Proposed Text
Part XVI
Procedures For Reviewing and Approving Design Specifications and Pollutant Removal Credits For BMPs
4VAC50-60-1300. Authority.
Subsection 2 of § 10.1-603.4 of the Code of Virginia provides authority for the board to establish minimum design criteria for measures to control nonpoint source pollution and localized flooding. For the purposes of this Part, this includes but is not limited to Total Phosphorus, Total Nitrogen, and Total Suspended Solids, as defined in 4VAC50-60-1310. It also states that such criteria shall be periodically modified as required in order to reflect current engineering methods. Subsection (A) (11) of § 10.1-603.4 of the Code of Virginia further states that the regulations shall provide for the evaluation and potential inclusion of emerging or innovative stormwater control technologies that may prove effective in reducing nonpoint source pollution.
In accordance with § 10.1-603.4 (A) subsections 2 and 11, 4VAC50-60-65 C provides that BMPs differing from those listed in 4VAC50-60-65 B shall be reviewed and approved by the director in accordance with procedures established by the BMP Clearinghouse Committee and approved by the board. Section 4VAC50-60-65 B further states that design specifications and the pollutant removal credits for all approved BMPs are found on the Virginia Stormwater BMP Clearinghouse website and that such BMPs may be utilized to effectively reduce the phosphorus load and runoff volume in accordance with the Virginia Runoff Reduction Method.
4VAC50-60-1310. Definitions.
"Applicant" means the person that is seeking approval for the permitted use of a technology through the VTAP or other board authorized process. The applicant may be the manufacturer or the vendor.
"Conditional use designation" or "CUD" means a designation given to MTDs that have undergone rigorous field testing in at least one location using a board-approved protocol for testing pollutant removal from post-construction stormwater runoff.
"Detection limit" means the lowest limit to which a concentration or substance can be distinguished from a blank to a 95 percent level of confidence within a specified analytical method.
"Event mean concentration" or "EMC" means the total mass load of a pollutant parameter divided by the total runoff water volume discharged during an individual storm event.
"General use designation" or "GUD" means a designation given to MTDs that confers a general acceptance for the stormwater MTD based on MTD pollutant removal performance and factors that influence the performance. Upon approval by the director, such permitted MTD shall be listed on the Virginia Stormwater BMP Clearinghouse website with its conditions for use.
"Manufactured treatment device" or "MTD" means fabricated BMPs used to remove pollutants from stormwater runoff. MTD designs may involve proprietary components or processes. MTDs may not be installed in Virginia for the treatment of stormwater runoff quality control credit unless they are approved by the director in accordance with Section I of this Part and the VTAP process and are listed for permitted use on the website.
"Non-proprietary BMP" means any stormwater BMP used to remediate stormwater that was developed in the public domain; is not patented, and for which design specifications are publicly available; and installation of which is not limited by licensing or royalty considerations.
"Pilot use designation" or "PUD" means a designation given to MTDs for the purpose of collecting field performance data according to the VTAP when the performance data do not meet the standards of applying for a CUD or GUD.
"Pollutant removal" means the reduction by the MTD of one or more pollutants including, but not limited to, phosphorus, sediment, or nitrogen in stormwater. Data collected on pollutant removal efficiency is utilized to establish the pollutant removal credit for TP, TSS, or TN or other pollutants, respectively for the BMP or MTD.
"Pollutant removal credit" means the percent reduction in the load or EMC of a pollutant as runoff flows into and out of a BMP or MTD, also referred to as the pollutant removal efficiency.
"Qualifying storm event" means a rainfall event greater than 0.1 inch, separated in time from previous rainfall events by six hours or more.
"Quality assurance project plan" or "QAPP" means a document that describes the objectives of a project, and the processes and activities necessary to develop data that will support those objectives.
"Reporting limit" means the practical quantification limit and is defined as five times the detection limit within a specific analytical method. The reporting limit is a higher limit sufficient to distinguish measurements from background noise.
"Suspended sediment concentration" or "SSC" means the ratio of the mass of dry sediment in a water-sediment mixture to the volume of the water-sediment mixture, typically expressed in milligrams of dry sediment per liter of water-sediment mixture. Dry sediment is measured by first filtering the sample, using a filter of known weight, drying the residue to remove all water, and reweighing it. SSC differs from TSS in that it is a whole volume sampling procedure.
"Technical evaluator" means the department or its designee that is responsible for reviewing a MTD application and associated materials and based on this review for developing recommendations regarding use-designation and pollutant removal credit for the committee's and director's consideration.
