4VAC50-50 Erosion and Sediment Control Certification Regulations

REGULATIONS

Vol. 29 Iss. 4 - October 22, 2012

TITLE 4. CONSERVATION AND NATURAL RESOURCES

VIRGINIA SOIL AND WATER CONSERVATION BOARD

Chapter 50

Final Regulation

REGISTRAR'S NOTICE: The Virginia Soil and Water Conservation Board is claiming an exemption from the Administrative Process Act in accordance with (i) § 2.2-4006 A 3 of the Code of Virginia, which excludes regulations that consist only of changes in style or form or corrections of technical errors and (ii) § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The Virginia Soil and Water Conservation Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 4VAC50-50. Erosion and Sediment Control Certification Regulations (amending 4VAC50-50-10 through 4VAC50-50-90; adding 4VAC50-50-55).

Statutory Authority: § 10.1-561 of the Code of Virginia.

Effective Date: November 21, 2012.

Agency Contact: David C. Dowling, Policy and Planning Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone [phone], FAX [phone], or email [e-mail].

Background: The majority of the amendments are being made to conform the Erosion and Sediment Control Certification Regulations (4VAC50-50) to changes in Virginia law in response to Chapters 785 and 819 of the 2012 Acts of Assembly, which integrated programs under the Erosion and Sediment Control, Stormwater Management, and Chesapeake Bay Preservation Acts. The legislation integrated elements of the Erosion and Sediment Control Act, the Stormwater Management Act, and the Chesapeake Bay Preservation Act (where appropriate; no Bay Act program expansion) so that those regulatory programs could be implemented in a consolidated and consistent manner, resulting in greater efficiencies (one-stop shopping) for those being regulated. The bill also abolished the Chesapeake Bay Local Assistance Board and transferred its powers and responsibilities to the Virginia Soil and Water Conservation Board. Accordingly, this consolidation legislation has resulted in necessary amendments to each of the referenced acts' attendant regulations.

Summary:

The substantive elements of this action include (i) changing the title of the regulations to recognize the broadened scope of the certification program to include stormwater training and certification; (ii) updating definitions; (iii) expanding the series of classifications currently available in the certification program for erosion and sediment control to include a parallel track in stormwater that includes program administrator for stormwater management (SWM), plan reviewer for SWM, project inspector for SWM, and combined administrator for SWM; (iv) recognizing that a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia shall qualify as a certified plan reviewer for erosion and sediment control (ESC) and will not require a certificate of competence from the board; and (v) establishing a dual certificate upon request for an individual who holds a valid and unexpired certificate of competence issued by the board in the classification of ESC or SWM, or who obtains such a certificate, and who later successfully obtains an additional certificate of competence from the board in the parallel ESC or SWM classification.

Within the eligibility requirements in 4VAC50-50-50, the amendments include (i) establishing the availability of stormwater training programs for project inspectors for SWM, plan reviewers for SWM, administrators for SWM, and combined administrators for SWM and stipulating which programs must be taken for each of these classifications; (ii) clarifying that both certifications and recertifications are valid for a period of three years; (iii) expanding the provision on recertifications to clarify the recertification process and those professional entities that may be fully or partially exempt from recertification requirements should they hold an appropriate and valid professional license; and (iv) clarifying that for the purposes of Virginia Erosion and Sediment Control Program (VESCP) or Virginia Stormwater Management Program (VSMP) compliance reviews and evaluations, the certification requirements of §§ 10.1-561.1 and 10.1-603.4:2 of the Code of Virginia shall be deemed to have been met if the VESCP or the VSMP authority has a person or persons enrolled in the board's ESC or SWM training programs for the necessary classifications and such person or persons obtains certification within one year of completing the necessary training programs.

CHAPTER 50
EROSION AND SEDIMENT CONTROL AND STORMWATER MANAGEMENT CERTIFICATION REGULATIONS

4VAC50-50-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Erosion and Sediment Control Law, Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

"Applicant" means any person submitting a request to be considered for certification.

"Board" means the Virginia Soil and Water Conservation Board.

