled expanded polystyrene effluent distribution systems and trench sidewall soil surfaces for the absorption of wastewater; (iii) criteria for the allowable slope, maximum length, minimum sidewall depth, and minimum lateral separation of chamber and bundled expanded polystyrene effluent distribution system absorption trenches; (iv) criteria for substituting chamber and bundled expanded polystyrene effluent distribution systems for gravity percolation trenches and gravel and crushed stone low pressure systems; (v) criteria for determining the minimum area requirements for chamber and bundled expanded polystyrene effluent distribution system absorption trenches; and (vi) such other requirements pertaining to the promulgation of chamber and bundled expanded polystyrene effluent distribution system regulations for onsite sewage systems as may be deemed necessary by the Board.

2013, c. 202.

§ 32.1-165. Prior approval required before issuance of building permit; approved sewage system or nonconforming system.

A. No county, city, town, or employee thereof shall issue a permit for a building designed for human occupancy without the prior written authorization of the Commissioner or his agent. The Commissioner or his agent shall authorize the issuance of such permit upon finding that safe, adequate, and proper sewage treatment is or will be made available to such building, or upon finding that the issuance of such permit has been approved by the Review Board. "Safe, adequate, and proper" means a treatment works that complies with applicable regulations of the Board of Health that are in effect at the time of application.

B. The Commissioner shall develop an application and procedure for evaluating an installed treatment works and to determine whether to authorize issuance of a permit for a building designed for human occupancy.

C. Nothing in this section shall be construed to prevent the Commissioner or his agent from approving the use of a nonconforming treatment works, provided the treatment works was installed in accordance with the Board of Health's applicable regulations in effect at the time of its installation, is not failing, and is designed and constructed for the sewage flow and strength expected from the building.

D. Nothing in this section shall be construed to prevent an owner of real property from receiving a voluntary upgrade pursuant to § 32.1-164.1:3, or other permit, as a condition of approval as a nonconforming treatment works.

E. The Board, Commissioner, and Department may accept a certified evaluation from (i) a professional engineer licensed pursuant to Chapter 4 of Title 54.1; (ii) an onsite soil evaluator, onsite sewage system operator, or onsite sewage system installer licensed pursuant to Chapter 23 of Title 54.1; (iii) or other individual with an appropriate certification from the National Sanitation Foundation, or equivalent. The Department may perform an inspection of the certified evaluation but shall not be required to perform a field check prior to the issuance of the written authorization in subsection A.

Code 1950, § 32-9; 1954, c. 646; 1964, c. 436; 1970, c. 645; 1972, c. 775; 1979, c. 711; 1984, c. 457; 2016, c. 96.

§ 32.1-166. Agreements with federal agencies.

The Board may enter into an agreement with any appropriate federal agency to regulate and monitor the collection, transportation, conveyance, treatment and disposal of sewage from common carriers or at federal facilities pursuant to the Public Health Service Act, United States Public Law 78-410, and any other applicable federal law.

Code 1950, § 32-9; 1954, c. 646; 1964, c. 436; 1970, c. 645; 1972, c. 775; 1979, c. 711.

Article 1.1. State Health Department Sewage Handling and Disposal Appeal Review Board.

§ 32.1-166.1. Review Board; members.

There is hereby established, in the Department of Health, the State Health Department Sewage Handling and Disposal Appeal Review Board, consisting of seven members, appointed by the Governor subject to confirmation by the General Assembly. The members shall include one member who is a soil scientist; one member who is a professional engineer in private practice; one member who is a residential builder; one member who is an academic professional engaged in research and teaching in a soils-related discipline; one member who has had experience in the field of enforcement of onsite sewage disposal regulations; one member who is engaged in private soils analysis work related to the installation of onsite sewage systems; and one member from the public at large who may have experience in the installation of onsite sewage systems. The members shall serve at the pleasure of the Governor.

1984, c. 457; 1987, c. 47.

§ 32.1-166.2. Officers; secretary.

The Review Board, under rules adopted by itself, shall elect one of its members as chairman, for a term of two years, and may elect one of its members as vice-chairman. The Review Board may also elect a secretary, who may be a nonmember.

1984, c. 457.

§ 32.1-166.3. Oath.

Before entering upon the discharge of their duties, all members of the Review Board shall take an oath that they will faithfully and honestly execute the duties of their office during their continuance therein.

1984, c. 457.

§ 32.1-166.4. Meetings.

The Review Board shall meet eight times per year to hear appeals of denials of applications for onsite sewage disposal systems.

Any appeal shall be filed thirty days prior to a meeting in order to be placed on the docket. The Review Board shall provide its decision in writing within fifteen days of the date of the hearing to the person making the appeal, his representative and the Department of Health.

1984, c. 457; 1986, c. 331.

§ 32.1-166.5. Offices.

The Review Board shall be furnished adequate space and quarters in the suite of offices of the Department, where the Board's main office shall be located.

1984, c. 457.

§ 32.1-166.6. Review Board to hear appeals.

The Review Board shall hear all administrative appeals of denials of onsite sewage disposal system permits and appeals of refusals of indemnification requests filed pursuant to § 32.1-164.1:01, and refusals of betterment loan eligibility letters pursuant to § 32.1-164.1:2, and render its decision on any such appeal, which decision shall be the final administrative decision. Proceedings of the Review Board and appeals of its decisions shall be governed by the provisions of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2.

In addition to the authority to render a final administrative decision, the Review Board, in its discretion, may develop recommendations for alternative solutions to the conditions resulting in denial of the permit or refusal to indemnify and remand the case to the Department of Health for reconsideration.

For purposes of this section "betterment loan" is as defined in § 32.1-163.

1984, c. 457; 1986, c. 331; 1994, c. 747; 2009, c. 829.

§ 32.1-166.7. Subpoenas; witnesses; designation of subordinates.

In any matter before it on appeal for hearing and determination, the Review Board or its designated subordinates may compel the attendance of all needed witnesses in like manner as a circuit court, save the Review Board shall not have the power of imprisonment. In taking evidence, the chairman or any member of the Review Board, or its designated subordinates, shall have the power to administer oaths to witnesses. Where a designated subordinate of the Review Board presides over hearings on appeals, such subordinate shall submit recommended findings and a decision to the Review Board pursuant to § 2.2-4020.

1984, c. 457.

§ 32.1-166.8. Record of decisions.

A record of all decisions of the Review Board, properly indexed, shall be kept in the office of such Review Board. The records shall be open to public inspection at all times during business hours.

1984, c. 457.

§ 32.1-166.9. Interpretation of application of regulations; recommendation of modifications.

The Review Board shall interpret the application of the provisions of the Sewage Handling and Disposal Regulations in its review of appeals and shall make such recommendations, as it deems appropriate, to the Board for modification, amendment or repeal of any such provisions of the regulations. A record of all such recommendations, and of the Board's actions thereon, shall be kept in the office of the Review Board. Such record shall be open to public inspection at all times during business hours.

1984, c. 457.

§ 32.1-166.10. Appeals fees.

The Department shall establish a reasonable fee to be charged to the appealing party commensurate with the time and expenses related to the handling of each appeal.

1984, c. 457; 1994, c. 747.

Article 2. Public Water Supplies.

§ 32.1-167. Definitions.

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

"Aesthetic standards" means water quality standards which involve those physical, biological, and chemical properties of water that adversely affect the palatability and consumer acceptability of water through taste, odor, appearance, or chemical reaction.

"Chronically noncompliant waterworks" means a waterworks that is unable to provide pure water for any of the following reasons: (i) the waterworks' record of performance demonstrates that it can no longer be depended upon to furnish pure water to the persons served; (ii) the owner has inadequate technical, financial, or managerial capacity to furnish pure water to the persons served; (iii) the owner has failed to comply with an order issued by the Board or Commissioner pursuant to § 32.1-26 or 32.1-175.01; (iv) the owner has abandoned the waterworks and has discontinued supplying pure water to the persons served; or (v) the owner is subject to a forfeiture order pursuant to § 32.1-174.1.

"Governmental entity" means the Commonwealth, a town, city, county, service authority, sanitary district, or any other governmental body established under state law, including departments, divisions, boards, or commissions.

"Human consumption" means drinking, food preparation, dishwashing, bathing, showering, hand washing, teeth brushing, and maintaining oral hygiene.

"Owner" means an individual, group of individuals, partnership, firm, association, institution, corporation, governmental entity, or the federal government, that supplies or proposes to supply water to any person within this Commonwealth from or by means of any waterworks.

"Pure water" means water fit for human consumption that is (i) sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts and (ii) adequate in quantity and quality for the minimum health requirements of the persons served.

"Special order" means an administrative order issued to any person to comply with: (i) the provisions of any law administered by the Board, (ii) any condition of a permit, (iii) any regulation of the Board, or (iv) any case decision, as defined in § 2.2-4001, of the Board. A special order may include a civil penalty of not more than $1000 for each day of violation.

"Water supply" means water taken into a waterworks from wells, streams, springs, lakes, and other bodies of surface water, natural or impounded, and the tributaries thereto, and all impounded ground water but does not include any water above the point of intake of such waterworks.

"Waterworks" means a system that serves piped water for human consumption to at least 15 service connections or 25 or more individuals for at least 60 days out of the year. "Waterworks" includes all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water except the piping and fixtures inside the building where such water is delivered.

Code 1950, § 62.1-45; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1997, c. 342; 2007, cc. 648, 774; 2014, c. 333.

§ 32.1-168. Exemptions.

The provisions of this article shall not be applicable to a waterworks which meets all of the following conditions:

1. The waterworks consists only of distribution and storage facilities and does not have any collection or treatment facilities;

2. The waterworks obtains all of its water from, but is not owned or operated by, a waterworks to which this article is applicable;

3. The waterworks does not sell water to any person; and

4. The waterworks is not a carrier which conveys passengers in interstate commerce.

1979, c. 711.

§ 32.1-169. (Effective until January 1, 2022) Supervision by Board.

The Board shall have general supervision and control over all water supplies and waterworks in the Commonwealth insofar as the bacteriological, chemical, radiological, and physical quality of waters furnished for human consumption may affect the public health and welfare and may require that all water supplies be pure water. In exercising such supervision and control, the Board shall recognize the relationship between an owner's financial, technical, managerial, and operational capabilities and his capacity to comply with state and federal drinking water standards.

Code 1950, § 62.1-46; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1994, c. 395; 2014, c. 333.

§ 32.1-169. (Effective January 1, 2022) Supervision by Board.

A. The Board shall have general supervision and control over all water supplies and waterworks in the Commonwealth insofar as the bacteriological, chemical, radiological, and physical quality of waters furnished for human consumption may affect the public health and welfare and may require that all water supplies be pure water. In exercising such supervision and control, the Board shall recognize the relationship between an owner's financial, technical, managerial, and operational capabilities and his capacity to comply with state and federal drinking water standards.

B. The Board shall adopt regulations establishing maximum contaminant levels (MCLs) in all water supplies and waterworks in the Commonwealth for (i) perfluorooctanoic acid and perfluorooctane sulfonate, and for such other perfluoroalkyl and polyfluoroalkyl substances as the Board deems necessary; (ii) chromium-6; and (iii) 1,4-dioxane. Each MCL shall be protective of public health, including of vulnerable subpopulations, including pregnant and nursing mothers, infants, children, and the elderly, and shall not exceed any MCL or health advisory for the same contaminant adopted by the U.S. Environmental Protection Agency. In establishing such MCLs, the Board shall review MCLs adopted by other states, studies and scientific evidence reviewed by such states, material in the Agency for Toxic Substances and Disease Registry of the U.S. Department of Health, and current peer-reviewed scientific studies produced independently or by government agencies.

Code 1950, § 62.1-46; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1994, c. 395; 2014, c. 333; 2020, c. 1097.

§ 32.1-170. Regulations.

A. The regulations of the Board governing waterworks, water supplies, and pure water shall be designed to protect the public health and promote the public welfare and shall include criteria and procedures to accomplish these purposes.

The regulations may include, without limitation:

1. Requirements and procedures for the issuance of permits required by this article;

2. Minimum health and aesthetic standards for pure water;

3. Minimum standards for the quality of water which may be taken into a waterworks;

4. Criteria for the siting, design, and construction of water supplies and waterworks;

5. Requirements for inspections, examinations, and testing of raw or finished water;

6. A requirement that owners submit (i) regular samples of water for bacteriological, chemical, radiological, physical, or other tests or (ii) the results of such tests from such laboratory as may be acceptable to the Commissioner;

7. Requirements for record keeping and reporting;

8. Methodology for determining the waterworks operation fee authorized by § 32.1-171.1;

9. Requirements and criteria for the development and maintenance of an emergency management plan for each community public water supply for the provision of pure water during any extended power outage; and

10. Such other provisions as may be necessary to guarantee a supply of pure water.

B. The regulations of the Board governing waterworks, water supplies, and pure water shall include a procedure whereby waterworks serving fewer than 10,000 people may seek and the Board may grant a waiver of any requirement that the waterworks mail copies of its consumer confidence report to each customer of the waterworks at least once annually. In such cases, the waterworks owner shall publish, by July 1 of each year, in a newspaper of general circulation serving the area served by the waterworks, and by such other means as the Board may deem appropriate, (i) a copy of the consumer confidence report, (ii) notice that copies of the consumer confidence report will not be mailed to customers of the waterworks, and (iii) notice that copies of the consumer confidence report shall be made available to the public upon request. The waterworks owner shall certify compliance with the requirements of this subsection to the Board no later than October 1 of each year.

