REGULATIONS (26:9 VA.R. January 4, 2010)
TABLE OF CONTENTS
Publication Schedule and Deadlines
Notices of Intended Regulatory Action
Regulations
1VAC30-40.
Regulations for the Certification of Laboratories Analyzing Drinking Water
(Final)
4VAC20-20.
Pertaining to the Licensing of Fixed Fishing Devices (Final)
4VAC20-490.
Pertaining to Sharks (Final)
4VAC20-610.
Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Final)
4VAC20-900.
Pertaining to Horseshoe Crab (Final)
4VAC50-60.
Virginia Stormwater Management Program (VSMP) Permit Regulations (Final)
4VAC50-60.
Virginia Stormwater Management Program (VSMP) Permit Regulations (Final)
9VAC5-10.
General Definitions (Fast-Track)
10VAC5-110.
Credit Counseling (Final)
13VAC10-180. Rules and Regulations for Allocation of
Low-Income Housing Tax Credits (Final)
14VAC5-310.
Rules Governing Actuarial Opinions and Memoranda (Final)
22VAC40-601. Food Stamp Program (Proposed)
23VAC10-210. Retail Sales and Use Tax (Final)
24VAC30-510. Frontage Roads (Final)
The Virginia Register OF
REGULATIONS is an official state publication issued every other week
throughout the year. Indexes are published quarterly, and are cumulative for
the year. The Virginia Register has
several functions. The new and amended sections of regulations, both as proposed
and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other
information about state government, including petitions for rulemaking,
emergency regulations, executive orders issued by the Governor, the Virginia
Tax Bulletin issued periodically by the Department of Taxation, and notices of
public hearings and open meetings of state agencies.
ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS
An agency
wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended
regulatory action; a basis, purpose, substance and issues statement; an
economic impact analysis prepared by the Department of Planning and Budget; the
agency’s response to the economic impact analysis; a summary; a notice giving
the public an opportunity to comment on the proposal; and the text of the
proposed regulation.
Following
publication of the proposal in the Virginia Register, the promulgating agency
receives public comments for a minimum of 60 days. The Governor reviews the
proposed regulation to determine if it is necessary to protect the public
health, safety and welfare, and if it is clearly written and easily
understandable. If the Governor chooses to comment on the proposed regulation,
his comments must be transmitted to the agency and the Registrar no later than
15 days following the completion of the 60-day public comment period. The
Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion
of the 60-day public comment period, the agency may adopt the proposed
regulation.
The
Joint Commission on Administrative Rules (JCAR) or the appropriate standing
committee of each house of the General Assembly may meet during the
promulgation or final adoption process and file an objection with the Registrar
and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after
receipt by the agency of a legislative objection, the agency shall file a
response with the Registrar, the objecting legislative body, and the Governor.
When
final action is taken, the agency again publishes the text of the regulation as
adopted, highlighting all changes made to the proposed regulation and
explaining any substantial changes made since publication of the proposal. A
30-day final adoption period begins upon final publication in the Virginia Register.
The
Governor may review the final regulation during this time and, if he objects,
forward his objection to the Registrar and the agency. In addition to or in
lieu of filing a formal objection, the Governor may suspend the effective date
of a portion or all of a regulation until the end of the next regular General
Assembly session by issuing a directive signed by a majority of the members of
the appropriate legislative body and the Governor. The Governor’s objection or
suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds
that changes made to the proposed regulation have substantial impact, he may
require the agency to provide an additional 30-day public comment period on the
changes. Notice of the additional public comment period required by the
Governor will be published in the Virginia
Register.
The
agency shall suspend the regulatory process for 30 days when it receives
requests from 25 or more individuals to solicit additional public comment,
unless the agency determines that the changes have minor or inconsequential
impact.
A
regulation becomes effective at the conclusion of the 30-day final adoption
period, or at any other later date specified by the promulgating agency, unless
(i) a legislative objection has been filed, in which event the regulation,
unless withdrawn, becomes effective on the date specified, which shall be after
the expiration of the 21-day objection period; (ii) the Governor exercises his
authority to require the agency to provide for additional public comment, in
which event the regulation, unless withdrawn, becomes effective on the date
specified, which shall be after the expiration of the period for which the
Governor has provided for additional public comment; (iii) the Governor and the
General Assembly exercise their authority to suspend the effective date of a
regulation until the end of the next regular legislative session; or (iv) the
agency suspends the regulatory process, in which event the regulation, unless
withdrawn, becomes effective on the date specified, which shall be after the
expiration of the 30-day public comment period and no earlier than 15 days from
publication of the readopted action.
