9VAC25-850 Erosion and Sediment Control and Stormwater Management Certification Regulations

REGULATIONS

Vol. 30 Iss. 2 - September 23, 2013

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Chapter 850

Final Regulation

REGISTRAR'S NOTICE: Enactment 7 of Chapters 756 and 793 of the 2013 Acts of Assembly transfers the powers related to administration and implementation of the Virginia Stormwater Management Act, the Erosion and Sediment Control Law, and the Chesapeake Bay Preservation Act from the Virginia Soil and Water Conservation Board to the State Water Control Board. Pursuant to enactment 8 of Chapters 756 and 793, initial actions of the State Water Control Board to adopt, with necessary amendments, the regulations implementing these programs are exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

Title of Regulation: 9VAC25-850. Erosion and Sediment Control and Stormwater Management Certification Regulations (adding 9VAC25-850-10 through 9VAC25-850-100).

Statutory Authority: § 62.1-44.15:52 of the Code of Virginia.

Effective Date: October 23, 2013.

Agency Contact: William K. Norris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone [phone], FAX [phone], TTY [phone], or email [e-mail].

Summary:

This regulatory action is a result of Chapters 756 and 793 of the 2013 Acts of Assembly, which transfer oversight of water quality planning and laws dealing with stormwater management, erosion and sediment control, and the Chesapeake Bay Preservation Areas from the Department of Conservation and Recreation and Virginia Soil and Water Conservation Board to the Department of Environmental Quality and State Water Control Board. The conforming amendments change the chapter and section numbers so that the regulation appears under the State Water Control Board in the Virginia Administrative Code and update the agency name, Code of Virginia citations, and Virginia Administrative Code cross references to reflect the change in administration of the program from the Department of Conservation and Recreation and Virginia Soil and Water Conservation Board to the Department of Environmental Quality and State Water Control Board. In addition, the amendments clarify responsible land disturber requirements; make additional changes for clarification and to conform to current practice; and add a provision delegating certain authority of the State Water Control Board to the Director of the Department of Environmental Quality.

CHAPTER 50 850
EROSION AND SEDIMENT CONTROL AND STORMWATER MANAGEMENT CERTIFICATION REGULATIONS

4VAC50-50-10. 9VAC25-850-10. Definitions.

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

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

"Board" means the Virginia Soil and Water Conservation Board State Water Control 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 9VAC25-850-50 related to the specified classifications (4VAC50-50-40 9VAC25-850-40) 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 9VAC25-850-50 in the specified classifications within the areas of ESC or SWM.

"Certified combined administrator for ESC" means an employee or agent of a VESCP authority who holds a certificate of competence from the board in the combined ESC classifications of program administrator, plan reviewer, and project 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 VESCP authority who holds a certificate of competence from the board in the classification of project 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 VESCP authority who: (i) holds a certificate of competence from the board in the classification of plan reviewer in the area of ESC; (ii) 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 VESCP authority who holds a certificate of competence from the board in the classification of program 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.

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

"Classification" refers to the four specific 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 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 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 Department of Environmental Quality.

"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" 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 to ensure that the entire unit or units of land will be so treated to achieve the conservation objective.

"ESC" means erosion and sediment control.

"ESC Act" means the Erosion and Sediment Control Law, Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

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

"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.

"Responsible land disturber" or "RLD" means an individual holding a certificate issued by the department who is responsible for carrying out the land-disturbing activity in accordance with the approved ESC plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD must be designated on the ESC plan or permit as a prerequisite for engaging in land disturbance.

"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.) 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 6 3.1 of Title 10.1 62.1 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 62.1-44.15:31 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. 9VAC25-850-20. Purpose.

The purpose of this chapter is to guide the issuance of certificates of competence required by §§ 10.1-561 62.1-44.15:52 E and 10.1-561.1 62.1-44.15:53 of the ESC Act and § 10.1-603.4:2 62.1-44.15:30 of the SWM Act.

4VAC50-50-30. 9VAC25-850-30. Applicability.

This chapter is applicable to:

1. Every VESCP authority or VSMP authority that administers a VESCP or VSMP as may be applicable. Staff of a VESCP authority must be certified in accordance with §§ 10.1-560 62.1-44.15:51 E and 10.1-561.1 62.1-44.15:53 of the ESC Act. Staff of a VSMP authority must be certified in accordance with § 10.1-603.4:2 62.1-44.15:30 of the SWM Act.

2. Anyone who is contracted by a 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 9VAC25-850-40.

4VAC50-50-40. 9VAC25-850-40. Certificates of competence.

A. Certificates of competence shall be issued by the board in accordance with the requirements of 4VAC50-50-50 9VAC25-850-50 for the following classifications:

1. Program administrator for ESC. The person employed as the VESCP administrator.

2. Plan reviewer for ESC. The person who reviews ESC plans to be approved by the VESCP authority.

3. Project inspector for ESC. The person 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 responsible for performing the combined duties of program administrator, plan reviewer and 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. A certificate shall be issued by the board for the responsible land disturber or RLD for ESC. The RLD is the person responsible for carrying out the land-disturbing activity.

B. C. 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. D. Any person 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 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. 9VAC25-850-50. Eligibility requirements.

A. Certification may be obtained by satisfactorily completing and submitting an application to the department for review and approval in accordance with 9VAC25-850-80 and:

1. By obtaining a total of 800 hours of experience as an ESC or SWM plan reviewer, project inspector, or combined 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, within 12 months, a board-approved training program in the classifications of program administrator, plan reviewer, project inspector, or combined administrator 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 course "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."

3. By enrolling in and completing the training program and obtaining a passing score on the certification examination administered by the department for responsible land disturbers for ESC.

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 9VAC25-850-40 D or 4VAC50-50-90 9VAC25-850-90.

C. Recertification may be obtained for classifications outlined in 4VAC50-50-40 9VAC25-850-40 of this chapter prior to the expiration date of a certification by:

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

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 and subsection B of 4VAC50-50-40 9VAC25-850-40. 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 and subsection B of 4VAC50-50-40. 9VAC25-850-40; or

5. Completing continuing professional education hours in accordance with department guidance.

4VAC50-50-55. 9VAC25-850-55. 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 62.1-44.15:53 and 10.1-603.4:2 62.1-44.15:30 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 set forth in 9VAC25-850-50 A 1 and A 2 a through h for the necessary classifications and such person or persons obtains certification within one year of completing the necessary training programs.

4VAC50-50-60. 9VAC25-850-60. Fees.

A. Application Certification, 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. 9VAC25-850-70. Examination.

A. A board approved 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 9VAC25-850-50.

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 unless a later time is established by the department; 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 unless a later date is established by the department to be eligible to sit for the examination.

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

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

4VAC50-50-80. 9VAC25-850-80. Application.

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

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

2. The classification of certification the applicant is applying for as set forth in 4VAC50-50-40 of this chapter 9VAC25-850-40, and if designation whether the applicant is 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, if required.

5. A signed and notarized affidavit confirming that all statements statement that the information provided in the application are believed to be is true and accurate.

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

The department may establish other acceptable forms of documentation for the components of the application that provide similar assurances as those set forth in this subsection.

B. All complete 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 he meets the 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. 9VAC25-850-90. 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 informal fact finding under § 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.

9VAC25-850-100. Delegation of authority.

The director, or his designee, may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

VA.R. Doc. No. R14-3683; Filed August 30, 2013, 3:13 p.m.