Code 1950, §§ 62.1-47, 62.1-48, 62.1-51; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1992, c. 804; 2004, c. 317; 2011, cc. 804, 843.

§ 32.1-171. Technical assistance as to sources and purity.

The Commissioner shall, upon request and without charge, provide technical assistance to owners regarding the most appropriate source of water supply and the best method of assuring pure water, but the Commissioner shall not prepare plans, specifications or detailed estimates for such owners. The technical assistance provided by this section shall be exclusive of the Waterworks Technical Assistance Program required by § 32.1-171.1.

Code 1950, § 62.1-49; 1964, c. 475; 1968, c. 659; 1979, c. 711; 1992, c. 804.

§ 32.1-171.1. Waterworks operation fee required; special fund established; certain technical assistance program to be provided.

A. Every owner of a waterworks shall pay to the Department a waterworks operation fee of no more than $160,000 per year. Based upon the number of persons served, the number of connections, or the classification of the waterworks, the Board shall, pursuant to its regulations, establish the fee to be charged each such owner and may exempt sizes and classes from the required fee. Any fee in excess of $10,000 shall be payable quarterly. The Board shall adjust the fee schedule so that the revenues from such fees cover the costs necessary to operate the Waterworks Technical Assistance Program required by this section.

B. In order to assist waterworks owners in complying with the requirements of the Safe Drinking Water Act (42 U.S.C. § 300f et seq.) and associated state regulations, there is hereby established in the state treasury a special fund to be known as the Waterworks Technical Assistance Fund, hereinafter referred to as the Fund. The fees required by this section shall be transmitted to the Comptroller to be deposited into the Fund. The income and principal of the Fund shall be used only and exclusively for the technical assistance required by this section. The State Treasurer shall be custodian of the moneys deposited in the Fund. No part of the Fund, either principal or interest earned thereon, shall revert to the general fund of the state treasury.

C. Moneys in the Fund shall be used by the Department to conduct the Waterworks Technical Assistance Program, which shall include, but need not be limited to: (i) training for operator certification, (ii) engineering evaluation and advice, (iii) sample collection for laboratory analysis, and (iv) educational seminars.

1992, c. 804.

§ 32.1-171.2. Water Supply Assistance Grant Fund established.

A. There is hereby created in the state treasury a special nonreverting fund to be known as the Water Supply Assistance Grant Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All funds appropriated as matching funds for moneys available through the federal Safe Drinking Water Act, all penalties and charges directed to this fund by §§ 32.1-27, 32.1-175.01 and 32.1-176, and all other funds from any public or private source directed to the Fund shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes found in subsection B. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner at the direction of the Board.

B. The Board shall utilize the moneys appropriated as matching funds for that purpose and, subject to other available funds, may make Water Supply Assistance Grants from the Fund to localities and the owners of waterworks to assist in the provision of drinking water. The Board shall develop guidelines establishing the (i) criteria for grant eligibility, (ii) conditions to be included in grants, and (iii) grant distribution priorities. Among the factors that shall be included in the criteria for grant eligibility and in the grant distribution priorities shall be the financial condition of the locality wherein a grant is sought.

C. The Administrative Process Act (§ 2.2-4000 et seq.) shall not apply to the development of guidelines for the Fund. However, the process for development of the guidelines by the Board shall include (i) the use of an advisory committee composed of interested parties, (ii) a minimum sixty-day public comment period on draft guidelines followed by a public hearing, (iii) written responses to all comments received, and (iv) notice of the availability of draft guidelines and final guidelines to all who request such notice.

1999, c. 786.

§ 32.1-172. Permit required.

A. No owner shall establish, construct or operate any waterworks or water supply in the Commonwealth without a written permit from the Commissioner, except for the extension of water distribution piping having a diameter of eight inches or less and serving less than fifteen equivalent residential connections.

B. The application for such a permit shall comply with regulations of the Board and shall be accompanied by a certified copy of the maps, plans and specifications for the construction of such waterworks, a description of the source or sources from which it is proposed to derive the water supply and the manner of storage, purification or treatment proposed for the water supply prior to its delivery to consumers.

The application also shall include a comprehensive business plan detailing the technical, managerial, and financial commitments to be made by the owner in order to assure that system performance requirements for providing the water supply will be met over the long term. The Board, in consultation with the State Corporation Commission, shall establish the criteria to be used by the applicant in the development of a business plan.

In addition, the Board may require the submission of a business plan by those existing waterworks that have demonstrated significant noncompliance with the waterworks regulations. The Board may waive the requirement for submission of a comprehensive business plan for applicants who have demonstrated a history of acceptable compliance with waterworks regulations.

If any applicant so requests, the Board shall not disclose the contents of the comprehensive business plan except as necessary to perform its duties.

C. The permit may state the permitted capacity of the waterworks, the permitted source or sources of the water supply, the permitted manner of storage, purification and treatment for the water supply and such other conditions as the Commissioner may deem necessary to afford a supply of pure water.

D. Except as may be provided by regulation of the Board, no other source of water supply shall subsequently be used for any such waterworks, nor shall any change in the manner of storage, purification and treatment of the water supply be made without obtaining an additional or amended permit.

E. Whenever application shall be made to the Commissioner for a permit, he shall examine the application and, as soon as practicable thereafter, shall issue the permit if, in his judgment, the proposed waterworks will furnish pure water. If the proposed waterworks is not in compliance with all regulations of the Board but, in the opinion of the Commissioner, the public health will not be jeopardized, the Commissioner may issue a temporary permit for such period of time and subject to such conditions as the Commissioner may deem appropriate for the owner to achieve compliance with such regulations.

F. No permit shall be assigned or transferred.

Code 1950, §§ 62.1-50, 62.1-56; 1964, c. 475; 1968, c. 659; 1979, c. 711; 1994, cc. 395, 708.

§ 32.1-173. Additional or amended permits.

A. Any owner intending to make changes, alterations or improvements to a waterworks for which a permit has been granted shall apply to the Commissioner for an additional or amended permit in a manner prescribed by regulations of the Board. The Commissioner shall review and act upon the application in the manner set forth in § 32.1-172.

B. The Commissioner may, on his own motion, amend any permit whenever he determines that:

1. The existing permit is no longer valid;

2. Changes, alterations, or improvements to the waterworks are necessary to provide an adequate supply of pure water; or

3. A change has occurred in the manner of storage or treatment or the source of the water supply.

Code 1950, § 62.1-55; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711.

§ 32.1-173.1. Increase in charges to finance required changes.

Any owner required to make any change, alteration or improvement in its waterworks or water supply may increase its charges for water to finance or defray the cost of such change, alteration or improvement and any extra costs incident to the maintenance and operation thereof.

Code 1950, § 62.1-53; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711.

§ 32.1-174. Revocation of permits.

The Commissioner may revoke any permit issued pursuant to this article whenever he determines that:

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

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

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

Code 1950, §§ 62.1-53, 62.1-55; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1992, c. 804.

§ 32.1-174.1. Bonds of permit holders.

A. The Board may by regulation require owners holding or issued permits for waterworks pursuant to this article, to post bonds or deposit funds to be placed in escrow.

B. The Board or the governing body of a county, city or town in which a waterworks is located may request the circuit court having jurisdiction where the waterworks is located to order forfeiture of the owner's bond or escrow account upon revocation of the Waterworks Operation Permit by the Board or Commissioner pursuant to § 32.1-174.

If the foregoing condition is met, the court shall order forfeiture of such bond or escrow account, in whole or in part, unless the court finds the forfeiture would result in manifest injustice.

C. In addition to ordering such forfeiture, the court may, with the concurrence of the governing body of the county, city or town in which the waterworks is located, place the waterworks in receivership naming the county, city, or town, or any public service authority created by the county, city or town, as receiver.

D. Any sums forfeited pursuant to subsection B shall be paid in the amount of such forfeiture to the county, city or town in which the waterworks is located (i) if the county, city, or town, or a public service authority created by the county, city or town, initiates eminent domain proceedings for the condemnation of the waterworks within one year of the date of the order of forfeiture or (ii) if the county, city, town or public service authority operates the waterworks pursuant to a decree of an appropriate circuit court vesting receivership of the waterworks in the county, city, town or public service authority. If the governing body of the county, city, or town, or a public service authority created by the county, city or town, fails to initiate such condemnation proceedings within one year of the date of forfeiture of any bond or to accept receivership of the waterworks from the circuit court, the funds forfeited shall be paid to the general fund of the Commonwealth.

E. The Board may adopt regulations for determining the amount of the bond or funds to be placed in escrow based upon the number of persons served, the number of connections served, the age and condition of the waterworks system infrastructure, the cost of maintaining, repairing, or replacing the waterworks system infrastructure, and the water supply capacity of the permit holder.

F. No state, local or other governmental agency shall be required to post a bond or deposit funds. The Board may, by regulation, exempt classes of permit holders from such requirements if the Board determines such classes present no significant risks to public health and safety.

G. An acceptable bond for the purposes of this section shall be a bond issued by a fidelity or surety company authorized to do business in Virginia, a personal bond secured by such collateral as the Board may require or a cash bond.

1980, c. 402; 2011, c. 502.

§ 32.1-174.2. Duties of electric utilities.

No electric utility shall disconnect electrical service to any waterworks holding a permit issued pursuant to this article until the utility has (i) provided sixty days' written notice to the Board of its intent to disconnect electrical service to the waterworks; (ii) filed with the Board at least sixty days prior to the disconnection a written request that the Board initiate forfeiture proceedings against any bond posted or funds deposited by the permit holder; and (iii) provided sixty days' written notice to the governing body of the county, city or town in which the waterworks is located.

1980, c. 402.

§ 32.1-174.3. Appointment of receiver for certain private waterworks; grounds for such appointment; petition and hearing, etc.

A. In addition to the remedies provided in § 32.1-27 and this chapter for civil and criminal penalties and injunctive or other relief, the Commissioner may petition the circuit court for the jurisdiction in which any private waterworks is located for the appointment of a receiver for such waterworks in accordance with the provisions of this section. Such petition may be filed at any time that the Commissioner finds that the waterworks is unable or unwilling to provide adequate and safe service for any of the following reasons:

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

2. The waterworks has inadequate capacity to furnish pure water to its customers;

3. The owner has failed to comply with an order issued by the Commissioner;

4. The owner has abandoned the waterworks and has discontinued supplying pure water to his customers;

5. The owner is subject to a forfeiture order pursuant to § 32.1-174.1; or

6. The Commissioner has issued an emergency order because there is an imminent danger to the public health and welfare resulting from the operation of the waterworks or the source of the water supply.

B. Upon the filing of a petition for appointment of a receiver for a private waterworks, the court shall hold a hearing within 10 days, at which time the Commissioner and the owner of the waterworks may present evidence. The court may grant the petition if it finds any one or more of the conditions identified in subsection A and the court further finds that the conditions will not be remedied and that the health and welfare of the owner's customers will not be protected unless the petition is granted.

C. Upon appointment the receiver shall take possession of the assets of the waterworks and shall operate the waterworks in the best interests of the customers. The receiver shall have such powers and duties to operate and manage the waterworks as the court may grant and direct, including the filing of such reports as the court may direct and the power to receive, conserve, protect, and disburse funds; further, the provisions of Article 1 (§ 8.01-582 et seq.) of Chapter 22 of Title 8.01 shall apply, mutatis mutandis.

The court may grant injunctive relief as it deems appropriate to the Commissioner or the receiver either in conjunction with or subsequent to the granting of a petition for appointment of a receiver under this section.

D. Control of and responsibility for the waterworks shall remain in the receivership until the waterworks can, in the best interest of the customers, be returned to the owner, transferred to a new owner, or otherwise configured as the court may determine to be in the best interests of the public and the customers.

E. The court may terminate the receivership on the motion of the Commissioner, the receiver, or the owner, upon finding, after a hearing, that the conditions initiating the petition for the appointment of a receiver have been eliminated or resolved. Within 30 days after such termination, the receiver shall file a complete report of his activities with the court, including an accounting for all property of which he took possession and all funds collected.