"Certification" means the process whereby the board, on behalf of the Commonwealth, issues a certificate to persons who have completed board-approved training programs and met any additional eligibility requirements of 4VAC50-50-50 related to the specified classifications (4VAC50-50-40) within the areas of ESC or SWM or in other ways demonstrated adequate knowledge and experience in accordance with the eligibility requirements of 4VAC50-50-50 in the specified subject classifications within the areas of ESC or SWM.

"Certified combined administrator for ESC" means an employee or agent of a program VESCP authority who: (i) holds a certificate of competence from the board in the combined areas ESC classifications of program authority administrator, plan review reviewer, and project inspection; or (ii) is enrolled in the board's training program for program administrator, plan reviewer, and project inspector and successfully completes such program within one year after enrollment inspector in the area of ESC. "Certified combined administrator for SWM" means an employee or agent of a VSMP authority who holds a certificate of competence from the board in the combined classifications of program administrator, plan reviewer, and project inspector in the area of SWM.

"Certified project inspector for ESC" means an employee or agent of a program VESCP authority who: (i) holds a certificate of competence from the board in the area classification of project inspection; or (ii) is enrolled in the board's training program for project inspection and successfully completes such program within one year after enrollment inspector in the area of ESC.

"Certified project inspector for SWM" means an employee or agent of a VSMP authority who holds a certificate of competence from the board in the classification of project inspector in the area of SWM.

"Certified plan reviewer for ESC" means an employee or agent of a program VESCP authority who: (i) holds a certificate of competence from the board in the area classification of plan review reviewer in the area of ESC; (ii) is enrolled in the board's training program for plan review and successfully completes such program within one year after enrollment; or (iii) is licensed as a professional engineer, architect, certified landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia; or (iii) is a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia.

"Certified plan reviewer for SWM" means an employee or agent of a VSMP authority who holds a certificate of competence from the board in the classification of plan reviewer in the area of SWM.

"Certified program administrator for ESC" means an employee or agent of a program VESCP authority who: (i) holds a certificate of competence from the board in the area classification of program administration; or (ii) is enrolled in the board's training program for program administrator and successfully completes such program within one year after enrollment administrator in the area of ESC.

"Certified program administrator for SWM" means an employee or agent of a VSMP authority who holds a certificate of competence from the board in the classification of program administrator in the area of SWM.

"Classification" refers to the four specific subject certificate of competence classifications within the areas of ESC or SWM that make up activities being performed (program administrator, plan reviewer, project inspector, and combined) combined administrator).

"Combined administrator for ESC" means anyone who is responsible for performing the combined duties of a program administrator, plan reviewer and project inspector of a program VESCP authority.

"Combined administrator for SWM" means anyone who is responsible for performing the combined duties of a program administrator, plan reviewer and project inspector of a VSMP authority.

"Department" means the Department of Conservation and Recreation.

"ESC" means erosion and sediment control.

"ESC Act" means the Erosion and Sediment Control Law, Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

"Erosion and Sediment Control Plan", "conservation plan" sediment control plan" or "ESC plan", means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of all decisions contributing to conservation treatment. The plan shall contain all major conservation decisions and all information deemed necessary by the plan-approving authority to assure ensure that the entire unit or units of land will be so treated to achieve the conservation objective.

"Inspector" means anyone who, as a representative of a program authority, is responsible for periodically examining the erosion and sediment control activities and premises of a land-disturbing activity for consistency with the Erosion and Sediment Control Law and Regulations.

"Plan reviewer" means anyone who is responsible for determining the accuracy of erosion and sediment control ESC plans and supporting documents or SWM plans and supporting documents for approval by a program VESCP authority or a VSMP authority as may be applicable in the areas of ESC or SWM.

"Program administrator" means the person or persons responsible for administering and enforcing the erosion and sediment control program VESCP or VSMP of a program VESCP authority or a VSMP authority as may be applicable in the areas of ESC or SWM.

"Program authority" means a soil and water conservation district, county, city or town which has adopted an erosion and sediment control program which has been approved by the board.