Proposed
regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.
FAST-TRACK RULEMAKING PROCESS
Section
2.2-4012.1 of the Code of Virginia provides an exemption from certain
provisions of the Administrative Process Act for agency regulations deemed by
the Governor to be noncontroversial. To
use this process, Governor's concurrence is required and advance notice must be
provided to certain legislative committees.
Fast-track regulations will become effective on the date noted in the
regulatory action if no objections to using the process are filed in accordance
with § 2.2-4012.1.
EMERGENCY REGULATIONS
Pursuant
to § 2.2-4011
of the Code of Virginia, an agency, upon consultation with the Attorney
General, and at the discretion of the Governor, may adopt emergency regulations
that are necessitated by an emergency situation. An agency may also adopt an
emergency regulation when Virginia statutory law or the appropriation act or
federal law or federal regulation requires that a regulation be effective in
280 days or less from its enactment. The
emergency regulation becomes operative upon its adoption and filing with the
Registrar of Regulations, unless a later date is specified. Emergency
regulations are limited to no more than 12 months in duration; however, may be
extended for six months under certain circumstances as provided for in
§ 2.2-4011 D. Emergency regulations are published as soon as possible in
the Register.
During
the time the emergency status is in effect, the agency may proceed with the
adoption of permanent regulations through the usual procedures. To begin
promulgating the replacement regulation, the agency must (i) file the Notice of
Intended Regulatory Action with the Registrar within 60 days of the effective
date of the emergency regulation and (ii) file the proposed regulation with the
Registrar within 180 days of the effective date of the emergency regulation. If
the agency chooses not to adopt the regulations, the emergency status ends when
the prescribed time limit expires.
STATEMENT
The
foregoing constitutes a generalized statement of the procedures to be followed.
For specific statutory language, it is suggested that Article 2
(§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be
examined carefully.
CITATION TO THE VIRGINIA
REGISTER
The Virginia Register is cited by volume,
issue, page number, and date. 23:7 VA.R.
1023-1140 December 11, 2006, refers to Volume 23, Issue 7, pages 1023
through 1140 of the Virginia Register
issued on December 11, 2006.
The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et
seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.
Members
of the Virginia Code Commission: R. Steven Landes, Chairman; John S. Edwards, Vice Chairman; Ryan T. McDougle; Robert Hurt; Robert L. Calhoun; Frank S. Ferguson; E.M.
Miller, Jr.; Thomas M. Moncure, Jr.; James F. Almand; Jane M. Roush.
Staff
of the Virginia Register: Jane D.
Chaffin, Registrar of Regulations; June T. Chandler, Assistant
Registrar.
January
2010 through October 2010
|
Volume: Issue |
Material Submitted By Noon* |
Will Be Published On |
|
INDEX 1 Volume 26 |
|
January 2010 |
|
26:9 |
December 15, 2009 (Tuesday) |
January 4, 2010 |
|
26:10 |
December 29, 2009 (Tuesday) |
January 18, 2010 |
|
26:11 |
January 13, 2010 |
February 1, 2010 |
|
26:12 |
January 27, 2010 |
February 15, 2010 |
|
26:13 |
February 10, 2010 |
March 1, 2010 |
|
26:14 |
February 24, 2010 |
March 15, 2010 |
|
INDEX 2 Volume 26 |
|
April 2010 |
|
26:15 |
March 10, 2010 |
March 29, 2010 |
|
26:16 |
March 24, 2010 |
April 12, 2010 |
|
26:17 |
April 7, 2010 |
April 26, 2010 |
|
26:18 |
April 21, 2010 |
May 10, 2010 |
|
26:19 |
May 5, 2010 |
May 24, 2010 |
|
26:20 |
May 19, 2010 |
June 7, 2010 |
|
INDEX 3 Volume 26 |
|
July 2010 |
|
26:21 |
June 2, 2010 |
June 21, 2010 |
|
26:22 |
June 16, 2010 |
July 5, 2010 |
|
26:23 |
June 30, 2010 |
July 19, 2010 |
|
26:24 |
July 14, 2010 |
August 2, 2010 |
|
26:25 |
July 28, 2010 |
August 16, 2010 |
|
26:26 |
August 11, 2010 |
August 30, 2010 |
|
FINAL INDEX Volume 26 |
|
October 2010 |
|
27:1 |
August 25, 2010 |
September 13, 2010 |
|
27:2 |
September 8, 2010 |
September 27, 2010 |
|
27:3 |
September 22, 2010 |
October 11, 2010 |
|
27:4 |
October 6, 2010 |
October 25, 2010 |
*Filing deadlines are Wednesdays unless otherwise specified.
STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Amend the regulations to require the reason documented for denying patient access to service records and criteria for removal to be consistent with the statement the physician is required to put into the service record in order to deny patient access to the same.
Agency
Decision: Request denied.
Statement of Reason for Decision: The board determined that 12VAC35-115 provides adequate protections with respect to restrictions being placed on an individual access to his or her services record.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-04; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: The reinstatement of the requirement on limiting the timeframe of how long the provider can impose a restriction on the patient's access to their service records.
Agency Decision: Request denied.
Statement
of Reasons for Decision: The board determined that 12VAC35-115 has never
included a requirement limiting the length of time that a restriction could be
placed on a patient's access to his or her service record. The board determined
that to do so would be to regulate a clinical practice issue.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-05; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and Regulations
to Assure the Rights of Individuals Receiving Services from Providers Licensed,
Funded, or Operated by the Department of Mental Health, Mental Retardation and
Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulation governing amendment of the service records should be amended to require the reviewer of patient requests to amend/correct their services records to be neither the patient's treating clinician nor a person who wrote the particular note in the service record that the patient is requesting to be amended/corrected.
Agency Decision: Request denied.
Statement of Reasons for Decision: The board determined that the existing provisions of 12VAC35-115 provide individuals receiving services with a clearly delineated right to have a statement of disagreement included in the record.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-06; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulation governing access to or amendment/correction of patients' service records should be amended to limit to 10 days from the date of the submission's request, (i) the physician's response to a patient's request for accessing his service record and (ii) the reviewer's response to a patient's request for amending/correcting his service record.
Agency Decision: Request denied.
Statement of Reasons for Decision: The board determined that 12VAC35-115 should not be changed to establish a specific timeframe within which a provider must respond to record access requests. Requirements regarding response timeframes are already established by state and federal laws and differ based on the type of provider.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-07; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: None specified.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulation governing different legal statuses of inpatient hospitalization and their discharge criteria should repeal the provision requiring or allowing a "provider" to wait until after 30 days from admission to inform the involuntarily, civilly committed patients' of their right to seek discharge from the facility director and their right to seek legal appeal of their civil commitment order to the Circuit Court pursuant to § 37.2-830 of the Code of Virginia.
Agency Decision: Request denied.
Statement of Reasons for Decision: The board determined that 12VAC35-115-70 B 8 b neither requires nor allows a provider to wait for 30 days after admission to notify the individual receiving services of his right to appeal an order of involuntary commitment.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-08; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulations allowing the commissioner to suspend the applicability of the human rights regulation, through a written exemption, to people on forensic status or civilly committed as sexually violent predators should be repealed.
Agency Decision: Request denied.
Statement
of Reasons for Decision: The board determined that the authority granted
under 12VAC35-115 to the commissioner to balance individual rights with the
need for public safety is consistent with the provisions of § 37.2-400 of
the Code of Virginia.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-09; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulation should be amended to prohibit the commissioner from suspending the applicability of provisions in the human rights regulations that apply to people on forensic status or civilly committed as sexually violent predators through a written exemption where there are duplicate provisions of the same rights in the statutes (§ 37.2-400 of the Code of Virginia).
Agency Decision: Request denied.
Statement of Reasons for Decision: The board determined that § 37.2-400 of the Code of Virginia does allow qualifications to the statutorily defined rights when such qualifications are consistent with reasonable limitations and sound therapeutic treatment.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-10; Filed December 9, 2009, 3:55 p.m.