A receiver appointed pursuant to this section shall be an officer of the court, shall not be liable for the conditions of the waterworks that existed prior to his receivership, and shall not be personally liable, except for his own gross negligence or intentional acts, to injuries or damage to property relating to the waterworks during his receivership.

This subsection shall not, however, be construed to relieve any owner of any duty imposed by law or of any civil or criminal liability incurred by reasons of any act or omission of such owner.

2003, c. 458.

§ 32.1-174.4. Identification and elimination of chronically noncompliant waterworks.

A. The Board shall promulgate regulations for the implementation of a program to (i) identify chronically noncompliant waterworks as defined in § 32.1-167 and (ii) create mechanisms or enforcement options for eliminating chronically noncompliant waterworks.

B. Out of such funds as may be appropriated, the Commissioner of Health, with the assistance of the Office of the Attorney General, is authorized to enter into contracts for (i) the design of a program for the identification of noncompliant waterworks and (ii) the development of enforcement options to carry out the provisions of this act.

2007, cc. 648, 774.

§ 32.1-175. Emergency orders; appeal.

A. The Commissioner may issue emergency orders in any case where there is an imminent danger to the public health and welfare resulting from the operation of any waterworks or the source of a water supply. 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. Emergency orders shall be effective for a period determined by the Commissioner.

B. An emergency order issued by the Commissioner may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, § 62.1-62; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1986, c. 615.

§ 32.1-175.01. Issuance of special orders.

Notwithstanding any other provision of law and to the extent consistent with federal requirements, following a proceeding as provided in § 2.2-4019, the Board may issue a special order that may include a civil penalty against an owner who violates this article or any order or regulation adopted thereto by the Board. The issuance of a special order shall be considered a case decision as defined in § 2.2-4001. Civil penalties collected pursuant to this section shall be paid into the state treasury and credited to the Water Supply Assistance Grant Fund created pursuant to § 32.1-171.2.

1997, c. 342, § 32.1-176.1:1; 1999, c. 786.

§ 32.1-175.1. Notice to local government.

A. Upon issuing a notice of violation of any provision of regulation promulgated pursuant to this article to the owner of a waterworks or water supply, the Commissioner shall simultaneously notify the chief administrative officer or his designee of the county, city or town in which such waterworks or water supply is located.

B. Spotsylvania County is authorized to enact an ordinance requiring the owner of any waterworks or water supply located in the county to provide the chief administrative officer of the county with the results of all tests performed on such waterworks or water supply.

1987, c. 400.

§ 32.1-176. Penalty.

In addition to the provisions of § 32.1-27, any owner who violates any provisions of this article or any order or regulation adopted pursuant thereto shall, upon such finding by a court of competent jurisdiction, be assessed a civil penalty of not more than $5,000 for each day of such violation. All penalties under this section shall be recovered in a civil action brought by the Attorney General in the name of the Commonwealth. Civil penalties collected pursuant to this section shall be paid into the state treasury and credited to the Water Supply Assistance Grant Fund created pursuant to § 32.1-171.2.

Code 1950, § 62.1-59; 1964, c. 475; 1968, c. 659; 1977, c. 7; 1979, c. 711; 1999, c. 786.

Article 2.1. Private Well Construction.

§ 32.1-176.1. Short title.

This article shall be known and may be cited as the "Virginia Private Well Construction Act."

1986, c. 401.

§ 32.1-176.2. Findings and policy.

The General Assembly finds that the improper construction of private wells can adversely affect aquifers as ground water resources in the Commonwealth. Consistent with the duty to protect these ground water resources and to safeguard the public welfare, safety and health it is declared to be the policy of this Commonwealth to require that the construction and location of private wells conform to reasonable requirements.

1986, c. 401.

§ 32.1-176.3. Definitions.

As used in this article:

"Construction of wells" means acts necessary to construct wells, including the location of wells.

"Plat" or "survey plat" means the schematic representation of a parcel of land, showing the property boundaries, the proposed site of the water well, and any potential sources of contamination, prepared by an individual licensed by the Commonwealth to perform such services.

"Private well" means any water well constructed for a person on land which is owned or leased by that person and is usually intended for household, ground water source heat pump, agricultural use, industrial use or other nonpublic water well.

"Site plan" means a sketch of a parcel of land, showing the property boundaries, the proposed site of the water well, and any potential sources of contamination.

1986, c. 401; 2009, c. 59.

§ 32.1-176.4. Powers and duties of Board and Department; regulations; fees.

A. The Board shall adopt regulations pertaining to the location and construction of private wells in the Commonwealth. These regulations shall include minimum storage capacity and yield requirements for residential drinking wells. The certified water well systems provider shall certify the storage capacity and the yield of the well on a form provided by the Department at the time the well is completed. The Department shall enforce the provisions of this article and any rules and regulations adopted pursuant thereto. However, for private wells located in the Counties of Fairfax, Goochland, James City, Loudoun, Powhatan, and Prince William and the City of Suffolk, the governing body of such county or city may, by ordinance, establish standards which are consistent with Board standards pertaining to location and testing of water therefrom and more stringent than those adopted by the Board pertaining to construction and abandonment. However, any county or city granted these additional powers shall not require certification for drillers of monitoring wells and any recovery wells associated with such monitoring wells.

B. A fee of $40 shall be charged for filing an application for a private well construction permit with the Department. Funds received in payment of such charges shall be transmitted to the Comptroller for deposit. The funds from the fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this title. The Board, in its regulations, shall establish a procedure for the waiver of fees for persons whose incomes are below the federal poverty guidelines established by the United States Department of Health and Human Services or when the application is for replacement of a well. If the Department denies the permit for land on which the applicant seeks to construct his principal place of residence, then such fee shall be refunded to the applicant.

From such funds as are appropriated to the Department from the special fund, the Board shall apportion a share to the local or district health departments to be allocated in the same ratios as provided for the operation of such health departments pursuant to § 32.1-31. Such funds shall be transmitted to the local or district health departments on a quarterly basis.

C. The Board's regulations shall provide for the issuance of an express geothermal permit allowing, upon proper registration and payment of application fees, the construction of wells used solely for a closed loop geothermal heating system. The express geothermal permit shall include:

1. A requirement that all well construction be performed by a person holding a valid, appropriate contractor license with water well classification pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1;

2. A requirement that the contractor provide a registration statement to the Department prior to beginning construction of the geothermal heating system certifying that the location and construction of the geothermal heating system will comply with the private well regulations;

3. A requirement that the registration statement accurately identify the property location, the owner's name, address, and contact information, and the contractor's name, address, and contact information;

4. A requirement that the registration statement include a detailed site plan, drawn to scale, showing the location of the geothermal heating system and any potential sources of contamination;

5. A provision that construction of the geothermal heating system may begin immediately upon submittal of a proper registration statement; and

6. A provision that a single application and a single fee be required for any geothermal well system. The fee will be equal to the fee for a single private well.

1986, c. 401; 1988, c. 203; 1991, c. 514; 1992, c. 599; 1993, cc. 85, 728, 794; 1994, cc. 141, 747; 1999, c. 633; 2004, c. 72; 2009, cc. 105, 710.

§ 32.1-176.5. Construction permit; local government authority to require analysis of water.

A. Any person intending to construct a private well shall apply to the Department for and receive a permit before proceeding with construction. The permit application shall include a site plan. No survey plat shall be required. In all cases, it shall be the landowner's responsibility to ensure that the water well is properly located on the landowner's property. This permit shall be issued no later than 60 days from application and in accordance with the Board's regulations. In addition, an inspection shall be made after construction to assure that the construction standards are met.

B. The local governing bodies of the Counties of Albemarle, Bedford, Chesterfield, Clarke, Culpeper, Fairfax, Fauquier, Goochland, James City, Loudoun, Orange, Powhatan, Prince William, Rappahannock, Stafford, Warren, and York, and the Cities of Manassas, Manassas Park, Suffolk, and Virginia Beach may by ordinance establish reasonable testing requirements to determine compliance with existing federal or state drinking water quality standards and require that such testing be done prior to the issuance of building permits. Such testing requirements shall apply only to building permit applicants proposing to utilize private ground water wells as their primary potable water source. In developing such an ordinance, the local governing body shall consider (i) the appropriate ground water constituents to be tested using the above standards as guidance; (ii) the reasonable cost of such testing which may be borne by the applicant; and (iii) the availability of certified laboratories to perform such services. However, no such test shall be conducted by Consolidated Laboratories. The applicant shall be notified of the test results with respect to such established standards.

C. Any local governing body referenced in subsection B of this section that has adopted a well abandonment ordinance may require property owners to close and cap abandoned or inactive wells pursuant to that ordinance.

1986, c. 401; 1988, c. 441; 1989, cc. 454, 696; 1990, cc. 544, 547, 661; 1993, c. 794; 1995, c. 220; 1996, c. 202; 1999, c. 633; 2003, c. 500; 2009, c. 59; 2014, c. 599.

§ 32.1-176.5:1. Department to test for oil contamination; maintain lists of private laboratories.

A. The Department shall disseminate the information on confirmed oil releases and discharges, contained in the Department of Environmental Quality's monthly report prepared pursuant to § 62.1-44.15:4.1, to local health departments and Department field offices. Local health departments and field offices shall make the reports available for public inspection.

B. Upon the request of any person whose private well is located in an area, as defined by the Department, where an oil release or discharge has been confirmed in the reports prepared by the Department of Environment Quality, the Department shall test the water supply of the private well for the presence of oil to determine whether there is risk to public health. The costs of such tests shall be borne by the person requesting the test, unless the Department finds the oil release or discharge poses a potential risk to the health of persons using that private well.

C. The Department shall maintain and make available, upon the request of any person, a list of various private companies located throughout the Commonwealth that possess the technical expertise to analyze water samples for the presence of oil constituents. Any private company providing such laboratory testing services may contact the Department and shall have its name placed on the list. The placement of a company on the list shall not constitute an endorsement of any company or its services.

1998, c. 795.

§ 32.1-176.5:2. Prohibition on private well construction.

A. No private well shall be constructed within 50 feet of the property line with an adjacent property of three acres or larger that is used for an agricultural operation, as defined in § 3.2-300. The following shall be exempt: (i) the owner of the adjacent property that is used for an agricultural operation may grant written permission for construction within 50 feet of the property line; or (ii) certification that no other site on the property complies with the Board's regulations for the construction of a private well.

B. The Department shall accept private site evaluations and designs, in compliance with the Board's regulations for the construction of private wells, designed and certified by a licensed professional engineer, in consultation with a licensed onsite soil evaluator, or by a licensed onsite soil evaluator. The evaluations and designs included within such submissions shall be certified as complying with the Board's regulations implementing this chapter. The Department shall not be required to perform a field check of private evaluations and designs prior to issuing the requested letter, permit, or approval. However, the Department may conduct such review of the work and field analysis as deemed necessary to protect the public health, integrity of the Commonwealth's environment, and the provisions of this chapter.

C. The Department, prior to issuing a permit, shall require any owner applying for a permit to construct a private well pursuant to the exemptions in subsection A to submit documentation that affirms the well construction site complies with the provisions of this section.

2007, c. 403; 2008, c. 62; 2016, c. 90.

§ 32.1-176.6. Inspection.

The Department shall have the authority to conduct such inspections as it may find reasonably necessary to ensure that the construction work conforms to applicable construction standards.

1986, c. 401.

§ 32.1-176.7. Other agencies to cooperate with Department.

The Department of Housing and Community Development and the State Water Control Board shall cooperate fully and promptly with the Department of Health in the administration of this article.

1986, c. 401.

Article 2.2. Wells Near Certain Coal Ash Ponds.

§ 32.1-176.8. Definitions.

For the purposes of this article:

"Coal ash pond" means any natural topographic depression, man-made excavation, or diked area that (i) is designed to hold an accumulation of coal combustion residuals and liquids; (ii) treats, stores, or disposes of coal combustion residuals; and (iii) is located in the Chesapeake Bay Watershed at the Bremo Power Station in Fluvanna County, Chesapeake Energy Center in the City of Chesapeake, Chesterfield Power Station in Chesterfield County, or Possum Point Power Station in Prince William County.

"DEQ" means the Department of Environmental Quality.

"Utility" means the owner or operator of a coal ash pond.

2020, c. 845.

§ 32.1-176.8:1. Private well and public water supply well testing near coal ash ponds; monitoring.

A. For each private well or public water supply well within 1.5 miles of any coal ash pond, the utility shall commission a well water test on or before July 1, 2021, on behalf of the owner of the well. The test shall be conducted by a company certified to perform such tests by the Virginia Environmental Laboratory Accreditation Program. The utility shall recommend a certified laboratory to perform the test, but the owner of the well may elect to have an independent certified laboratory perform the test. Such test shall, at a minimum, test for alkalinity (bicarbonate), alkalinity (carbonate), alkalinity (total), aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, calcium, chloride, chromium (hexavalent), chromium (total), cobalt, copper, iron, lead, lithium, magnesium, manganese, mercury, molybdenum, nickel, potassium, radium (total alpha), radium-228, radium (radium-226 and radium-228 combined), selenium, sodium, strontium, sulfate, thallium, thorium, vanadium, zinc, and total dissolved solids. The utility shall pay the reasonable costs of such testing.