"Project inspector" means anyone who, as a representative of a VESCP authority or a VSMP authority, is responsible for periodically examining the ESC or SWM activities and premises of a land-disturbing activity for compliance with the ESC Act and Regulations or the SWM Act and Regulations as may be applicable.

"State erosion and sediment control program" or "state program" means the program administered by the board through the Director of the Department of Conservation and Recreation pursuant to the Erosion and Sediment Control Law and 4VAC50-30-10 et seq., Erosion and Sediment Control Regulations.

"Stormwater management plan" or "SWM plan" means a document containing material describing methods for complying with the requirements of a VSMP and the SWM Act and its attendant regulations.

"SWM" means stormwater management.

"SWM Act" means the Virginia Stormwater Management Act, Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

"Virginia Erosion and Sediment Control Program" or "VESCP" means a program approved by the board that has been established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement where authorized in the ESC Act and this chapter, and evaluation consistent with the requirements of the ESC Act and this chapter.

"Virginia Erosion and Sediment Control Program authority" or "VESCP authority" means an authority approved by the board to operate a Virginia erosion and sediment control program. An authority may include a state entity, including the department; a federal entity; a district, county, city, or town; or for linear projects subject to annual standards and specifications, electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 of the Code of Virginia.

"Virginia Stormwater Management Program" or "VSMP" means a program approved by the board after September 13, 2011, that has been established by a VSMP authority to manage the quality and quantity of runoff resulting from land-disturbing activities and shall include such items as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement, where authorized in the SWM Act and associated regulations, and evaluation consistent with the requirements of the SWM Act and associated regulations.

"Virginia Stormwater Management Program authority" or "VSMP authority" means an authority approved by the board after September 13, 2011, to operate a Virginia Stormwater Management Program or, until such approval is given, the department. An authority may include a locality; state entity, including the department; federal entity; or, for linear projects subject to annual standards and specifications in accordance with subsection B of § 10.1-603.5 of the Code of Virginia, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to § 15.2-5102 of the Code of Virginia.

4VAC50-50-20. Purpose.

The purpose of this chapter is to guide the issuance of certificates of competence required by §§ 10.1-561 E and 10.1-561.1 of the ESC Act and § 10.1-603.4:2 of the SWM Act.

4VAC50-50-30. Applicability.

This chapter is applicable to:

1. Every program VESCP authority or VSMP authority that administers an erosion and sediment control program a VESCP or VSMP as may be applicable. Staff of program a VESCP authority must be certified in accordance with §§ 10.1-560 E and 10.1-561.1 of the ESC Act. Staff of a VSMP authority must be certified in accordance with § 10.1-603.4:2 of the SWM Act.

2. Anyone who is contracted by a program VESCP authority or a VSMP authority to perform any or all of the functions of that authority as may be applicable. This person will be subject to the same certification requirements as the authority.

3. Anyone voluntarily seeking certificates of competence from the board for classifications described in 4VAC50-50-40 of this chapter.

4VAC50-50-40. Certificates of competence.

A. Certificates of competence shall be issued by the board in accordance with the requirements of 4VAC50-50-50 for the following classifications:

1. Program administrator for ESC. The person or persons employed as the erosion and sediment control program VESCP administrator.

2. Plan reviewer for ESC. The person or persons who review conservation reviews ESC plans to be approved by the program VESCP authority.

3. Inspector Project inspector for ESC. The person or persons responsible for inspecting erosion and sediment control practices to ensure compliance with the Virginia Erosion and Sediment Control Law and Regulations.

4. Combined administrator for ESC. The person or persons responsible for performing the combined duties of administration program administrator, plan review reviewer and inspection of regulated activities of a local program project inspector for a VESCP authority.

5. Program administrator for SWM. The person employed as the VSMP administrator.

6. Plan reviewer for SWM. The person who reviews SWM plans to be approved by the VSMP authority.

7. Project inspector for SWM. The person responsible for inspecting regulated activities to ensure compliance with the SWM Act and Regulations.

