Code of Virginia

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Code of Virginia
Title 40.1. Labor and Employment
Subtitle .
Chapter 3.3. Virginia Asbestos NESHAP Act

Chapter 3.3. Virginia Asbestos NESHAP Act.

§ 40.1-51.23. Definitions.

As used in this chapter, which may be cited as the Virginia Asbestos NESHAP Act, the following terms shall have the meanings set forth in this section unless the context requires a different meaning:

"Asbestos" means any material containing more than one percent of asbestos by weight, which is friable or which has a reasonable chance of becoming friable in the course of ordinary or anticipated building use.

"Board" means the Safety and Health Codes Board.

"Commissioner" means the Commissioner of Labor and Industry or his authorized representative.

"Department" means the Department of Labor and Industry.

"National Emissions Standards for Hazardous Air Pollutants" or "NESHAP" means those portions of the regulations contained in 40 CFR Part 61 under the federal Clean Air Act which deal with the demolition and renovation of asbestos facilities. The following list of sections of the CFR are included in the Board's authority but do not limit it: §§ 61.140; 61.141; 61.145; 61.146; 61.148; 61.150, except subsection (a) (4); 61.154, except subsection (d); and 61.156.

"Owner" means any person who owns, leases, operates, controls, or supervises the facility being demolished, renovated, sprayed, or insulated; any person who owns, leases, operates, controls, or supervises the demolition, renovation, spraying, or insulation operation; or both.

1992, c. 541.

§ 40.1-51.24. Department authorized to enter certain agreements.

The Department is hereby authorized to:

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

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

1992, c. 541.

§ 40.1-51.25. Safety and Health Codes Board to formulate rules, regulations, etc.

A. The Board is authorized to formulate definitions, rules, regulations and standards which shall be designed to ensure the proper demolition and renovation of asbestos facilities and effect compliance with the asbestos NESHAP requirements of the federal Environmental Protection Agency. Such standards shall be at least as stringent as the asbestos regulations passed pursuant to § 112 of the Clean Air Act. The regulations shall not promote or encourage any substantial degradation of present air quality in any air basin or region which has an air quality superior to that stipulated in the regulations of the Department of Air Pollution Control. Any regulations adopted by the Board to have general effect in part or all of the Commonwealth shall be filed in accordance with the Virginia Register Act (§ 2.2-4100 et seq.).

B. The Board in making regulations and in approving variances, and the courts in granting injunctive relief under the provisions of this chapter, shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it, including:

1. The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused;

2. The social and economic value of the activity involved;

3. The suitability of the activity to the area in which it is located; and

4. The scientific and economic practicality of reducing or eliminating the discharge resulting from such activity.

1992, c. 541.

§ 40.1-51.26. Commissioner of Labor and Industry to enforce laws.

The Commissioner of Labor and Industry shall have the authority to:

1. Supervise, administer, and enforce the provisions of this chapter and regulations of the Board;

2. Receive complaints as to asbestos NESHAP violations;

3. Hold or cause to be held hearings and enter orders diminishing or abating the causes of air pollution and orders to enforce regulations pursuant to § 40.1-51.28;

4. Institute legal proceedings, including suits for injunctions for the enforcement of his orders, regulations of the Board, and for the enforcement of penalties;

5. Investigate any violations of this chapter and regulations;

6. Require that asbestos NESHAP records and reports be made available upon request, and require owners to develop, maintain, and make available such other records and information as are deemed necessary for the proper enforcement of this chapter and regulation; and

7. Upon presenting appropriate credentials to the owner, operator, or agent in charge:

a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in this Commonwealth, subject to federal security requirements; and

b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the Commissioner or his representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the Commissioner shall have the power to seek an order compelling such entry or inspection, pursuant to § 40.1-49.9.

1992, c. 541.

§ 40.1-51.27. Inspections, investigations, etc.

The Commissioner is authorized to make or cause to be made, such investigations and inspections and do such other things as are reasonably necessary to carry out the provisions of this chapter.

1992, c. 541.