Agency Decision
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Regulation should be amended to require the commissioner to specify the section codes and provisions as apart of the written exemptions for suspending the applicability of the human rights regulation to people on forensic status and civilly committed as sexually violent predators.
Agency Decision: Request denied.
Statement of Reasons for Decision: The board determined that the subject of this petition is adequately addressed in departmental policy guidance and does not require regulatory action.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-11; Filed December 9, 2009, 3:55 p.m.
Initial Agency Notice
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from
Providers Licensed, Funded, or Operated by the Department of Mental Health,
Mental Retardation and Substance Abuse Services.
Statutory Authority: §§ 37.2-202 and 37.2-400 of the Code of Virginia.
Name of Petitioner: Steven Shoon.
Nature of Petitioner's Request: Adjust the complaint resolution process to remove the director or director's designee from handling the Human Rights Complaint when the director or director's designee's conduct, position, or circumstances renders them unable to perform an impartial review of the Human Rights Complaint. This includes prohibiting the director of appointing a designee for handling the Human Rights Complaint.
Agency's
Plan for Disposition of the Request: The board will consider the petition
and any comments received at its first meeting after the conclusion of the
public comment period.
Comments
may be submitted until January 25, 2010.
Agency Contact: Linda B. Grasewicz, Senior Planner, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0040, FAX (804) 371-0092, or email linda.grasewicz@dbhds.virginia.gov.
VA.R. Doc. No. R10-30; Filed December 10, 2009, 4:38 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Virginia Soil and Water Conservation Board intends to consider amending the following regulations: 4VAC50-60, Virginia Stormwater Management Regulations. The purpose of the proposed action is to establish water quality design criteria for new development activities within the Chesapeake Bay Watershed that are consistent with the pollutant loadings called for in the Environmental Protection Agency-approved Virginia Total Maximum Daily Load (TMDL) Implementation Plan for the Chesapeake Bay Nutrient and Sediment TMDL, and consider compliance methodologies and mechanisms associated with any new design criteria.
The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.
Statutory Authority: §§ 10.1-107 and 10.1-603.4 of the Code of Virginia.
Public Comment Deadline: February 3, 2010.
Agency Contact: David C. Dowling, Policy, Planning, and Budget Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.
VA.R. Doc. No. R10-2265; Filed December 14, 2009, 3:23 p.m.
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TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Board of Education intends to consider amending the following regulations: 8VAC20-120, Career and Technical Education Regulations. Changes in both federal and state laws pertaining to career and technical education have made it necessary to revise the Career and Technical Education Regulations. The regulations will be examined in their entirety, including the requirements for general provisions, administration of career and technical education programs, and operation of career and technical education programs. The goals of this review are to (i) update the regulations to comply with new state and federal laws, such as an identification and clarification of the U.S. Department of Education's approved Virginia requirements for meeting the performance standards of the Perkins Act of 2006; (ii) update definitions for consistency with state and federal regulations dealing with similar issues such as a clarification of "career clusters," "career pathways," "sustained professional development," and other terms impacted by the Perkins Act of 2006; and (iii) eliminate any duplication of regulations.
The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.
Statutory Authority: §§ 22.1-16 and 22.1-227 of the Code of Virginia.
Public Comment Deadline: February 8, 2010.
Agency Contact: Anne Rowe, Career and Technical Education Coordinator, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 225-2838, FAX (804) 371-2456, or email anne.rowe@doe.virginia.gov.
VA.R. Doc. No. R10-2244; Filed December 14, 2009, 2:01 p.m.
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TITLE 13. HOUSING
BOARD OF HOUSING AND COMMUNITY DEVELOPMENT
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board of Housing and Community Development intends to consider amending the following regulations: 13VAC5-112, Enterprise Zone Grant Program Regulation. The purpose of the proposed action is to enable the enterprise zone program to be administered in a more efficient and economical manner and to ensure that the regulations provide clear and understandable guidelines by addressing all issues concerning the performance of the program by (i) further clarifying the intent of the program and insuring that it is being met, (ii) providing additional guidance to program constituents, (iii) formalizing what has been common practice, and (iv) updating references to specific statutes and dates.
The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.
Statutory Authority: § 59.1-533 of the Code of Virginia.
Public Comment Deadline: February 3, 2010.