8. Combined administrator for SWM. The person responsible for performing the combined duties of program administrator, plan reviewer, and project inspector for a VSMP authority.

B. Any person employed as a plan reviewer who is licensed as a professional engineer, architect, certified landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia or as a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia shall qualify as a certified plan reviewer for ESC and will not require a certificate of competence from the board. In lieu of a person holding this board certificate of competence, such person shall produce a current professional license or certification upon request of the department.

C. Any person who holds a level II certificate of competence from the board in areas of plan review, project inspection or as a program administrator which was obtained prior to adoption of the mandatory certification as specified in § 10.1-561.1 B of the Act shall be deemed to satisfy the requirements of that area of certification. Any certification obtained before the adoption of the mandatory program which satisfies the requirements will be valid until its previously scheduled expiration date valid and unexpired certificate of competence issued by the board in the classification of ESC or SWM, or who obtains such a certificate, and who later successfully obtains an additional certificate of competence from the board in the parallel ESC or SWM classification may surrender both certificates of competence to the board and request in writing issuance of a dual certificate showing certification in both classifications. Such a request must be made while both of the ESC and SWM certificates of competence obtained are valid and unexpired. The expiration date of the dual certificate shall be three years from the date of expiration of the additional certificate acquired.

4VAC50-50-50. Eligibility requirements.

A. Certification may be obtained by satisfactorily completing and submitting an application to the department for review and approval and:

1. By obtaining a total of six months 800 hours of experience (800 hours) as a an ESC or SWM plan reviewer, project inspector, or combined duties administrator and obtaining a passing score on the certification examination administered by the department in the applicable ESC or SWM area; or

2. By enrolling in and completing a board-approved training program in the areas classifications of program administrator, plan reviewer, project inspector, or combined administrator within 12 months of the time of enrollment (starting with the first training course enrolled) and obtaining within one year of completion of the training program a passing score on the certification examination administered by the department in the applicable ESC or SWM area.

a. The training program for project inspectors for ESC will consist of attending and completing courses/seminars in "Basic Erosion and Sediment Control in Virginia" and "Erosion and Sediment Control for Inspectors."

b. The training program for plan reviewers for ESC will consist of attending and completing courses/seminars in "Basic Erosion and Sediment Control in Virginia" and "Erosion and Sediment Control for Plan Reviewers."

c. The training program for program administrators for ESC will consist of attending the seminar "Basic Erosion and Sediment Control in Virginia."

d. The training program for combined administrators for ESC will consist of attending the courses/seminars "Basic Erosion and Sediment Control in Virginia,", "Erosion and Sediment Control for Inspectors," and "Erosion and Sediment Control for Plan Reviewers."

e. The training program for project inspectors for SWM will consist of attending and completing courses/seminars in "Basic Stormwater Management in Virginia" and "Stormwater Management for Inspectors."

f. The training program for plan reviewers for SWM will consist of attending and completing courses/seminars in "Basic Stormwater Management in Virginia" and "Stormwater Management for Plan Reviewers."

g. The training program for program administrators for SWM will consist of attending the seminar "Basic Stormwater Management in Virginia."

h. The training program for combined administrators for SWM will consist of attending the courses/seminars "Basic Stormwater Management in Virginia," "Stormwater Management for Inspectors," and "Stormwater Management for Plan Reviewers."

B. Certification and recertification shall be valid for three years and will expire on the last day of the expiration month except as otherwise set out in 4VAC50-50-40 C or 4VAC50-50-90.

C. Recertification may be obtained for classifications outlined in 4VAC50-50-40 of this chapter prior to the expiration date of a certification by:

1. Obtaining a passing score on the certification examination; or

2. Successfully completing a board-approved training program. during the last 12 months of the term of the certificate but prior to its expiration date;

3. Being a professional registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia or a professional soil scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1, and paying the required fee for recertification. Such professionals shall be deemed to satisfy the provisions of this subsection for classifications in subdivisions A 1 through 4 of 4VAC50-50-40. However, such professionals when in the classification of plan reviewer for ESC shall be exempt from the recertification requirements and fees of this chapter provided they maintain their professional license; or

4. Being a professional registered in the Commonwealth pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia and paying the required fee for recertification. Such professionals shall be deemed to satisfy the provisions of this subsection for classifications in subdivisions A 5 through 8 of 4VAC50-50-40.