"Technology Assessment Protocol Ecology" or "TAPE" means the assessment process for evaluating and approving stormwater MTDs, originally developed and implemented by the Washington Department of Ecology in 2002 and subsequently amended in 2004, 2008 and 2011.
"Technology Acceptance Reciprocity Partnership" or "TARP" means an agreement among a number of states, including Virginia, establishing a set of uniform criteria for demonstrating stormwater technologies and developing test quality assurance (QA) plans for certification or verification of MTD performance claims. The agreement provides for reciprocal acceptance of performance tests and data and approval results of partner states, in order to reduce duplicative or overlapping demonstration and performance testing of technologies; maximize research and development dollars; and certify or verify the technology in accordance with performance claims and state regulatory standards.
"Technology evaluation report" or "TER" means a document providing information regarding performance testing and data that have been validated and analyzed, and that is submitted to the department as part of the application for MTDs seeking a PUD, CUD or GUD in Virginia.
"Total nitrogen" or "TN" means a measure of all organic and inorganic forms of nitrogen in a water sample, sediment sample or, where applicable, in plant or animal tissue.
"Total phosphorus" or "TP" means a measure of all phosphorus, including organic and inorganic phosphorus in particulate and soluble forms, in a water sample, sediment sample, or, where applicable, in plant or animal tissue.
"Total suspended solids" or "TSS" means that portion of the solids, organic or inorganic particles including sand, mud, and clay particles and associated pollutants, carried by stormwater that can be captured on a standard glass fiber filter.
"Virginia Stormwater BMP Clearinghouse Committee" or "Committee" means a permanent stakeholder advisory group established by the department to establish procedures for board approval for evaluating BMPs for permitted use in Virginia and the conditions under which they may be permitted; for providing recommendations to the director regarding design specifications, use-designation levels, and pollutant removal credits for applicant requested BMPs; and for conducting such other activities related to BMP evaluation as may be assigned by the department.
"Virginia Stormwater BMP Clearinghouse website" means as is defined in 4VAC50-60-10 and for the purposes of this Part may be referred to as "Website" and is located at http://www.vwrrc.vt.edu/swc.
"Virginia Technology Assessment Protocol For Evaluating Stormwater Manufactured Treatment Devices" or "VTAP" means the assessment process for approving and listing MTDs on the Virginia Stormwater BMP Clearinghouse website. The testing protocol is intended for volume-based and flow-rate based stormwater MTDs and is not suitable for all stormwater treatment practices. This testing protocol does not apply to non-proprietary BMPs, and the protocol is not for use in the evaluation of erosion and sediment control technologies or products.
SECTION I
Virginia Technology Assessment Protocol (VTAP) For Evaluating Stormwater Manufactured Treatment Devices (MTDs)
4VAC50-60-1320. Applicability.
In accordance with the authorities set out in 4VAC50-60-1300, MTDs shall be assessed in accordance with Section I of this Part and the assessment procedures found in the document Virginia Technology Assessment Protocol For Evaluating Stormwater Manufactured Treatment Devices that is incorporated by reference.
4VAC50-60-1330. VTAP limitations and liability.
The department shall not accept or have responsibility or liability for performance of stormwater technologies being evaluated using the VTAP and the procedures established in this Part. Those persons with which the department contracts to implement this Part, including any technical evaluators, program administrators, or the committee, are advisors to the department and the department remains solely responsible for decisions made regarding implementation of this Part.
4VAC50-60-1340. Use of devices.
A. When the director approves the permitted use of a MTD in accordance with its stated conditions, the VSMP authority shall have authority to preclude the on-site use of the approved MTD, or to require more stringent conditions upon its use, for a specific land-disturbing project based on a review of the stormwater management plan and project site conditions in accordance with 4VAC50-60-108; however, such preclusions or stringent conditions shall not be uniformly applied jurisdiction-wide unless the VSMP authority complies with the requirements of subsection B or C.
B. In accordance with processes and purposes set out in § 10.1-603.7 of the Code of Virginia, a locality is authorized to adopt more stringent stormwater management ordinances than those necessary to ensure compliance with the board's minimum regulations. Pursuant to this authority, the locality may, by ordinance, control the use of specified MTDs within its jurisdiction. Localities shall report to the board when more stringent stormwater management ordinances are determined to be necessary pursuant to § 10.1-603.7 of the Code of Virginia.