B. The utility shall commission a test as required by subsection A for each private well or public water supply well (i) once per year during each of the five years following the approval by DEQ of the closure of a coal ash pond and (ii) once every five years thereafter.

C. If any sampling, test, or water quality analysis conducted pursuant to the provisions of this section indicates that water from a private well or public water supply well exceeds any U.S. Environmental Protection Agency Maximum Contaminant Level for drinking water, the utility shall (i) within seven days of the receipt of test results, either replace the contaminated well with an alternate supply of potable drinking water or provide a treatment system for the contaminated well in order to render the water supply potable and (ii) within 90 days of the receipt of test results, either provide an alternate supply of water that is safe for other household uses or provide a treatment system for the contaminated well in order to render the water supply safe for other household uses. All costs associated with such provision of alternate supplies of water or treatment shall be borne by the utility. In lieu of providing an alternate supply of water or a treatment system pursuant to clause (i) or (ii) and to the extent service is available, the utility may elect to pay the costs of connecting the property owner to a water utility operated by a city or county.

D. The Department of Health and DEQ shall receive the results of the tests conducted pursuant to the provisions of this section.

E. Nothing in this section shall be construed to preclude or impair the right of any property owner to refuse the sampling or testing of any private well or public water supply well on his property. The requirements of this section are in addition to other applicable laws or regulations, and nothing in this section, including the requirement to commission testing or to treat or replace contaminated drinking water, shall preempt or preclude any additional legal action or remedy authorized by law.

2020, c. 845.

Article 3. Solid and Hazardous Waste Management.

§ 32.1-177. Repealed.

Repealed by Acts 1986, c. 492.

Article 4. Mosquito Control Districts.

§ 32.1-187. Counties, cities and towns may create mosquito control districts.

The governing body of any county, city or town, either alone or jointly with one or more other counties, cities or towns, may create one or more mosquito control districts. A mosquito control district may comprise the whole or any part of the county, city or town or combination thereof creating such district, except that no mosquito control district in a county shall include the territory within an incorporated town within such county except by agreement with such town.

Code 1950, § 32-379; 1950, p. 87; 1979, c. 711.

§ 32.1-188. Consolidation of districts.

The governing body of any city which has established more than one mosquito control district pursuant to § 32.1-187 may, by ordinance, consolidate such districts under a single commission which may function under the appropriate city department or other agency as determined by the local governing body.

Code 1950, § 32-379.1; 1973, c. 501; 1979, c. 711; 1981, c. 354; 2002, cc. 224, 233.

§ 32.1-189. Mosquito control commission; composition; appointment of members.

A. Each mosquito control district shall be administered by a commission of three members, one of whom shall be the Commissioner or his designee, except as provided for a consolidated city mosquito control commission in subsection B. The Commissioner or his designee shall serve as chairman of each such commission. Where a mosquito control district consists of territory wholly within one political subdivision, the governing body of that political subdivision shall appoint the other two members of the commission; where a mosquito control district shall consist of territory in two political subdivisions, the governing body of each such political subdivision shall appoint one member; and where any mosquito control district shall, by agreement between political subdivisions, consist of territory lying within more than two political subdivisions, the remaining two members of the commission for that district shall be appointed by the Commissioner from the residents of such district.

B. Notwithstanding the provisions of subsection A, in the event of consolidation of city mosquito control districts and commissions pursuant to § 32.1-188, such consolidated commission may consist of no more than fifteen commissioners, one of whom shall be the Commissioner or his designee who shall serve as the chairman of the consolidated city mosquito control commission.

Code 1950, § 32-380; 1979, c. 711; 2002, cc. 224, 233.

§ 32.1-190. Powers of commission; oath and terms of members; vacancies.

Each mosquito control commission district shall be a body politic and corporate and shall have all the powers necessary to carry into effect all of the provisions of this article. Each member of any such commission shall take and subscribe to the oath prescribed by § 49-1. The term of each commission member other than the Commissioner or his designee shall be four years and thereafter until his successor has been duly appointed and qualified. A vacancy other than by expiration of term shall be filled for the unexpired term by the authority originally making the appointment.

Code 1950, § 32-381; 1979, c. 711.

§ 32.1-191. Secretary of commission.

A mosquito control commission shall appoint its secretary either from the membership of such commission or otherwise and shall fix his compensation. The commission may require bond of its secretary in excess of the funds which may come into his hands and conditioned upon the faithful application of such funds.

Code 1950, § 32-382; 1979, c. 711.

§ 32.1-192. Further powers of commission.

Each mosquito control commission is empowered to employ all necessary personnel and to perform all acts necessary to control and eliminate mosquitoes in the district but such actions shall be subject to private property rights in the areas in which the work of the commission is performed.

Code 1950, § 32-383; 1979, c. 711.

§ 32.1-193. Eminent domain.

Each mosquito control commission is vested with the power of eminent domain to the extent necessary to carry out the provisions of this article. Condemnation proceedings shall be instituted and conducted in the name of the mosquito control commission for the district in which such property is located or the district for which its acquisition is deemed necessary and shall be conducted as prescribed by Chapter 2 (§ 25.1-200 et seq.) of Title 25.1.

Code 1950, § 32-384; 1979, c. 711; 2003, c. 940.

§ 32.1-194. Special tax authorized.

The governing body of any county, city or town, the whole or a part of whose territory is contained within a mosquito control district, is hereby authorized and empowered to levy annually a special tax upon all real and personal property subject to local taxation within the territory located within such county, city or town which is a part of such mosquito control district of not exceeding 25¢ per $100 of assessed valuation thereof, and all funds received from any tax levy so made shall be paid to the mosquito control commission for the mosquito control district in which the property subject to such levy is, and shall be expended by such mosquito control commission for the purposes authorized by this article.

Code 1950, § 32-385; 1979, c. 711.

§ 32.1-195. Contributions from Board.

The Board is hereby authorized to contribute annually to any mosquito control commission a sum not more than 25 percent of the gross amount obtained by such commission annually from any special tax levy authorized by this article or contributed to such commission annually by direct appropriation of any county, city, town or combination thereof, but any such amount so contributed by the Board shall not exceed $10,000 in any 1 year; except that where separate mosquito control commissions have been consolidated pursuant to § 32.1-188, such maximum amount shall be computed so as to allow a contribution to that consolidated district in an amount not less than was received prior to such consolidation by all of the separate districts.

Code 1950, § 32-386; 1974, c. 475; 1979, c. 711.

§ 32.1-196. Disposition of funds not needed for mosquito control.

Whenever funds accumulated by a mosquito control district are determined by the commission for such district to be no longer needed for the control of mosquitoes, such commission may transfer such funds as follows: (1) funds contributed by the Board, to the state treasury, (2) funds contributed by a county, city or town, to the treasury of such county, city or town, and (3) funds contributed by levy of a special tax upon property, to the treasury of the county, city or town wherein such property lies.

Code 1950, § 32-386.1; 1970, c. 391; 1979, c. 711.

§ 32.1-197. Compensation and expenses of members of commission.

The members of any mosquito control commission shall receive no salary for their services as such but shall receive necessary expenses incurred while actually engaged in discharge of their duties, to be paid out of the funds under the control of such commission; provided, however, that if any member shall be appointed secretary for his commission, he may be paid, and shall be entitled to receive, such compensation as the commission may determine.

Code 1950, § 32-387; 1979, c. 711.

Article 5. Public Gathering Places.

§ 32.1-198. Definitions.

As used in this article:

"Public gathering places" includes, but is not limited to:

(a) Historic shrines;

(b) Terminals of public transportation companies;

(c) Festivals, fairs, races and other places where 100 or more people congregate at one time.

Code 1950, § 32-63; 1979, c. 711; 1988, c. 60.

§ 32.1-199. Repealed.

Repealed by Acts 1988, c. 60.

§ 32.1-200. Regulations.

The Board may adopt such regulations governing toilet facilities, sewage disposal facilities and water supply facilities at public gathering places as may be necessary to protect the public health. Such regulations may include without limitation (i) a requirement that there be toilet facilities, sewage disposal facilities and water supply facilities and standards therefor; (ii) requirements that toilet facilities and all fixtures therein be kept clean and in a good state of repair; and (iii) a system of classifying public gathering places with different regulations for each such classification.

Code 1950, § 32-63; 1979, c. 711; 1988, c. 60.

§ 32.1-201. Free access to certain toilet facilities.

Public gathering places required by Board regulation to provide toilet facilities shall provide without charge at least one toilet for each sex.

Code 1950, § 32-63.2; 1977, c. 410; 1979, c. 711.

§ 32.1-202. Power of counties, cities and towns not limited.

Nothing contained in this article shall in any way limit the power of any county, city or town to regulate by ordinance sanitary conditions in service stations and public gathering places located therein, but no such ordinance may impose requirements less stringent than the regulations of the Board.

Code 1950, § 32-63; 1979, c. 711.

Article 6. Migrant Labor Camps.

§ 32.1-203. Definitions.

As used in this article:

"Camp operator" means a person who has charge, care or control of a migrant labor camp.

"Migrant labor camp" or "camp" means one or more structures, buildings, tents, barracks, trailers, vehicles, converted buildings, and unconventional enclosures of living space, reasonably contiguous, together with the land appertaining thereto, established, operated or used as living quarters for one or more persons, one or more of whom is a migrant worker engaged in agricultural or fishing activities, including related food processing. "Migrant labor camp" does not include (i) a summer camp, campground or hotel as defined in § 35.1-1, (ii) housing which, in the ordinary course of business, is regularly offered to the general public on a commercial basis and is provided to any migrant worker on the same or comparable terms and conditions as provided to the general public, or (iii) small businesses which are exempt under federal law as provided in the Fair Labor Standards Act and the Migrant and Seasonal Worker Protection Act.

"Migrant worker" means any individual from within or outside the Commonwealth who passes seasonally from one place to another for the purpose of employment, who is not a year-round employee and who occupies living quarters other than his permanent home during the period of such work.

"Applicable regulations" includes regulations of the Board adopted pursuant to this article and occupational safety and health regulations applicable to migrant labor camps adopted by the Safety and Health Codes Board pursuant to Chapter 3 (§ 40.1-22 et seq.) of Title 40.1.

Code 1950, § 32-415; 1962, c. 251; 1979, c. 711; 1988, c. 632; 1990, c. 780; 1992, c. 15.

§ 32.1-204. Notice of intention to construct, etc., camp.

Each person planning to construct, substantially remodel or enlarge for occupancy or use a migrant labor camp or any portion or facility thereof, or to convert a property for use or occupancy as a camp shall give notice in writing of his intent to do so to the Commissioner at least thirty days before the date of beginning such construction, remodeling, enlargement or conversion. The notice shall give the name of the city or county in which the property is located, the location of the property within that area, a brief description of the proposed construction, remodeling, enlargement or conversion, the name and mailing address of the person giving the notice and his telephone number, if any. Upon receipt of such notice, the Commissioner shall forward to such person a copy of this article and any applicable regulations.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-205. Permit required.

No person shall operate or cause to be operated a migrant labor camp without a permit nor shall any person allow a migrant labor camp without a permit to be occupied and used on property owned or controlled by such person. A separate permit shall be required for each camp and shall be posted at a place in the camp readily visible and accessible to the migrant workers.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-206. Application for permit.

Application for a permit to operate a migrant labor camp shall be made to the Commissioner at least thirty days before such camp is to be opened on a form prescribed by the Board. A separate application shall be submitted for each camp.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-207. Inspection; issuance of permit; permits nontransferable.

If, after inspection by the Commissioner or his designee, the Commissioner finds that the camp or the proposed operation of the camp for which an application is submitted pursuant to § 32.1-206 conforms or will conform to the provisions of this article and any applicable regulations, the Commissioner shall issue a permit for the operation of the camp. A permit shall not be transferable and shall expire on December 31 of each year.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-208. Provisional permits.

When the Commissioner determines that a camp for which a permit is sought does not, or the proposed operation thereof will not, comply with the provisions of this article and any applicable regulations and that the operation of the camp will not create an imminent danger to the public health and safety, the Commissioner may grant a provisional permit to operate such a camp upon such terms, requirements, or conditions as the Commissioner may prescribe until the requirements of this article and any applicable regulations are fully complied with. The term of any such provisional permit shall not exceed thirty days. No provisional permit shall be renewable.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-209. Denial, revocation or suspension of permits.

A. The Commissioner may deny, revoke or suspend a permit for a camp when the Commissioner determines that the camp or the proposed operation thereof does not conform to or is in violation of any provision of this article or any applicable regulations.