4VAC50-50-55. Classification acknowledgement for the purposes of program compliance reviews.

For the purposes of VESCP or VSMP compliance reviews and evaluations, the certification requirements of §§ 10.1-561.1 and 10.1-603.4:2 of the Code of Virginia shall be deemed to have been met if the VESCP or the VSMP authority has a person or persons enrolled in the board's ESC or SWM training programs for the necessary classifications and such person or persons obtains certification within one year of completing the necessary training programs.

4VAC50-50-60. Fees.

A. Application and, recertification, and dual certificate issuance fees shall be collected to cover the administrative cost for the certification program.

B. A fee will also be charged to present education and training program courses/seminars which support the certification program.

C. Fees are nonrefundable and shall not be prorated.

4VAC50-50-70. Examination.

A. A board approved examination shall be administered at least twice a year.

B. An individual may take the certification examination for the desired certificate of competence after fulfilling the prerequisite experience requirement or completing a board-approved training program in accordance with 4VAC50-50-50 of this chapter.

C. An individual who is unable to take an examination at the time scheduled shall notify the department within 48 hours prior to the date of the examination; such an individual may be rescheduled for the next examination. Failure to notify the department may require an individual to submit a new application and payment of fees in accordance with this chapter.

D. An applicant who is unsuccessful in passing an examination will be allowed to pay the appropriate fee and retake the appropriate exam within one year without resubmitting an application. After the one-year period has elapsed, an applicant will be required to submit a new application with the appropriate fee in accordance with this chapter in order to take the examination. Application for examination must be received at least 60 days prior to the scheduled examination by the department to be eligible to sit for the examination.

E. An acceptable A minimum passing score of 70% will be required on the appropriate certification exam exam(s).

F. All applicants will be notified in writing within 60 days of the results of the examination.

4VAC50-50-80. Application.

A. Any person seeking certification by a combination of experience and examination or by the combination of completion of the training program and examination shall submit a completed application with the appropriate fee(s) attached. The application shall contain the following:

1. The applicant's name, address, daytime phone number, social security number, and name and address of business as well as the date the application was filled out.

2. The classification of certification applying for as set forth in 4VAC50-50-40 of this chapter, and if applying for initial certification or recertification.

3. If any special arrangements must be provided for because of a handicap.

4. A verification of all work experience signed and dated by applicant's supervisor.

5. A signed and notarized affidavit confirming that all statements in the application are believed to be true.

Incomplete applications will be returned to the applicant. All applications must be received in the appropriate department office or by mail post marked at least 60 days prior to the scheduled examination date in order to be able to sit for the examination.

B. All applications of candidates will be reviewed by the department to determine eligibility for certification. All applicants will be notified of the results of the review within 30 days of receipt of the application. Any applicant may appeal the review, in writing, to the board within 30 days of the department's determination. No applicant will be approved for certification unless they meet all requirements of this chapter.

C. Applicants who have been found ineligible to sit for an examination may request further consideration by submitting a letter to the board with the necessary evidence of additional qualifications. No additional fee will be required provided that all requirements for certification are met within one year from the date of original application.

4VAC50-50-90. Discipline of certified personnel.

The board may suspend, revoke or refuse to grant or renew the certification of any person if the board, in an informational fact finding under § 9-6.14:11 § 2.2-4019 of the Code of Virginia, finds that:

1. The certification was obtained or renewed thorough fraud or misinterpretation;

2. The certified person has violated or cooperated with others in violating any provision of this chapter;

3. The certified person has not demonstrated reasonable care, judgment, or application of his knowledge and ability in the performance of his duties; or

4. The certified person has made any material misrepresentation in the course of performing his duties.

VA.R. Doc. No. R13-3316; Filed October 3, 2012, 9:05 a.m.