Agency Contact: Stephen W. Calhoun, Regulatory Coordinator, Department of Housing and Community Development, Main Street Centre, 600 E. Main Street, Suite 300, Richmond, VA 23219, telephone (804) 371-7000, FAX (804) 371-7090, TTY (804) 371-7089, or email steve.calhoun@dhcd.virginia.gov.
VA.R. Doc. No. R10-2174; Filed December 14, 2009, 2:02 p.m.
DEPARTMENT OF GENERAL SERVICES
Final Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The Department of General Services will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.
Title of Regulation: 1VAC30-40. Regulations for the Certification of Laboratories Analyzing Drinking Water (amending 1VAC30-40-10, 1VAC30-40-20, 1VAC30-40-30, 1VAC30-40-40, 1VAC30-40-100, 1VAC30-40-110, 1VAC30-40-130, 1VAC30-40-150, 1VAC30-40-240, 1VAC30-40-250, 1VAC30-40-280, 1VAC30-40-320, 1VAC30-40-330, 1VAC30-40-340, 1VAC30-40-360, 1VAC30-40-370; adding 1VAC30-40-85).
Statutory Authority: §§ 2.2-1102 and 2.2-1105 of the Code of Virginia.
Effective Date: February 3, 2010.
Agency Contact: Rhonda Bishton, Regulatory Coordinator, Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA 23219, telephone (804) 786-3311, FAX (804) 371-8305, or email rhonda.bishton@dgs.virginia.gov.
Summary:
Laboratories analyzing drinking water samples under the federal Safe Drinking Water Act (SDWA) must use current federal Environmental Protection Agency (EPA) approved test methods and adhere to other laboratory-specific requirements, as set out in 40 CFR Parts 141 and 143. The lists of test methods are revised regularly to include newly approved methods and delete out-of-date methods. These lists are also revised when new SDWA program requirements are promulgated in the Federal Register.
The changes to the Certification of Laboratories Analyzing Drinking Water Regulations conform them to current federal requirements for test methods, sampling, and laboratory certification. 1VAC30-40-85 is added to incorporate by reference the most current federal requirements. Out-of-date citations and out-of-date tables listing test methods and sample container, preservation, and holding time requirements are deleted. Provisions in the regulations that were taken verbatim from now out-of-date test methods and federal requirements are deleted and replaced by incorporating by reference current requirements. Finally, technical changes are made to replace the Division of Water Supply Engineering with the Office of Drinking Water to reflect the correct name of the Virginia Department of Health division responsible for these regulations.
Part I
General Provisions
1VAC30-40-10. Introduction.
The Safe Drinking Water Act (SDWA) of December 16, 1974, mandated the establishment of drinking water regulations. The United States Environmental Protection Agency (USEPA) was authorized to set the national drinking water regulations and oversee the implementation of the SDWA. State governments through their health departments or environmental agencies were to accept the responsibility for the implementation and enforcement of the SDWA'S provisions.
The Virginia Department of Health, Division of Water
Supply Engineering (VDH-DWSE) Office of Drinking Water (VDH-ODW) has
accepted and maintains the primary enforcement responsibility (primacy) under
the SDWA and the requirements of the National Primary Drinking Water Regulations
(NPDWR) 40 CFR 141, 142 and 143 (2009). The regulation at 40 CFR
141.28 requires that all testing for compliance purposes except turbidity, free
chlorine residual, temperature and pH be performed by laboratories certified by
the state.
The Department of General Services, Division of Consolidated
Laboratory Services (DGS-DCLS) has been designated by VDH- DWSE VDH-ODW
as the principal state laboratory. Pursuant to regulation 40 CFR
142.10(b)(3)(i) (2009), DGS-DCLS has established and maintains the state
program for the certification of laboratories conducting analytical
measurements of drinking water contaminants.
This chapter provides the mechanism to assure that laboratories are capable of providing valid data for compliance under the SDWA.
1VAC30-40-20. Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context already indicates otherwise:
"Analyst" means a chemist, microbiologist, physicist, or technician who actually performs a test. The analyst may carry out the complete test or participate jointly with other analysts. The qualifications an analyst needs depend greatly on functions being performed.
"Certifying team" means experienced DGS-DCLS professionals to perform laboratory on-site evaluations under the SDWA.
"CFR" means Code of Federal Regulations.