C. In accordance with 4VAC50-60-65, a VSMP authority may establish limitations on the use of specific BMPs following the submission of the proposed limitation and written justification to the department.
4VAC50-60-1350. Board, director and department administrative responsibilities.
A. The board shall be responsible for approving the VTAP and revisions to the VTAP established by the committee.
B. The department's director is responsible for reviewing, and where found to be appropriate, approving through an applicant permitting process, design specifications, use-designation levels, and pollutant removal credits for applicant requested MTDs. MTDs may not be installed in Virginia for pollutant removal for the treatment of post-construction stormwater runoff unless the director grants a status of PUD, CUD, or GUD.
C. Upon the director's approval of a MTD, the department shall issue a permit to the applicant allowing the use of the MTD under specified conditions set out in the permit.
4VAC50-60-1360. Applicant's or technical advisor's responsibilities.
The applicant or the applicant's technical advisor on behalf of the applicant shall:
1. Submit the use-designation application and associated materials to the department in accordance with 4VAC50-60-1380 and the VTAP;
2. Submit status reports to the department in accordance with 4VAC50-60-1440 and the VTAP;
3. Submit a QAPP to the department for each field test site in accordance with 4VAC50-60-1450 and the VTAP;
4. Keep the QAPP current and review it at least annually to determine if changes are necessary;
5. Submit requests to change approved QAPPs, if applicable, to the department;
6. Notify the department of all installations made in Virginia during the testing period; and
7. Work in collaboration with the technical evaluator(s) to develop information for posting on the website regarding approved MTDs in accordance with 4VAC50-60-1490.
4VAC50-60-1370. Virginia Stormwater BMP Clearinghouse Committee administration and responsibilities.
A. The department chairs the committee and may contract out for services to assist the department in the administration of the committee and the development and maintenance of the Virginia Stormwater BMP Clearinghouse website.
B. Individuals appointed by the director as members of the committee shall have experience with stormwater BMPs. Members who have contracted with any MTD manufacturer or applicant within the prior five years, at the time of committee action, shall not participate in the discussion on that application; however, members that are known to be directly employed by the applicant may engage in discussion related to the application. In both of these cases, such members shall not be permitted to vote on any application under committee consideration. Members shall disclose to the department all contracting relationships with MTD manufacturers or vendors at least annually on a schedule set by the department, and as new contracting relationships are entered into.
C. The committee shall be responsible for developing procedures for board approval that shall be utilized by the director in his consideration of MTDs for approval and in establishing the MTDs design specifications, use-designation levels, and pollutant removal credits.
D. The committee shall consider information provided by the applicant and recommendations and analysis provided by the technical evaluator(s) and provide their additional recommendations to the director regarding approval of the MTD and the conditions under which use of the MTD should be permitted.
E. The committee shall hold regularly scheduled quarterly meetings to conduct business. Should no business be pending, such meetings may be canceled. The committee chair may also call additional meetings of the committee should it become necessary to efficiently address business functions of the committee in a timely fashion provided that a quorum may be obtained.
F. A quorum of at least 60 percent of the appointed committee members that are authorized to vote on an issue pursuant to subsection B, not including any vacancies, must be present before motions can be introduced or passed. A member who must be absent may send a substitute to the meeting; however, the substitute shall not exercise the absent member's voting privileges.
4VAC50-60-1380. Application submittal and review process.
A. In order for an applicant to have a MTD considered for PUD, CUD or GUD permitted use, the applicant shall submit a Use-Designation Application Form and associated materials to the department. Application materials shall be submitted in an electronic version in a manner determined by the department, to the department at the address listed on the application form. The department shall acknowledge receipt of the application. At a minimum, an application shall include a:
1. Completed Use-Designation Application Form
2. Stormwater MTD Demonstration Site Summary Form for each field test site
3. Technical Evaluation Report
4. Certification and Authorization Statement signed and dated by the company president or responsible officer of the applicant organization. The statement shall read as follows: "I [responsible party] certify that all information submitted is to the best of my knowledge and belief true, accurate, and complete. The information was accumulated using approved methods specified in the Virginia Technology Assessment Protocol For Evaluating Stormwater Manufacture Treatment Devices, unless otherwise noted. I understand that any misrepresentation or misuse of information will result in immediate denial of the technology being demonstrated and may prohibit me or the company I represent from seeking future approvals. Further, I authorize the department or its designee to enter and inspect field sites where the MTD is being tested."