B. A new permit shall be issued upon application therefor when the camp is in compliance with the provisions of this article and any applicable regulations.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-210. Camp operator's responsibilities.

The camp operator shall be responsible for ensuring that the camp complies with the provisions of this article, any applicable regulations and all conditions stated in the permit issued for the camp.

Code 1950, § 32-416; 1962, c. 251; 1979, c. 711.

§ 32.1-211. Regulations.

A. The occupational, safety and health regulations of the Safety and Health Codes Board applicable to migrant labor camps shall be no more stringent than those actually enforced by the United States Department of Labor pursuant to federal law.

B. The Board may adopt regulations governing migrant labor camps which supplement the occupational safety and health regulations adopted by the Safety and Health Codes Board pursuant to Chapter 3 (§ 40.1-22 et seq.) of Title 40.1 and which are necessary to protect the health of migrant workers. Such regulations may include, but need not be limited to, standards governing:

1. The sites of camps.

2. The provision of an adequate and convenient supply of pure water as defined in § 32.1-167.

3. The disposal of sewage as defined in § 32.1-163.

4. The storage and disposal of solid waste.

5. The maintenance of the campgrounds.

6. The construction, maintenance, alteration or remodeling of buildings and structures for the housing of migrant workers and their families, including wash and bathrooms, central cooking facilities, central dining rooms, sleeping quarters, assembly rooms, lighting and ventilation.

Code 1950, §§ 32-417, 32-418, 32-420; 1962, c. 251; 1968, c. 396; 1979, c. 711.

Article 7. Bedding and Upholstered Furniture.

§ 32.1-212. Definitions.

As used in this article unless the context otherwise requires:

"Bedding" means any mattress, mattress pad, box spring, upholstered bed, davenport, upholstered sofa bed, quilted pad, comforter, bolster, cushion, pillow, featherbed, sleeping bag, or any other bag, case or cover made of leather, textile or other material which is stuffed or filled in whole or in part with concealed substance, which can be used by any human being for sleeping or reclining purposes.

"Filling material" means cotton, wool, feathers, kapok, down, plant or vegetable fibers, or any other material or substance or combination thereof, loose or in batting, pads, or any prefabricated form, that is used or that may be used in articles of bedding or upholstered furniture.

"Importer" means any person who for the purpose of manufacture or resale receives bedding, upholstered furniture or filling material from any country other than the United States.

"New" means not previously used for any purpose. Manufacturing processes shall not be considered a prior use.

"Sanitize" means to reduce the level of microbiological agents to a level not injurious to health.

"Secondhand" means having been made prior use of or containing any filling material of which prior use has been made.

"Shoddy" means any material which has been spun into yarn, knit or woven into fabric and subsequently cut up, torn up, broken or ground up.

"Sterilize" means to render free of viable microbiological agents.

"Upholstered furniture" means any article of furniture designed to be used for sitting, resting, or reclining that is wholly or partly stuffed or filled with any filling material.

Code 1950, § 32-117; 1952, c. 530; 1956, c. 530; 1979, c. 711; 2005, c. 391.

§ 32.1-213. Shoddy, secondhand filling material, feathers, animal hair and down to be sanitized.

No person shall use in the making, remaking, reupholstering or renovating of any bedding or upholstered furniture any shoddy or any fabric from which shoddy is made or any secondhand filling material or any secondhand feathers, animal hair or down, unless such shoddy, secondhand filling material, feathers, hair or down has been sanitized by a reasonable process approved by the Commissioner.

Code 1950, § 32-118; 1952, c. 530; 1979, c. 711.

§ 32.1-214. New animal hair, feathers and down to be sterilized.

No person shall use in the making, remaking, reupholstering or renovating of any bedding or upholstered furniture any new animal hair, new feathers or new down unless such new animal hair, new feathers or new down shall have been sterilized by a reasonable process approved by the Commissioner.

1979, c. 711.

§ 32.1-215. Disposal restricted.

No person engaged in commerce shall rent, offer or expose for sale, barter, give away, or dispose of in any other commercial manner any article of bedding or upholstered furniture made, remade, reupholstered, or renovated in violation of § 32.1-213 or 32.1-214 or any secondhand article of bedding or upholstered furniture unless since last used such secondhand article has been sanitized by a reasonable process approved by the Commissioner. However, a retailer may sell, give away, or rent used upholstered furniture when the used upholstered furniture has been purchased by the retailer as new furniture and has been used in the course of business. Such used furniture shall be (i) conspicuously identified as used furniture and (ii) reduced in price, sold at auction, donated to charity, or made available for a rental fee, and so tagged.

Code 1950, § 32-119; 1952, c. 530; 1956, c. 530; 1979, c. 711; 2005, c. 391.

§ 32.1-216. Permit for use of process to sanitize or sterilize.

Any person applying for approval of a process by which filling materials, bedding or upholstered furniture are sanitized or sterilized shall submit to the Commissioner a description of the process and any apparatus and method to be used in such process. Upon approval of such process by the Commissioner and payment of the current annual permit fee by the applicant, a numbered permit for use of such process shall be issued. Such permit shall expire one year from the date of issue. Nothing herein shall prevent any person from having any sanitizing or sterilization required by this article performed by any person who has a valid permit for such purposes, provided the number of such permit appears on the tag attached to each article as required by § 32.1-219.

Code 1950, § 32-120; 1976, c. 317; 1979, c. 711.

§ 32.1-217. License and registration number; renewal; licenses not transferable; responsibility of branch factories.

A. Every importer and every person manufacturing, renovating or reupholstering any bedding or upholstered furniture or processing or selling any filling material to be used in articles of bedding or upholstered furniture shall first obtain a license from the Commissioner for each place of business, subsidiary or branch operated by him for such purpose. Such license shall be numbered, shall expire one year from the date of issue, shall be renewable annually unless sooner revoked and shall not be transferable. Each branch, branch factory and subsidiary shall be responsible for the contents and for the tagging, as provided in this article, of items of bedding and upholstered furniture made, remade, renovated, reupholstered or imported by it and offered for sale or use in the Commonwealth.

B. The Commissioner shall assign a registration number to each licensee.

Code 1950, § 32-120.1; 1954, c. 666; 1956, c. 530; 1970, c. 578; 1976, c. 317; 1979, c. 711.

§ 32.1-218. Fees.

The Board shall set the annual fees imposed for licenses and permits issued pursuant to this article. All fees collected shall be deposited and held by the Department in a separate fund, from which shall be paid all expenditures necessary in carrying out the provisions of this article.

Code 1950, § 32-120.1; 1954, c. 666; 1956, c. 530; 1970, c. 578; 1976, c. 317; 1979, c. 711.

§ 32.1-219. Tags required.

A. Every importer of and every person manufacturing a new item of bedding or upholstered furniture shall attach securely thereto a substantial white cloth tag or equivalent, visible on the outside covering of such item and not less than six square inches in size, upon which shall be plainly stamped or printed, in English, the name and address of the manufacturer, importer or distributor, the registration number of the manufacturer or importer, the kind of filling materials used therein, a statement that the filling materials are new, and the number of the permit issued to the person sterilizing any new feathers, hair or down in such item.

B. Any person sanitizing, remaking, renovating or reupholstering any secondhand item of bedding or upholstered furniture or manufacturing any item of bedding or upholstered furniture containing any shoddy or secondhand filling material shall attach securely to it a substantial yellow cloth tag or equivalent, visible on the outside of such item and not less than six square inches in size, upon which shall be stamped or printed, in English, the kind of filling materials used therein, a statement that the item or filling materials are secondhand, and the number of the permit issued to the person who sanitized such item or filling material.

C. The stamp or print on tags required by this section shall be in type not less than three millimeters in height.

Code 1950, § 32-122; 1952, c. 530; 1979, c. 711.

§ 32.1-220. Same; filling material.

Any person shipping or delivering filling material, however contained, shall have conspicuously attached thereto a tag upon which shall be stamped or printed, as provided in § 32.1-219 or as provided by the regulations of the Board, the kind of material, whether the material is new or secondhand, the name, address and registration number of the manufacturer or importer and the permit number of the person who sterilized or sanitized such material.

Code 1950, § 32-122.1; 1956, c. 530; 1979, c. 711.

§ 32.1-221. Offenses as to tags.

A. It shall be unlawful to use any false or misleading statement, term or designation on any tag required by this article or to remove, deface or alter, or to attempt to remove, deface or alter any such tag or the statement of filling materials made thereon, prior to retail sale.

B. No person shall use or have in his possession with intent to use any tag provided for in this article unless such person holds a license or permit issued to him pursuant to this article. No person shall sell, give or in any way provide such tags to anyone who does not have a license or permit issued to him pursuant to this article.

Code 1950, § 32-125; 1954, c. 666; 1979, c. 711.

§ 32.1-222. Return of improperly tagged items; payment of costs of return; failure to pay costs.

Upon a complaint made to the Commissioner as provided in § 32.1-224, the Commissioner may order the return of any item of bedding or upholstered furniture or any filling material made, remade, renovated, reupholstered, prepared, processed, tagged or not tagged in violation of the provisions of this article to the manufacturer or importer thereof. The manufacturer or importer shall be liable to the person returning such item for the costs of crating, shipping and the invoice price to the purchaser. Failure of a manufacturer or importer to pay such costs to the person returning such item shall be grounds for revocation or suspension of a license issued pursuant to this article.

1979, c. 711; 2003, c. 1003.

§ 32.1-223. New and sanitized items to be kept separate.

New and sanitized upholstered furniture, bedding and filling materials shall be kept separate from any secondhand upholstered furniture, bedding and filling materials that have not been sanitized.

1979, c. 711.

§ 32.1-224. Administration and enforcement by Commissioner; refusal, suspension or revocation of license or permit.

The Commissioner is charged with the administration and enforcement of this article, except as otherwise provided in this article. Only upon a complaint made to the Commissioner relating to a violation of this article may the Commissioner inspect the premises of a holder of a license or permit issued by the Commissioner. The Commissioner may refuse to issue, may suspend or may revoke the license or permit of any person (i) who violates any provision of this article, any regulation of the Board pursuant to this article or any order of the Board or Commissioner or (ii) who is not a resident of the Commonwealth and fails or refuses to enter an appearance in any circuit court in the Commonwealth to answer a charge or charges of violation of any provision of this article, regulation of the Board or order of the Board or Commissioner within 25 days after service upon him of a notice by certified mail.

Code 1950, § 32-126; 1952, c. 530; 1979, c. 711; 2003, c. 1003.

§ 32.1-225. Exemptions.

A. The provisions of this article shall not apply to:

1. Any items of bedding or upholstered furniture sold under the order of any court or pursuant to § 55.1-2902, any sale of a decedent's estate or any sale by any individual of his household effects.

2. Any interstate public carrier.

3. Any state institution, agency or department unless such institution, agency or department offers for sale to the public items of bedding or upholstered furniture manufactured, reupholstered or renovated by it.

4. Any retailer who sells, gives away, or rents used upholstered furniture that has been purchased by the retailer as new furniture and has been used in the course of business when such used furniture has been (i) conspicuously identified as used furniture and (ii) reduced in price, sold at auction, donated to charity, or made available for a rental fee, and so tagged.

B. Any person who sells at retail, exclusively on a consignment basis, articles of bedding that are handmade by individuals and whose gross annual receipts from the sale of such articles are not in excess of $2,000 shall be deemed to be the manufacturer of such articles and shall not be required to obtain a license to make such articles. Each such article shall have a label affixed stating the kind of filling materials used in such article but shall be exempt from any other requirement as to tags set forth in this article.

Code 1950, § 32-127; 1979, c. 711; 1989, c. 130; 2001, c. 454; 2005, c. 391.

§ 32.1-226. Violation a misdemeanor; application of the Virginia Consumer Protection Act.

A. Any person violating any provision of this article or any regulation of the Board adopted pursuant to this article shall be guilty of a Class 2 misdemeanor.

B. Additionally, any violation of the provisions of this article or regulations of the Board shall constitute a prohibited practice in accordance with § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).

Code 1950, § 32-129; 1952, c. 530; 1954, c. 666; 1956, c. 530; 1979, c. 711; 2003, c. 1003.

Article 8. Radiation Control.

§ 32.1-227. Definitions.

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

1. "By-product material" means:

a. Any radioactive material, except special nuclear material, yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material;

b. The tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily of its source material content;

c. Any discrete source of radium-226 that is produced, extracted, or converted after extraction for use for a commercial, medical, or research activity;

d. Any material that has been made radioactive by use of a particle accelerator and is produced, extracted, or converted after extraction for use for a commercial, medical, or research activity; and

e. Any discrete source of naturally occurring radioactive material (NORM), other than source material that the Nuclear Regulatory Commission (NRC), in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security, that is extracted, or converted after extraction, for use for a commercial, medical, or research activity.