"Compliance sample" means any sample required by the Virginia Department of Health to determine that the water quality does not exceed the maximum contaminant level (MCL) for each specified parameter.
"DGS-DCLS" means the Department of General Services-Division of Consolidated Laboratory Services.
"EMSL-LV" means the Environmental Monitoring Systems Laboratory in Las Vegas, Nevada.
"Maximum contaminant level (MCL)" means the maximum permissible level of a contaminant in water which is delivered to the free flowing outlet of the ultimate user of a waterworks.
"Minimum requirements" means criteria which are critical to the generation of valid data. These criteria describe the lowest level of capability at which the analyses can be successfully performed.
"NPDWR" means the National Primary Drinking Water Regulations (40 CFR 141 et seq.) (2009).
"Performance evaluation sample" means annual sample to be analyzed by a laboratory on certain parameters for which certification has been requested or granted. This annual sample is a form of documentation of a laboratory's capabilities in conjunction with on-site inspection evaluations of the laboratory by the certifying team.
"Primary enforcement responsibility (Primacy)" means the primary responsibility for administration and enforcement of primary drinking water regulations and related requirements applicable to public water systems within a state.
"Quality Assurance (QA) Plan" means a written description of a laboratory's quality assurance activities.
"SDWA" means the Safe Drinking Water Act (21
USCS § 349; 42 USCS §§ 201, 300f to 300j-9) (42 USC § 300 f et
seq.).
"TTHM" means Total Trihalomethanes.
"USEPA" means the United States Environmental Protection Agency.
"VDH-DWSE" "VDH-ODW" means
the Virginia Department of Health-Division of Water Supply Engineering Virginia
Department of Health - Office of Drinking Water.
"Virginia laboratory officer" means the DGS-DCLS coordinator of drinking water laboratory certification activities.
1VAC30-40-30. Public notification for exceeded MCL.
The public notification regulations require that a laboratory
analyzing compliance samples immediately notify the VDH-DWSE VDH-ODW
of all results which exceed an MCL in accordance with Virginia Waterworks
Regulations, 12VAC5-590-530 and 12VAC5-590-540, June 23, 1993; the
Public Notification Final Rule, Federal Register Vol. 52, No. 208, October 28,
1987; and the Public Notification Technical Amendment, Federal Register Vol.
54, No. 72, April 17, 1989.
1VAC30-40-40. Compliance data report.
A. A waterworks with an on-site certified laboratory
shall follow the reporting requirements outlined in Virginia Waterworks
Regulations, VR 355-18-005.09, 2.20 Reporting, June 23, 1993 12VAC5-590-530.
B. A contract laboratory analyzing compliance samples
shall complete the appropriate VDH-DWSE VDH-ODW Sample Input Form
in accordance with the instructions for compliance under the SDWA. The contract
laboratory shall report the analysis result to the VDH-DWSE VDH-ODW
within three days of completion date of sample analysis.
1VAC30-40-85. Incorporation by reference.
A. The sampling, analytical methodology, and laboratory certification requirements of 40 CFR 141 and 143 (2009) are incorporated by reference into this chapter.
B. The specific sampling, analytical methodology, and laboratory certification requirements incorporated by reference are listed below by category:
1. Inorganic chemistry: 40 CFR 141.23, 40 CFR 141.89, and 40 CFR 141.131.
2. Organic chemistry: 40 CFR 141.24 and 40 CFR 141.131.
3. Microbiology: 40 CFR 141.21, 40 CFR 141.74, 40 CFR 141.174, 40 CFR 141.704, and 40 CFR 141.705. 40 CFR 136.3 (a) for e. coli requirements under 40 CFR 141.704.
4. Radiochemistry: 40 CFR 141.25.
5. Alternative testing methods: 40 CFR Part 141, Subpart C, Appendix A.
6. Test methods specified for secondary maximum contaminant levels: 40 CFR 143.4.
C. The exceptions to the requirements for laboratory certification in 40 CFR 141.28, 40 CFR 141.74(a), 40 CFR 141.89(a)(1), 40 CFR 141.131(b)(3), and 40 CFR 141.131(c)(3) are incorporated by reference into this chapter. Laboratory testing for alkalinity, calcium, conductivity, disinfectant residual, orthophosphate, pH, silica, temperature, and turbidity for compliance purposes may be performed by laboratories or persons not certified under this chapter but acceptable to VDH-ODW.