B. When submitting a MTD application, the applicant shall indicate what use designation is being applied for. Use designation determinations shall be informed by the following criteria:
1. Applicants of MTDs with full-scale laboratory performance data for TP, TN, TSS, or SSC and no, or limited, field testing data may submit a PUD application.
2. Applicants of MTDs with field performance data may submit a CUD application provided:
a. The pollutant removal data for TP, TSS, or TN and other parameters associated with the pollutant(s) as required for approval according to the specified protocol were collected from at least one field site, and
b. The testing procedures conform to an established protocol, such as with VTAP, TARP (2003), TAPE (WSDOE 2002, 2004, 2008, 2011), or other department accepted protocol.
3. Applicants of MTDs with field performance data that meet the following criteria may submit a GUD application provided:
a. The pollutant removal data for TP, TSS, or TN and other parameters associated with the pollutant(s) as required for approval according to the specified protocol were collected from at least two field sites;
b. The testing procedures conform to the VTAP for at least one test field site. The field performance test site shall be representative of urban stormwater runoff in Virginia; and
c. The testing procedures conform with VTAP, TARP (2003), TAPE (WSDOE 2002, 2004, 2008, 2011), or other established testing protocol that is accepted by the department, for the other field test site(s).
C. Applicants of MTDs shall collect samples past at least a single maintenance cycle to verify maintenance requirements and to document how MTD performance changes over time. Monitoring is therefore required for the qualifying storm event just prior to and immediately after maintenance. If it can be shown that maintenance returns the MTD to its original condition, there is no need to show performance past one maintenance cycle; however, the requirement of meeting the minimum number of monitored qualified storm events shall still be met. For expected maintenance cycles greater than two years, the applicant shall agree in writing to conduct long-term periodic monitoring to show how performance varies over time and shall monitor the qualifying storm events immediately before and after maintenance.
D. The TER shall contain the following elements developed in accordance with the VTAP:
1. Title Page;
2. Executive Summary;
3. Performance Claim;
4. Technology Description;
5. Test Methods and Procedures Used;
6. Test Monitoring Equipment Used;
7. Data Verification and Validation;
8. Data Summary;
9. Data Quality Assessment;
10. Conclusions, Recommendations, and Limitations;
11. Appendices; and
12. A certification of the TER in accordance with 4VAC50-60-1360.
E. Fees shall be paid in accordance with 4VAC50-60-1540.
F. Applications shall be reviewed for completeness by the technical evaluator(s) within 20 calendar days of receipt. Applications shall be reviewed for completeness in the order received. The department shall notify the applicant in writing of the status of the application following its review for completeness. If found to be incomplete, the applicant shall be advised as to why the application was considered to be incomplete and shall be provided 30 calendar days to update the application from the date of written notification issuance. Failure of the applicant to submit the requested additional information to the department within 30 calendar days of the date on the notification may result in the department terminating the review. The department shall notify the applicant in writing when such a determination has been made.
G. If the application is determined to be complete, the technical evaluator(s) shall complete the draft assessment of the application and recommend a use designation and pollutant removal credit to the committee, the department, and the applicant within 60 calendar days of the receipt of a complete application.
H. Within seven calendar days of the issuance of the technical evaluator(s)' assessment, the TER shall be posted on the website for public comment for a period of 30 calendar days commencing the date of posting. The technical evaluator(s) shall review and evaluate the public comments within 30 calendar days of the closure of the public comment period on the TER.
I. The application materials, recommendations made by technical evaluator(s), public comments, and responses to the comments shall be provided to the committee in advance of their next scheduled meeting.
J. The committee shall review the application materials, recommendations made by technical evaluator(s), public comments, and responses to the comments. The committee shall consider the technical evaluator's use-designation recommendation and pollutant removal credit recommendation and determine the committee's recommendations. The committee shall review applications in the order received by the committee. Depending on the number of applications to be reviewed, the submitted application shall be assessed at the earliest possible scheduled committee meeting.
K. The department shall forward the technical evaluator(s)' and committee's final recommendations to the director and the applicant.
L. The director shall consider the application materials; recommendations made by technical evaluator(s), by the committee, and by department staff; and public comments and the responses to the comments; and using his best professional judgment, determine an appropriate use designation and pollutant removal credit within 45 calendar days following the receipt of the final recommendations. The director shall decide to approve a permitted use designation, revoke the current use designation, or grant an extension of the testing period for a specified time. For a MTD permitted for conditional use as a PUD, the pollutant removal credit for TP, TN, or TSS shall not exceed 30%. For a CUD, the pollutant removal credit for TP, TN, or TSS shall not exceed 50% when non-VTAP testing protocols have been followed. If the current use designation is revoked, the applicant shall be notified in writing of the director's decision and reason for it. If the testing period is extended, the applicant shall continue testing in accordance with the test time specified by the director.