§ 40.1-51.28. Issuance of special orders.

A. The Commissioner shall have the power to issue special orders to:

1. Owners who are permitting or causing asbestos NESHAP violations, to cease and desist from such violation;

2. Owners who have violated or failed to comply with the terms and provisions of any order of the Commissioner, to comply with such terms and provisions;

3. Owners who have contravened duly adopted asbestos NESHAP standards and regulations, to cease such contravention and to comply with air quality standards and policies; and

4. Require any owner to comply with the provisions of this chapter.

B. Such special orders are to be issued only after a hearing with reasonable notice to the affected owners of the time, place and purpose thereof, and they shall become effective not less than five days after service as provided in subsection C. Should the Commissioner find that any such owner is unreasonably affecting the public health, safety or welfare, the health of animal or plant life, or property, after a reasonable attempt to give notice, he shall declare a state of emergency and may issue without a hearing an emergency special order directing the owner to cease such pollution immediately, and shall within ten days hold a hearing, after reasonable notice as to the time and place thereof to the owner to affirm, modify, amend or cancel such emergency special order. If the Commissioner finds that an owner who has been issued a special order or an emergency special order is not complying with the terms thereof, he may proceed in accordance with § 40.1-51.35 or § 40.1-51.39.

C. Any special order issued under the provisions of this section need not be filed with the Secretary of the Commonwealth, but the owner to whom such special order is directed shall be notified by certified mail, return receipt requested, sent to the last known address of such owner, or by personal delivery by an agent of the Commissioner, and the time limits specified shall be counted from the date of receipt.

D. Nothing in this section or in § 40.1-51.26 shall limit the Commissioner's authority to proceed against such owner directly under § 40.1-51.35 or § 40.1-51.39 without the prior issuance of an order, special, or otherwise.

1992, c. 541.

§ 40.1-51.29. Decision of Commissioner pursuant to hearing.

Any decision by the Commissioner rendered pursuant to hearings under § 40.1-51.28 shall be reduced to writing and shall contain the explicit findings of fact and conclusions of law upon which the decision is based. Certified copies of the written decisions shall be delivered or mailed by certified mail to the parties affected by it. Failure to comply with this section shall render such decision invalid.

1992, c. 541.

§ 40.1-51.30. Appeal to Board.

Any owner aggrieved by a final decision of the Commissioner under § 40.1-51.28 may file a notice of appeal to the Board within fifteen days. Such notice shall be in writing and addressed to the Commissioner.

1992, c. 541.

§ 40.1-51.31. Penalties for noncompliance; judicial review.

A. The Board is authorized to promulgate regulations providing for the determination of a formula for the basis of the amount of any noncompliance penalty to be assessed by a court pursuant to subsection B hereof, in conformance with the requirements of § 120 of the federal Clean Air Act, as amended, and any regulations promulgated thereunder. Any regulations promulgated pursuant to this section shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

B. Upon a determination of the amount by the Commissioner, the Commissioner shall petition the circuit court of the county or city wherein the owner subject to such noncompliance assessment resides, regularly or systematically conducts affairs or business activities, or where such owner's property affected by the administrative action is located for an order requiring payment of a noncompliance penalty in a sum the court deems appropriate.

C. Any order issued by a court pursuant to this section may be enforced as a judgment of the court. All sums collected, less the assessment and collection costs, shall be paid into the general fund of the state treasury.

D. Any penalty assessed under this section shall be in addition to permits, fees, orders, payments, sanctions, or other requirements under this chapter and shall in no way affect any civil or criminal enforcement proceedings brought under other provisions of this chapter.

1992, c. 541.

§ 40.1-51.32. Owners to furnish plans, specifications and information.

Every owner which the Commissioner has reason to believe is causing, or may be about to cause, an asbestos NESHAP problem shall on request of the Commissioner furnish such plans, specifications and information as may be required by the Commissioner in the discharge of his duties under this chapter. Any information, except emission data, as to secret processes, formulae or methods of manufacture or production shall not be disclosed in a public hearing and shall be kept confidential. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person from whom such sample is requested.