2. "General license" means a license effective under regulations promulgated by the Board without the filing of an application with the Department or the issuance of licensing documents to particular persons to transfer, acquire, own, possess, or use quantities of, or devices or equipment utilizing, radioactive material.

3. "Ionizing radiation" means gamma rays and X-rays, alpha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles.

4. "Person" means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, department of the Commonwealth other than the Department of Health, political subdivision of the Commonwealth, any other state or political subdivision or department thereof, and any legal successor, representative, agent, or department of the foregoing, but not including federal government agencies.

5. "Radiation emergency" means any situation, excluding events resulting from nuclear warfare, which involves the possibility of accidental release of ionizing radiation that may pose a threat to the safety and health of any citizen of this Commonwealth.

6. "Radioactive material" means any material that emits ionizing radiation spontaneously.

7. "Source material" means uranium or thorium, or any combination thereof, in any physical or chemical form; or ores that contain by weight one-twentieth of one percent (0.05 percent) or more of uranium, thorium, or any combination thereof. Source material does not include special nuclear material.

8. "Special nuclear material" means (i) plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the United States Nuclear Regulatory Commission or any successor thereto has determined to be such but does not include source material; or (ii) any material artificially enriched by any of the foregoing but not including source material.

9. "Specific license" means a license, issued to a named person upon application filed under the regulations promulgated pursuant to this article, to use, manufacture, produce, transfer, receive, acquire, or possess quantities of, or devices or equipment utilizing, radioactive material.

Code 1950, § 32-414.3; 1964, c. 158; 1975, c. 563; 1979, c. 711; 2008, cc. 41, 466.

§ 32.1-228. Exemption.

The provisions of this article shall not apply to radioactive materials or facilities, including nuclear reactors that are subject to exclusive licensing and regulation by the United States Nuclear Regulatory Commission.

Code 1950, § 32-414.7; 1964, c. 158; 1979, c. 711; 2008, cc. 41, 466.

§ 32.1-228.1. Department designated state radiation control agency; powers and duties.

A. The Department of Health is hereby designated as the state radiation control agency. The Commissioner of Health may employ, compensate, and prescribe the duties of such individuals as may be necessary to discharge the responsibilities imposed by this article.

B. The Department shall:

1. Collect and disseminate information relating to control of sources of radiation including:

a. Establishing and maintaining a file of all applications for, issuances, denials, transfers, renewals, modifications, suspensions and revocations of, and amendments to all licenses;

b. Establishing and maintaining a file of registrants possessing sources of radiation requiring registration under the provisions of this article and any administrative or judicial action pertaining thereto; and

c. Establishing and maintaining a file of all agency rules and regulations related to regulation of sources of radiation, pending or promulgated, and proceedings thereon.

2. Establish a database of registered and certified X-ray machines, which shall include but not be limited to the name of the owner or operator and the location of the machine.

3. Pursuant to its powers enumerated in § 32.1-25, provide for scheduled and random unannounced inspections of facilities and physicians' offices that provide mammography services to ensure compliance with laws, regulations, or conditions specified by the Board.

4. Establish forms for the periodic Radiation Inspection Report.

5. Develop programs for responding adequately to radiation emergencies and coordinate such programs with the Department of Emergency Management.

6. Make available to the public a list of persons who are certified as professionals to offer screening, testing, or mitigation for radon pursuant to § 32.1-229.01.

7. Publish and make available a list of qualified inspectors of X-rays and X-ray machines.

2008, cc. 41, 466; 2015, c. 298.

§ 32.1-229. Powers and duties of the Board.

The Board shall:

1. Establish a program of effective regulation of sources of radiation for the protection of the public health and safety, including a program of education and technical assistance relating to radon that is targeted to those areas of the Commonwealth known to have high radon levels. As a part of such program, a list of persons who are nationally certified to offer screening, testing, or mitigation for radon shall be made available to the public.

2. Establish a program to promote the orderly regulation of radiation within the Commonwealth, among the states and between the federal government and the Commonwealth and to facilitate intergovernmental cooperation with respect to use and regulation of sources of radiation to the end that duplication of regulation may be minimized.

3. Establish a program to permit maximum utilization of sources of radiation consistent with the public health and safety.

4. Promulgate regulations providing for (i) general or specific licenses to use, manufacture, produce, transfer, receive, acquire, own or possess quantities of, or devices or equipment utilizing, by-product, source, special nuclear materials, or other radioactive material occurring naturally or produced artificially, (ii) registration of the possession of a source of radiation and of information with respect thereto, and (iii) regulation of by-product, source and special nuclear material.

5. Encourage, participate in and conduct studies, investigations, training, research and demonstrations relating to control of sources of radiation.

6. Establish fee schedules for the licensure of radioactive materials.

7. Establish guidelines to require the licensed facilities or physicians' offices where mammography services are performed to offer to the patient, prior to departure, development of such films to ensure integrity and quality of the film. When film developing is not available or the patient chooses not to wait, the patient shall be notified within two business days if another mammogram is necessary. This requirement does not imply or require that a diagnostic opinion be made at the time of the mammogram. The interpreting physician may require that the mammogram be retaken if, in the opinion of the physician, the study is of inadequate quality. Such guidelines shall also require the licensed facility or physician's office where mammography services are performed to (i) include information on breast density in mammogram letters sent to patients pursuant to regulations implementing the Mammography Quality Standards Act promulgated by the U.S. Food and Drug Administration, and (ii) include in letters sent to patients determined by the interpreting physician to have heterogeneously dense or extremely dense tissue, as defined in nationally recognized guidelines or systems for breast imaging reporting of mammography screening, including the Breast Imaging Reporting and Data System (BI-RADS) of the American College of Radiology, and any equivalent new terms, as such guidelines or systems are updated, the following notice:

"YOUR MAMMOGRAM DEMONSTRATES THAT YOU HAVE DENSE BREAST TISSUE. DENSE BREAST TISSUE IS VERY COMMON AND IS NOT ABNORMAL. HOWEVER, DENSE BREAST TISSUE CAN MAKE IT HARDER TO FIND CANCER ON A MAMMOGRAM AND MAY ALSO BE ASSOCIATED WITH AN INCREASED RISK OF BREAST CANCER.

THIS INFORMATION IS GIVEN TO YOU TO RAISE YOUR AWARENESS. USE THIS INFORMATION TO TALK TO YOUR DOCTOR ABOUT YOUR OWN RISKS FOR BREAST CANCER. AT THAT TIME, ASK YOUR DOCTOR IF MORE SCREENING TESTS MIGHT BE USEFUL BASED ON YOUR RISK.

A REPORT OF YOUR MAMMOGRAPHY RESULTS HAS BEEN SENT TO YOUR REFERRING PHYSICIAN'S OFFICE, AND YOU SHOULD CONTACT YOUR PHYSICIAN IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THIS REPORT."

8. Issue such orders or modifications thereof as may be necessary in connection with proceedings under this title.

Code 1950, §§ 32-414.2, 32-414.4, 32-414.6, 32-414.7, 32-414.16; 1964, c. 158; 1968, c. 314; 1975, c. 563; 1979, c. 711; 1987, c. 666; 1988, c. 736; 1989, cc. 275, 283; 1999, c. 755; 2000, cc. 271, 936; 2001, cc. 408, 426; 2003, c. 635; 2008, cc. 41, 466; 2012, cc. 6, 125; 2013, c. 282; 2019, c. 279.

§ 32.1-229.01. Companies listed as proficient to perform radon screening, testing, or mitigation; compliance.

A. No person shall conduct or offer to conduct any radon screening, testing, or mitigation in the Commonwealth unless he (i) is listed as a professional by either the National Radon Proficiency Program or the National Radon Safety Board or (ii) meets any other proficiency measures deemed acceptable by the U.S. Environmental Protection Agency or the Board of Health for the purpose of offering such screening, testing, or mitigation.

B. Any person conducting or offering to conduct radon screening, testing, or mitigation in the Commonwealth pursuant to subsection A shall comply with (i) the radon testing standards outlined in the U.S. Environmental Protection Agency's publication EPA 402-R-92-003, as revised; (ii) the radon mitigation standards outlined in the American Society for Testing and Materials (ASTM International) Standard E-2121-13, as revised; or (iii) any other radon testing and mitigation standards deemed acceptable by virtue of reference by the U.S. Environmental Protection Agency or the Board.

1988, c. 736; 1989, cc. 275, 283; 2001, cc. 408, 426; 2003, c. 709; 2005, c. 839; 2008, cc. 41, 466; 2015, c. 298.

§ 32.1-229.01:1. Action for damages.

Any person who engages or otherwise uses the radon screening, testing, or mitigation services of a person misrepresenting his proficiency listing to conduct such services as described in § 32.1-229.01 may bring an action to recover the greater of (i) actual damages sustained, together with costs and reasonable attorneys' fees, or (ii) $100.

1993, c. 765.

§ 32.1-229.1. Inspections of X-ray machines required; Radiation Inspection Reports; fees; qualification of inspectors.

A. All X-ray machines shall be registered with the Department.

B. Every owner or operator of an X-ray machine shall request an initial inspection by a private inspector or a Department inspector no later than 30 days after the installation of the equipment.

Inspections shall be performed periodically on a schedule prescribed by the Board. The Department may also require random, unannounced, follow-up inspections of machines that were inspected by private inspectors in order to maintain quality control. In the event of changes in or installations of new equipment during the last 90 days of a period for which an inspection has been made, no interim inspection shall be required. In addition, the Department may require the inspection and certification of other machines emitting radiation or utilizing radiation for patients, consumers, workers, or the general public.

Inspections shall be performed by Department personnel or by private inspectors only. Inspections conducted by private inspectors shall be conducted in conformance with the regulations of the Board and reports on these inspections shall be filed by the registrant with the Department on forms prescribed by the Department. Results of all inspections shall be reviewed by the Department.

C. The Department shall issue a certificate for a diagnostic or therapeutic X-ray machine, or X-ray machine not used in the healing arts, when the results of the inspection indicate the machine meets the Board's standards. If the machine does not meet the Board's standards, the certification may be denied. If the certification is denied, the machine shall not be used for treatment, diagnosis, evaluation of patients, whether human or animal, or any other use until the standards of the Board have been met. A copy of the certificate shall be displayed by the registrant in a conspicuous place in close proximity to the X-ray machine.

D. The Board shall, in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), promulgate such regulations as the Board deems necessary to protect the health and safety of health care workers, patients, and the general public, including but not limited to:

1. Fee schedules for registration of X-ray machines;

2. Schedule for inspections of X-ray machines;

3. Fee schedules for inspections of X-ray machines by Department personnel; however, no fee shall be charged for inspections initiated by the Department;

4. Standards for certification of X-ray machines; and

5. Qualifications for private inspectors of X-ray machines required for inclusion on a list of qualified inspectors of X-ray machines published pursuant to § 32.1-228.1, a requirement for annual registration as a private inspector of X-ray machines for inclusion on such list, and a fee not to exceed $150.00 for such registration.

E. The provisions of this section and of §§ 32.1-229 and 32.1-229.2 relating to X-ray machines and machines emitting or utilizing radiation shall not apply to devices purchased or used primarily for personal, family, or household purposes.

1987, c. 666; 2008, cc. 41, 466; 2016, c. 685.

§ 32.1-229.2. Costs of inspection conducted by Health Department; fees to be used to support program.

In order to minimize competition with the private sector, the fee schedule developed by the Board for routine inspections of X-ray machines by Department of Health inspectors shall include all reasonable costs of such inspections.

1987, c. 666; 2008, cc. 41, 466.

§ 32.1-229.3. Licensing of radioactive material.

A. All radioactive material not under the authority of the United States Nuclear Regulatory Commission, and devices or equipment utilizing such material, shall be licensed by the Board. The Board shall promulgate regulations that provide for general or specific licenses. The Board may require registration or licensing of any other source of radiation and may exempt certain sources of radiation, uses of radiation, or users of radiation from the licensing and registration requirements set forth in this article when the Commissioner finds that the exemption of such sources, uses, or users of radiation will not constitute a significant risk to the health and safety of the public. The terms and conditions of all licenses shall be subject to amendment, revision, or modification by rules, regulations, or orders issued in accordance with the provisions of this article.

B. Regulations promulgated under this article should provide for recognition of other Agreement State or federal licenses, subject to such requirements as the Board may prescribe.

C. It shall be unlawful for any person to use, manufacture, produce, distribute, sell, transport, transfer, install, repair, receive, acquire, own, or possess any source of radiation unless licensed by or registered with the Department in conformance with this article and any regulations promulgated by the Board pursuant to this article.

2008, cc. 41, 466.

§ 32.1-230. Further powers of Board.