1VAC30-40-100. Evaluation procedure.
A. DGS-DCLS shall notify a laboratory three weeks before the on-site evaluation.
B. During the on-site evaluation, the certifying team shall evaluate the laboratory on its equipment and supplies, general laboratory practices, sample collection, handling and preservation, methodology and quality assurance. A laboratory may be required to analyze an unknown sample or perform analysis on a parameter during the evaluation.
Survey forms may be used as guidelines for complete coverage of the laboratory's activities. Each deviation observed during the laboratory evaluation shall be discussed at the time it is observed. The certifying team shall make an oral report to the laboratory staff at the end of the evaluation.
C. The certifying team shall prepare a narrative and action report for the Virginia laboratory officer. This report shall contain information pertinent to the evaluation. The report shall recommend the parameters in a category for which certification can be granted.
D. DGS-DCLS shall obtain from VDH-DWSE VDH-ODW
an identification number for a newly certified laboratory. DGS-DCLS shall
inform VDH- DSWE VDH-ODW of the certification status of a
laboratory.
E. The Virginia laboratory officer shall advise the laboratory within 30 days after the on-site evaluation of its certification status and forward the certifying team's complete report.
F. Each laboratory found to be in noncompliance with this chapter, as indicated in the certifying team report, shall submit documentation of the corrective actions at the time specified by DGS-DCLS.
G. Additional actions toward certification shall be determined based on the specific circumstances.
1VAC30-40-110. Levels of certification.
Certification is granted for individual parameters in a category except for the volatile organic chemicals (VOC's). The VOC's are certified as a group based on the method employed and successful completion of the performance evaluation study.
1. "Certified" means a laboratory that meets the minimum requirements as determined by the certifying team using this chapter. The certification shall be valid for up to three years.
2. "Provisionally certified" means a laboratory
which has deficiencies but can still produce valid data. The laboratory can
continue to report compliance data to VDH-DWSE VDH-ODW. A
laboratory shall be permitted up to six months for correction of deficiencies.
The certifying team may perform an announced or unannounced on-site evaluation
to determine the adequacy of documented corrective actions. The certifying team
shall recommend to the Virginia laboratory officer to upgrade the laboratory's
certification status.
3. "Not certified" means a laboratory that does not meet the minimum requirements as determined by the certifying team using this chapter.
1VAC30-40-130. Maintenance of certified status.
To maintain its certified status, a laboratory shall:
1. Continue to meet the requirements listed in this chapter based on the on-site evaluation.
2. Pass performance evaluation samples on an annual basis (for radiochemistry pass additional two cross-check samples).
3. Perform a minimum of five water analyses for each chemical parameter per month. Refer to 1VAC30-40-330 for the minimum number of microbiology analyses. This shall ensure that the laboratory maintains expertise in the certified categories.
4. Notify DGS-DCLS within 30 days of changes in personnel, equipment or laboratory location which may change the laboratory's analytical capability.
5. Use approved methodology listed in this chapter incorporated
by reference at 1VAC30-40-85.
6. Notify VDH-DWSE VDH-ODW in accordance with
1VAC30-40-30.
1VAC30-40-150. Revocation of certified status.
A laboratory shall be downgraded from certified or provisionally certified to not certified status for:
1. Failure to employ USEPA approved methods incorporated by reference at 1VAC30-40-85.
2. Failure to submit report for the performance evaluation study at the specified time limit unless a waiver is approved by DGS-DCLS.
3. Failure to successfully analyze a parameter that is provisionally certified.
4. Submission of a performance evaluation sample to another laboratory for analysis and reporting the data as its own.
5. Failure to correct identified deficiencies based on an on-site visit.
6. Permitting persons other than qualified personnel to perform and report results for drinking water analysis.
7. Falsification of data or use of other deceptive practices.
8. Failure to notify the VDH-DWSE VDH-ODW in
accordance with 1VAC30-40-30.
1VAC30-40-240. Analytical methodology.
Analytical methods are specified in NPDWR 40 CFR 141 and
143. All procedural steps in the approved methods are considered requirements.
1. Inorganic contaminants. Table III-1 of this chapter
shows the approved methodology for inorganic contaminants.