1992, c. 541.

§ 40.1-51.33. Protection of trade secrets.

Any information, except emissions data, reported to or otherwise obtained by the Commissioner which contains or might reveal a trade secret shall be confidential and shall be limited to those persons who need such information for purposes of enforcement of this chapter or the federal Clean Air Act or regulations and orders of the Commissioner. It shall be the duty of each owner to notify the Commissioner of the existence of trade secrets when he desires the protection provided herein.

1992, c. 541.

§ 40.1-51.34. Right of entry.

Whenever it is necessary for the purposes of this chapter, the Commissioner may at reasonable times enter any establishment or upon any property, public or private, subject to federal security requirements, to obtain information or conduct surveys or investigations.

1992, c. 541.

§ 40.1-51.35. Compelling compliance with regulations and orders of Board; penalty for violations.

A. Any owner violating or failing, neglecting or refusing to obey any asbestos NESHAP regulation or order of the Commissioner may be compelled to comply by injunction, mandamus or other appropriate remedy.

B. Without limiting the remedies which may be obtained under this section, any owner violating or failing, neglecting or refusing to obey any Board regulation or order or any provision of this chapter shall be subject, in the discretion of the court, to a civil penalty not to exceed $25,000 for each violation. Each day of violation shall constitute a separate offense. In determining the amount of any civil penalty to be assessed pursuant to this subsection, the court shall consider, in addition to such other factors as it may deem appropriate, the size of the owner's business, the severity of the economic impact of the penalty on the business, and the seriousness of the violation. Such civil penalties shall be paid into the state treasury.

C. With the consent of an owner who has violated or failed, neglected or refused to obey any asbestos NESHAP regulation or order or any provision of this chapter, the Commissioner may provide, in any order issued by the Commissioner against the owner, for the payment of civil charges in specific sums, not to exceed the limit of subsection B. Such civil charges shall be in lieu of any civil penalty which could be imposed under subsection B and shall be paid into the state treasury.

1992, c. 541.

§ 40.1-51.36. Judicial review of regulations of Board.

The validity of any regulation may be determined through judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1992, c. 541.

§ 40.1-51.37. Appeal from decision of Board.

Any owner aggrieved by a final decision of the Board under § 40.1-51.30 or of the Commissioner under subdivision 4 of § 40.1-51.26 is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1992, c. 541.

§ 40.1-51.38. Appeal to Court of Appeals.

The Commonwealth or any party aggrieved by any final decision of the judge shall have, regardless of the amount involved, the right to appeal to the Court of Appeals. The procedure shall be the same as that provided by law concerning appeals and supersedeas.

1992, c. 541.

§ 40.1-51.39. Penalties; chapter not to affect right to relief or to maintain action.

A. Any owner violating any provision of this chapter, Board regulation, or order of the Commissioner shall upon conviction be guilty of a misdemeanor and shall be subject to a fine of not more than $1,000 for each violation within the discretion of the court. Each day of continued violation after conviction shall constitute a separate offense.

B. Nothing in this chapter shall be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on account of injury to persons or property.

1992, c. 541.

§ 40.1-51.40. Duty of attorney for the Commonwealth.

It shall be the duty of every attorney for the Commonwealth to whom the Commissioner has reported any violation of this chapter or any regulation or order of the Board, to cause proceedings to be prosecuted without delay for the fines and penalties in such cases.

1992, c. 541.

§ 40.1-51.41. Local ordinances.

A. Existing local ordinances adopted prior to July 1, 1972, shall continue in force; however, in the event of a conflict between a Board regulation, promulgated pursuant to this chapter, and a local ordinance, the Board regulation shall govern, except when the conflicting local ordinance is more stringent.

B. The governing body of any locality proposing to adopt an ordinance, or an amendment to an existing ordinance, relating to areas covered by asbestos NESHAP after June 30, 1972, shall first obtain the approval of the Board as to the provisions of the ordinance or amendment. The Board shall not approve any local ordinance less stringent than the pertinent regulations of the Board.

1992, c. 541.