The Board shall have the power, subject to the approval of the Governor:

1. To acquire by purchase, exercise of the right of eminent domain, grant, gift, devise or otherwise, the fee simple title to or any acceptable lesser interest in any lands, selected in the discretion of the Board as constituting necessary, desirable or acceptable sites for ionizing radiation control projects of the Board, including any and all lands adjacent to a project site as in the discretion of the Board may be necessary or suitable for restricted areas; but in all instances lands which are to be designated as radioactive waste material sites shall be acquired in fee simple absolute and dedicated in perpetuity to such purpose.

2. To convey or lease, for such term as in the discretion of the Board may be in the public interest, any lands so acquired, either for a fair and reasonable consideration or solely or partly as an inducement to the establishment or location in the Commonwealth of any scientific or technological facility, project, satellite project or nuclear storage area; but subject to such restraints as may be deemed proper to bring about a reversion of title or termination of any lease in the event the grantee or lessee, as the case may be, shall cease to use the premises or facilities in the conduct of business or activities consistent with the purposes of this article; provided, however, radioactive waste material sites may be leased but may not otherwise be disposed of except to another department, agency or institution of the Commonwealth or to the United States.

3. To assume responsibility for perpetual custody and maintenance of radioactive materials held for custodial purposes at any publicly or privately operated facility located within the Commonwealth in the event the parties operating such facilities abandon their responsibility and whenever the federal government or any of its agencies has not assumed the responsibility. In such event, the Board may collect fees from private or public parties holding radioactive materials for perpetual custodial purposes in order to finance such perpetual custody and maintenance as the Board may undertake; provided, that the fees shall be sufficient in each individual case to defray the estimated cost of the Board's custodial management activities for that individual case. All such fees, when received by the Board, shall be credited to a special fund of the Department, shall be used exclusively for maintenance costs or for otherwise satisfying custodial and maintenance obligations and are hereby appropriated for such purpose.

4. To enter into an agreement with the federal government or any of its authorized agencies to assume perpetual maintenance of lands donated, leased, or purchased from the federal government or any of its authorized agencies and used for development of atomic energy resources or used as custodial sites for radioactive material.

Code 1950, § 32-414.4; 1964, c. 158; 1968, c. 314; 1975, c. 563; 1979, c. 711.

§ 32.1-231. Bonds of licensees.

A. The Board is authorized to require bonds of licensees. A bond shall be forfeited when the public health and safety is endangered by ionizing radiation due to the abandonment by a licensee of a licensed activity or licensed materials or due to a violation of law by a licensee. Each bond so forfeited shall be credited to a special fund on the books of the Department called the Radiation Reclamation Fund and shall be expended as necessary to restore to a safe condition the site where the licensed activity is or was conducted or the licensed materials are located.

B. The Board shall adopt regulations for determining the amount of each bond based upon the potential for contamination and injury by the licensed activity or material, the cost of disposal of the licensed material and the cost of restoring the site of the licensed activity to a safe condition.

C. No state, local or other governmental agency shall be required to file a bond. The Board may, by regulation, provide for the exemption of classes of licensees from bonding requirements if such classes present no significant risk to the public health and safety.

D. An acceptable bond for the purposes of this section shall be a bond issued by a fidelity or surety company authorized to do business in Virginia, a personal bond secured by such collateral as the Board may require or a cash bond.

Code 1950, § 32-414.4:1; 1976, c. 652; 1979, c. 711.

§ 32.1-232. Radioactive Material Perpetual Care Trust Fund.

A. The Board may require a licensee to deposit funds on an annual basis in a trust fund which shall be known as the Radioactive Material Perpetual Care Trust Fund, when the Board determines that it is probable that the licensee may cease to operate a licensed facility thereby leaving a site containing or associated with licensable radioactive material which will require maintenance, surveillance or other care on a continuing basis.

B. In order to provide for such maintenance, surveillance or other care, the Board may acquire any such site pursuant to § 32.1-230.

C. The Board may by lease with or license to any person provide for the maintenance, surveillance or other care of any such site. Any lessee or licensee operating under the provisions of this section shall be subject to § 32.1-231.

D. Each deposit of funds required of a licensee shall be in such amount that interest on the sum of all funds reasonably anticipated as payable by such licensee shall provide an annual amount equal to the anticipated reasonable costs necessary to maintain, monitor and otherwise supervise and care for the site as required in the interest of public health and safety. In arriving at the amount of funds to be deposited, the Board shall consider the nature of the licensed material, size and type of activity, estimated future receipts and estimated future expenses of maintenance, monitoring, and supervision.

E. All accrued interest on funds deposited in the Radioactive Material Perpetual Care Trust Fund is hereby appropriated to the Board and may be expended by the Board to acquire, monitor, maintain, supervise and care for such sites as required to protect the public health and safety on a continuing basis.

F. If a person licensed by any government agency other than the Commonwealth desires to transfer a site to the Board for the purpose of administering or providing perpetual care and if the Board accepts such transfer, a lump-sum deposit shall be made to the Perpetual Care Trust Fund. The amount of such deposit shall be determined by the Board taking into consideration the factors stated in subsection D of this section.

Code 1950, § 32-414.4:2; 1976, c. 652; 1979, c. 711.

§ 32.1-232.1. Special Trust Fund for Radioactive Materials Facility Licensure and Inspection created.

There is hereby created in the Department of the Treasury a special nonreverting fund known as the Special Trust Fund for Radioactive Materials Facility Licensure and Inspection, hereinafter referred to as the "Fund." The Fund shall be established on the books of the Comptroller, and any moneys remaining in the Fund at the end of the biennium shall not revert to the general fund but shall remain in the Fund. All deposits of fees collected pursuant to subdivision 6 of § 32.1-229 shall be paid into the Department of the Treasury and credited to the Fund; in addition, the Fund shall consist of such funds as may be appropriated for the purpose of licensure and inspection of radioactive materials facilities, and such gifts, donations, grants, bequests, and other funds as may be received on its behalf. Interest earned on such moneys shall remain in the Fund and be credited to it. Moneys in the Fund shall be used solely to support the Department of Health's program for licensure and inspection of radioactive materials facilities as provided in this article and Board of Health regulations. Disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request of the Commissioner of Health.

1999, c. 755; 2008, cc. 41, 466.

§ 32.1-233. Radiation Advisory Board; composition; duties generally.

A. The Radiation Advisory Board shall consist of ten appointive members and the six ex officio members specified below. The Governor shall appoint to the Advisory Board individuals from industry, labor and agriculture as well as individuals with scientific training in one or more of the following fields: radiology, medicine, radiation or health physics, or related sciences, with specialization in ionizing radiation. Not more than two individuals shall be specialists in any one of the above-named fields. Members of the Advisory Board shall serve at the pleasure of the Governor. The Commissioner shall be an ex officio member and chairman of the Advisory Board. The Commissioner of Labor and Industry, the Commissioner of Agriculture and Consumer Services, the State Coordinator of Emergency Management, the Director of Environmental Quality, and the Director of the Virginia Institute of Marine Science shall be ex officio members of the Advisory Board.

B. The Advisory Board shall meet at least annually and shall:

1. Review and evaluate policies and programs of the Commonwealth relating to ionizing radiation; and

2. Make recommendations to the Commissioner and the Board of Health, the Director of Environmental Quality, and the Virginia Waste Management Board and furnish such technical advice as may be required, on matters relating to development, utilization and regulation of sources of ionizing radiation.

Code 1950, § 32-414.5; 1964, c. 158; 1979, c. 711; 1980, c. 728; 1985, c. 448; 1987, c. 157; 2008, cc. 41, 466.

§ 32.1-234. Repealed.

Repealed by Acts 1987, c. 666.

§ 32.1-234.1. Enforcement.

A. Whenever the Department finds, following inspection and examination, that a source of radiation as constructed, operated, or maintained results in a violation of this article or of any regulations promulgated pursuant to this article, the Department shall:

1. Notify the person in control of the source of radiation as to the nature of the violation; and

2. Specify a time frame for termination or abatement of the violation, including a deadline by which the source of the violation shall be reconstructed, operated, or maintained in compliance with this article and any regulations promulgated pursuant to this article.

B. Upon failure to comply with the time frame specified by the Department for termination or abatement of the violation, the Department may revoke the license, and pursue penalties or enforcement in accordance with § 32.1-27.

C. Whenever, in the judgment of the Department, any person has engaged in or is about to engage in any acts or practices that constitute or will constitute an emergency, hazard to health and safety, or a violation of any provision of this article or any rule, regulation, or order issued thereunder, and at the request of the Commissioner, the Attorney General may make application to the appropriate court for an order enjoining such acts or practices, or for an order directing compliance, and upon a showing by the Department that such person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.

D. In addition to the provisions of § 32.1-27, any person who violates the provisions of this article or any order or regulation adopted pursuant thereto shall, upon a finding by a court of competent jurisdiction, be assessed a civil penalty of not more than $10,000 for each day of such violation. All penalties arising under this section shall be recovered in a civil action brought by the Attorney General in the name of the Commonwealth. Civil penalties collected pursuant to this section shall be paid into the state treasury and credited to the Radioactive Material Perpetual Care Trust Fund created pursuant to § 32.1-232.

E. In addition to the provisions of § 32.1-25, the Department shall have the power to enter at all reasonable times, or in cases of an emergency, upon any private or public property for the purpose of determining whether or not there is compliance with or violation of the provisions of this article and rules and regulations issued thereunder, except that entry into areas under the jurisdiction of the federal government shall be effected only with the concurrence of the federal government or its duly designated representative.

2008, cc. 41, 466.

§ 32.1-235. Authority of Governor to enter into agreements with federal government; effect on federal licenses.

A. The Governor is authorized, subject to the appropriation of funds, to enter into agreements with the federal government providing for discontinuance of the federal government's responsibilities with respect to sources of ionizing radiation and the assumption thereof by this Commonwealth.

B. Any person who, on the effective date of an agreement under subsection A, except those exempted under § 32.1-228, possesses a license issued by the federal government shall be deemed to possess the same pursuant to this article. Such license shall expire either ninety days after receipt of a notice from the Department of expiration of such license or on the date of expiration specified in the federal license, whichever is earlier.

Code 1950, § 32-414.11; 1964, c. 158; 1974, c. 300; 1979, c. 711; 1999, c. 755; 2008, cc. 41, 466.

§ 32.1-236. Authority of Board to enter into agreements with federal government, other states or interstate agencies; training programs for personnel.

A. The Board, with the prior approval of the Governor, is authorized to enter into an agreement or agreements with the federal government, other states or interstate agencies, whereby this Commonwealth will perform, on a cooperative basis with the federal government, other states or interstate agencies, inspections or other functions relating to control of sources of ionizing radiation.

B. The Board, from funds provided by law, may institute programs for the purpose of training personnel to carry out the provisions of this article and, with the prior approval of the Governor, may make such personnel available for participation in any program or programs of the federal government, other states or interstate agencies in furtherance of this article.

Code 1950, § 32-414.12; 1964, c. 158; 1979, c. 711.

§ 32.1-237. Effect upon local ordinances, etc.

Ordinances, resolutions or regulations, now or hereafter in effect, of the governing body of a county or city relating to by-product, source and special nuclear materials shall not be superseded by this article, provided that such ordinances or regulations are and continue to be consistent with the provisions of this article, amendments thereto and regulations thereunder.

Code 1950, § 32-414.13; 1964, c. 158; 1979, c. 711.

§ 32.1-238. Impounding sources of ionizing radiation.

The Department is authorized, in the event of an emergency or under other circumstances constituting a hazard to health and safety, to impound or order the impounding of sources of ionizing radiation in the possession of any person who is not equipped to observe or fails to observe the provisions of this article or any regulations issued thereunder.

Code 1950, § 32-414.17; 1964, c. 158; 1979, c. 711; 2008, cc. 41, 466.

Article 8.1. Mid-Atlantic Interstate Low-Level Radioactive Waste Compact.

§ 32.1-238.1. Repealed.

Repealed by Acts 1986, c. 492.

Article 8.2. Southeast Interstate Low-Level Radioactive Waste Management Compact.

§ 32.1-238.6. Repealed.

Repealed by Acts 1983, c. 213.

§ 32.1-238.6:1. Repealed.

Repealed by Acts 1988, c. 891.

Article 9. Toxic Substances Information.

§ 32.1-239. Definitions.

As used in this article the following definitions shall apply:

"Commercial establishment" means any commercial or industrial establishment, mill, factory, plant, refinery and any other works in which any chemical substance is manufactured or used as a raw material, catalyst, final product or process solvent for such; however, this term shall not be construed in the administration of this act to include normal farming and timbering activities.

"Manufacturing" means producing, formulating, packaging or diluting any substance for commercial sale or resale.

"Person" includes, in addition to the entities enumerated in § 32.1-3, the Commonwealth and any of its political subdivisions.

"Toxic substance" means any substance, including any raw materials, intermediate products, catalysts, final products, or by-products of any manufacturing operation conducted in a commercial establishment, that has the capacity, through its physical, chemical or biological properties, to pose a substantial risk of death or impairment either immediately or over time, to the normal functions of humans, aquatic organisms, or any other animal.