2. Organic contaminants. Table III-2 of this chapter shows
the approved methodology for organic contaminants.
3. Secondary inoraganic contaminants. Table III-3 of this
chapter shows the approved methodology for secondary inorganic contaminants.
A. Laboratories shall meet the sampling and analytical methodology requirements incorporated by reference at 1VAC30-40-85 B 1 for primary inorganic contaminants, 1VAC30-40-85 B 2 for primary organic contaminants, and 1VAC30-40-85 B 5 for alternative testing methods.
4. Prepackaged kits. B. DPD Colorimetric Test
Kit and FACTS Colorimetric Test Kit are the only acceptable prepackaged
kits for free chlorine residual.
5. C. Measurement for residual disinfectant,
turbidity, pH and temperature need not be made in certified laboratories but
may be performed by any persons acceptable by the VDH-DWSE VDH-ODW.
The following are the critical elements of these tests:
a. 1. Sealed liquid turbidity standards
purchased from the instrument manufacturer shall be calibrated against properly
prepared and diluted formazin or styrene divinylbenzene polymer standards at
least every four months in order to monitor for any eventual deterioration.
This calibration shall be documented. The standards shall be replaced when they
do not fall within 15% of the assigned value of the standard. Solid turbidity
standards composed of plastic, glass, or other materials shall not be used.
b. 2. Calibration interval for color wheels,
sealed ampules, and other visual standards for free chlorine residual at least
every six months. These calibrations shall be documented. By comparing
standards and plotting such a comparison on graph paper, a correction factor
can be derived and applied to all future results obtained on the now calibrated
apparatus.
c. 3. Additional criteria. The following
criteria shall be used by persons for performing free chlorine residual,
turbidity, pH and temperature measurements.
(1) a. Free chlorine residual. Samples shall be
collected in plastic or glass. Samples are not preserved; analyses are made
within 15 minutes. A DPD or FACTS Colorimetric Test Kit, spectrophotometer or
photometer is required.
(2) b. Turbidity. Samples shall be collected in
plastic or glass. Samples are not preserved; analyses are to be made within 15
minutes. Nephelometer is needed with light source for illuminating the sample
and one or more photoelectric detectors with a readout device to indicate the
intensity of light scattered at right angles to the path of the incident light.
Unit may be line/bench or battery/portable operated.
(3) c. pH. Samples shall be collected in plastic
or glass. Samples are not preserved. Analyses are to be made within 15 minutes.
A pH meter is necessary.
(4) d. Temperature. Samples shall be analyzed
immediately. Good A good grade mercury-filled or dial-type
centigrade thermometer, or thermistor are is required.
1VAC30-40-250. Sample collection, handling, and preservation.
A. A written sampling procedure with specified sampling instructions shall be made available to sample collectors. The laboratory shall require strict adherence to correct sampling procedures, complete identification of a sample and prompt transfer of the sample to the laboratory.
B. The collector shall be trained in sampling procedures.
C. The sample needs to be representative of the potable water system. The water tap shall be sampled after maintaining a steady water flow for two or three minutes to clear service line unless otherwise specified by the method, as an example, lead and copper. The tap shall be free of any attachments or water purification devices.
D. The sample report form shall be completed immediately after collection with location, date and time of collection, collector's name, preservative added and any remarks concerning the sample. Indelible ink shall be used.
C. E. The sample container, required preservative
preservation, and maximum holding time requirements for sampling
and analyzing inorganic contaminants are listed in Table III-4 of this
chapter incorporated by reference at 1VAC30-40-85 B 1.
D. F. The sample container, required preservative
preservation, and maximum holding time requirements for sampling
and analyzing organic contaminants are listed in Table III-5 of this
chapter incorporated by reference at 1VAC30-40-85 B 2.
G. The sample container, required preservation, and maximum holding time requirements for alternative test methods are incorporated by reference at 1VAC30-40-85 B 5.
E. H. The laboratory shall reject any sample
not meeting the above criteria and notify the system or individual requesting
the analyses.
1VAC30-40-280. Action response to laboratory results.
When the action response is a designated laboratory responsibility, the laboratory shall notify the proper authority of noncompliance sample results and request resampling from the same sampling point immediately.
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