Code 1950, § 32-430; 1976, c. 627; 1977, c. 471; 1979, c. 711; 1984, c. 433; 1992, c. 203; 2020, c. 1271.

§ 32.1-240. Department designated state toxic substance information agency.

The State Department of Health is designated as the state toxic substances information agency. The Commissioner of Health may employ, compensate, and prescribe the administrative and clerical duties of such individuals as may be necessary to discharge the responsibilities imposed by this article.

Code 1950, § 32-431; 1976, c. 627; 1979, c. 711.

§ 32.1-241. Powers and duties of Board.

The Board shall:

1. Advise the Governor, other state agencies, the federal government, and local governing bodies on matters pertaining to chemical exposures posing a threat to public health or the environment;

2. Collect from any source, necessary information concerning substances which are toxic in certain concentrations and under certain conditions;

3. Catalogue information on substances that are toxic so that the information can be retrieved quickly for use;

4. Institute proceedings in any appropriate court to compel the production of information concerning substances which are toxic;

5. Review and evaluate the information to be used in making a determination regarding toxicity of any substance and the concentrations and conditions under which the substance is toxic;

6. Disseminate information concerning toxic substances to other state agencies, political subdivisions of the Commonwealth, health professionals, the media, and the public by communicating the risk of chemical exposure through developing and disseminating documents, technical reports, information sheets, advisories, and press releases;

7. Investigate potential human health effects associated with environmental exposures through biomedical studies to address emergency and nonemergency site-specific problems;

8. Develop health risk assessments for specific chemical exposures via air, water, and food; coordinate assessments of such risks with other state agencies through the convening of assessment groups; and submit recommendations to prevent exposure of citizens to toxic substances, including, but not limited to, the closure of bodies of water and advisories relating to food consumption; and

9. Promulgate regulations to specify as necessary the details of the program.

Code 1950, §§ 32-428.1, 32-429; 1976, c. 627; 1977, c. 471; 1979, c. 711; 1982, c. 16; 1992, c. 203; 1995, c. 90.

§ 32.1-242. Repealed.

Repealed by Acts 1995, c. 90.

§ 32.1-243. State agencies directed to cooperate with and furnish information to Board.

All agencies and institutions of the Commonwealth shall cooperate with the Board and, on request, furnish to the Board all information in their possession concerning toxic substances.

Code 1950, § 32-434; 1976, c. 627; 1979, c. 711; 1992, c. 203.

§ 32.1-244. Duty of operators to report knowledge of toxicity; retention and return of certain information; diagnosis of employee injuries and illnesses.

Each person who operates a commercial establishment that uses as a raw material, catalyst, final product or process solvent or manufactures any chemical or mixture in a manner that the person knows, or reasonably should know, is toxic and under the circumstances of its manufacture or use may pose a substantial threat to human health or to the environment shall have the affirmative duty to report that information to the Board within five days of receiving it.

In discharging this duty to report, each person shall have the further affirmative duty to make reasonable inquiry into the toxicity of any substance. Any knowledge of toxicity that is possessed by an employee or agent of the person, or by the holder of any patent under which the person is licensed to produce such substance, shall be attributed to that person if the person actually received that knowledge or, in the exercise of due diligence of such person, should have received that knowledge. Any knowledge of toxicity that is possessed by any consultant or independent contractor, who has been retained by the person to perform any evaluation or other task which involves any such substance, shall be attributed to the person if such person actually received that knowledge or, in the exercise of due diligence by such person, should have received that knowledge.

Except as provided in this section, the Board shall not require any reports by operators of commercial establishments to be filed pursuant to this article unless the Board can demonstrate that the report is necessary to prevent or lessen an imminent risk of injury to public health or the environment.

Each person who operates a commercial establishment in which any chemical is manufactured or is used as a raw material, catalyst, final product or process solvent shall direct each of his employees to a physician for diagnosis of any injury or illness of any kind whatever that the person knows, or reasonably should know, may be caused by such chemical. Nothing in this article shall be deemed, however, to authorize or require physical examination or medical treatment for any person who objects thereto on religious grounds.

The Department shall make reasonable efforts to return all confidential business information filed pursuant to this article to the owner or operator of the business that reported it; however, if the business no longer exists or the owner or operator cannot be located, the Department may retain the confidential information under the same terms and conditions of confidentiality existing prior to July 1, 1992, or, at the discretion of the Commissioner, purge and destroy such information.

Code 1950, § 32-435.1; 1977, c. 471; 1979, c. 711; 1982, c. 16; 1984, c. 433; 1992, c. 203.

§ 32.1-244.1. Repealed.

Repealed by Acts 1992, c. 203.

§ 32.1-245. Toxic substances.

The Board shall advise the General Assembly and the Governor as to all matters relating to toxic substances in the Commonwealth.

Code 1950, § 32-438; 1976, c. 627; 1979, c. 711; 1984, c. 433; 1992, c. 203; 2008, c. 671.

Article 10. Miscellaneous Provisions.

§ 32.1-246. Marinas.

A. The Board is empowered and directed to adopt and promulgate all necessary regulations establishing minimum requirements for adequate sewerage facilities at marinas and other places where boats are moored according to the number of boat slips and persons such marinas and places are designed to accommodate. The provisions of this section shall be applicable to every such marina and place regardless of whether such establishment serves food.

B. The Commissioner shall enforce the provisions of this section and regulations adopted thereunder.

C. No such marina or place shall operate unless in accordance with this section and regulations adopted and promulgated thereunder.

D. Whenever the Commissioner shall have approved the plan for the sewerage facilities of a proposed marina for presentation to the Marine Resources Commission as provided in § 62.1-3, he shall have the power and duty to enforce compliance with such plan.

Code 1950, § 32-63.1; 1968, c. 594; 1979, c. 711.

§ 32.1-246.1. Signs or notices required on dump stations.

Any marina required to have a dump station pursuant to the regulations of the Board of Health shall clearly identify or placard such equipment by signs or other notices, indicating any fees, restrictions or other operating instructions as necessary.

1991, c. 32.

§ 32.1-247. Vector control.

The Board shall develop and maintain the capability and technical competence necessary to investigate the occurrence of diseases borne by insects and rodents and shall recommend such measures as may be necessary to prevent the spread of such diseases and to eradicate or control disease-bearing insects and rodents.

In this regard the Board shall make provision for assistance to mosquito control commissions when requested, field surveys and investigation of complaints, advice to citizens and local governments, training in vector control, advice and recommendations on proper use of pesticides, and identifying specimens.

1979, c. 711; 1985, c. 372.

§ 32.1-248. Closing of waters; modification or revocation of regulation or order.

The Board may adopt regulations or orders closing any river, stream, lake or other body of water in this Commonwealth to fishing, boating, swimming or any other usage if the Board finds, and states the reasons and precise factual basis for finding, that a toxic substance as defined in § 32.1-239 is present in such river, stream, lake or other body of water in such manner as to constitute a present threat to public health and welfare. Such regulation or order may be temporary or permanent and may be issued initially on an emergency basis. Thereafter it may be promulgated as a final regulation or order upon the completion by the Board of the procedural requirements set forth in the Administrative Process Act (§ 2.2-4000 et seq.).

If the Commissioner determines that the threat to public health and welfare has abated in whole or in part, the State Health Commissioner may modify or revoke any such regulation or order in a manner that lessens the restrictions placed upon fishing, boating, swimming, or other usage. Such modification or revocation by the Commissioner shall not be subject to the requirements of the Administrative Process Act but shall be filed with the Registrar of Regulations in accordance with § 2.2-4103. The Board shall review such modification or revocation at its next regularly scheduled meeting after such action by the Commissioner and shall affirm, reverse, or modify the Commissioner's action. Review by the Board shall also be exempt from the provisions of the Administrative Process Act.

1979, c. 711; 1981, c. 144.

§ 32.1-248.01. Fish consumption advisories.

The Virginia Department of Health shall develop a written policy, which shall be revised annually, that identifies the criteria and levels of concern for certain toxic substances that the Department will use in determining whether to issue a fish consumption advisory. The policy shall initially include the criteria and levels of concern for polychlorinated biphenyl, mercury, dioxin, and kepone. The Department shall issue fish consumption advisories as provided for in the policy and shall do so on a timely basis. A copy of the written policy shall be provided to the Chairmen of the House Committee on Health, Welfare and Institutions, the House Committee on Conservation and Natural Resources, the Senate Committee on Education and Health, and the Senate Committee on Agriculture, Conservation and Natural Resources no later than one month prior to adoption of the policy but no later than December 1, 2000. Any revision of the policy shall be submitted to the chairmen of these committees no later than one month prior to the adoption of the revision by the Department.

2000, cc. 17, 1043.

§ 32.1-248.1. Posting of water quality test results by certain recreational facilities.

The Board of Health shall promulgate regulations to require the daily posting of water quality test results at swimming pools and other water recreational facilities operated for public use or in conjunction with a tourist facility or health spa. Such regulations shall require, among other things, the posting of water quality data regarding the current pH level, disinfectant type and concentration, and water temperature, and the recommended safe levels of each, and shall not apply to private residential water recreational facilities, as defined by the Board.

1990, c. 812.

§ 32.1-248.2. Use of rainwater and reuse of gray water; regulations.

A. The Board shall adopt regulations regarding the use of gray water and rainwater. The regulations shall (i) describe the conditions under which gray water and rainwater may appropriately be used and for what purposes; (ii) include categories of gray water, such as types of used household water and used water from businesses, that are appropriate for reuse; and (iii) include a definition of gray water that excludes used toilet water. The regulations shall also provide standards for the use of rainwater harvesting systems, including systems that collect rainwater for use by commercial enterprises but do not provide water for human consumption, as defined in § 32.1-167.

Such regulations shall not apply to water not for human consumption, as defined in § 32.1-167, including gray water and rainwater, that is produced and utilized by any facility that is permitted through a Virginia Pollutant Discharge Elimination System permit or General Virginia Pollution Abatement permit.

B. The Department, in conjunction with the Department of Environmental Quality, shall promote the use of rainwater and reuse of gray water as means to reduce fresh water consumption, ease demands on public treatment works and water supply systems, and promote conservation.

C. The Department, in conjunction with the Department of Environmental Quality, shall consider recognizing rainwater as an independent source of fresh water available for use by the residents of the Commonwealth.

1998, c. 155; 2018, c. 817.

§ 32.1-248.3. Environmental Health Education and Training Fund.

There is hereby created the Environmental Health Education and Training Fund, whose purpose is to receive moneys generated by the civil penalties collected by the Department pursuant to § 32.1-164 and appropriated by the Commonwealth for the purpose of supporting, training, educating, and recognizing public- and private-sector individuals in all areas of environmental health, including licensed onsite soil evaluators and Department employees. Civil penalties collected by the Department shall be deposited by the Comptroller to this fund to be appropriated for the purposes of this section to the Department by the General Assembly as it deems necessary. The fund may also be used, in the discretion of the Board, for research to improve public health and for protection of the environment.

2007, c. 514; 2016, c. 90.

§ 32.1-248.4. Provision by the Department of certain services for onsite sewage systems and private wells.

A. The Department shall take steps to eliminate evaluation and design services provided by the Department for onsite sewage systems and private wells. In taking such steps, the Department shall:

1. Accept private evaluations and designs for private wells, in compliance with the State Board of Health regulations for construction of private wells, designed and certified by a certified master water well system provider pursuant to § 54.1-1129.1;

2. Cease providing onsite sewage system evaluations and design services that are not associated with a building permit or the repair of a failing sewage system. Hardship exceptions shall not apply to these services;

3. Cease providing new construction evaluation and design services for an application that is not for a principal place of residence. Hardship exceptions shall not apply to these services;

4. By July 1, 2019, establish guidelines to maintain the Department as a provider of last resort for a property owner who demonstrates a specific hardship in obtaining private sector evaluation and design services associated with a building permit or the repair of a failing sewage system that is for a principal place of residence. In developing such guidelines, the Department shall solicit and consider input from stakeholders. The Department's guidelines shall include considerations for hardships based on (i) the availability of properly licensed service providers working within a locality or region, (ii) the disciplinary history of private sector providers, and (iii) the cost of private sector services. The Department shall post its proposed guidelines on a website maintained by the Department by November 1, 2018; and

5. Beginning July 1, 2019, require an applicant for an onsite sewage system or private well construction permit who desires the Department to provide evaluation and design services associated with a building permit or the repair of a failing sewage system that is for a principal place of residence to petition the Department to provide such evaluation and design services.

B. The Department shall coordinate with the Department of Professional and Occupational Regulation to establish any necessary agreements or procedures to ensure that potential violations of laws or regulations regarding onsite sewage system and private well evaluation and design are referred to the appropriate agency or board for review.

2018, c. 831.