M. The department, the department's director, the technical evaluator(s), and the committee reserve the right to request additional information on a case-by-case basis during the application review and evaluation process.
N. If a MTD is not awarded any type of approval or if the review of the application has been terminated due to failure of the applicant to submit required information within the time allowed for an application that had been determined to be incomplete, the applicant of the MTD shall need to reapply and pay the appropriate use permit fee once the identified issues have been addressed. The applicant for an expired MTD that has not received an extension shall submit a new application and pay the appropriate use permit application fee set out in 4VAC50-60-1540 in order to have the MTD re-evaluated.
4VAC50-60-1390. Processing timelines.
Should it be found that application volume or other issues outside of the department's, the technical evaluator(s)', or the committee's control are such that the timelines set out in Section I cannot be reasonably met by the department, the technical evaluator(s), or the committee, the director or his designee has the authority to extend due dates to the minimum amount necessary to accommodate the proper processing of the applications. The applicant shall be advised in writing of such changes and what the revised timeline is.
4VAC50-60-1400. MTD application process - technical evaluator(s)' responsibilities.
A. The technical evaluator(s) shall review applications for MTDs utilizing the procedures set out in Section I of this Part and the VTAP. The technical evaluator shall:
1. Review submitted applications for completeness and consistency with the Stormwater Management Law and this chapter;
2. Review QAPPs and QAPP updates;
3. Review status reports and provide recommendations to the department regarding compliance and potential changes to testing;
4. Periodically inspect, as determined necessary by the technical evaluator(s), the applicant's field testing;
5. Review data validation;
6. Provide written recommendations to the committee and the director regarding the need for additional testing where necessary and identify any limitations of evaluated MTDs;
7. Provide written recommendations to the committee and the director regarding pollutant removal credits to assign to MTDs and regarding applicant requested use-designation levels;
8. Develop draft responses for comments received during the 30-calendar-day public comment period on the TER; and
9. Work in collaboration with the applicant to develop information for the website regarding approved MTDs.
B. The individual(s) serving as the technical evaluator shall not be eligible for appointment to the committee but shall serve as a technical advisor to the committee.
4VAC50-60-1410. Confidentiality.
A. In accordance with §10.1-603.12:2, the board or the department may require every applicant for a MTD use permit, or such a permittee, to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to evaluate the MTD. Disclosure of records of the board or the department relating to any secret formulae, secret processes, or secret methods used by any permittee or under that permittee's direction is prohibited.
B. Proprietary information that is not to be made public shall not be included in the application but instead may be submitted separately to the department along with a completed Confidentiality and Non-Disclosure Agreement in a manner prescribed by the department. It is highly recommended that confidential information not be sent to the department via e-mail. The director or his designee shall evaluate the confidentiality and either:
1. Sign the Agreement and return a copy of the signed Agreement to the applicant; or
2. Deny the request.
C. If the Agreement is signed, the information shall be considered as part of the application and may be only shared with the department's contractors associated with implementing the VTAP process after securing an agreement from all such persons to comply with the terms and conditions of the Agreement. The department and authorized persons the information has been distributed to as part of the evaluation process shall hold the proprietary information for a maximum of 60 calendar days following the department's issuance of a permit to the applicant allowing the use of the MTD under specified conditions set out in the permit. Proprietary information not requested to be returned within the 60-day period shall be properly disposed of by all person's holding such information.
D. If the request is denied, the department shall notify the applicant of the reason for denial and return the information within 30 calendar days to the applicant if requested to do so by the applicant, otherwise, the information will be disposed of by the department. The proprietary information shall not be distributed by the department or considered by the department, the technical evaluator(s), or the director in the evaluation of the MTD application.
4VAC50-60-1420. Technical advisor, data verifier, and data validator responsibilities.
A. An applicant's technical advisor provides oversight of performance testing of the MTD and shall be used at the onset of testing. Support for services provided by the technical advisor is the responsibility of the applicant.
B. The technical advisor shall certify the following components of the MTD testing as outlined in subsection C:
1. QAPP;
2. Oversight of QAPP implementation; and
3. TER.
C. A certification statement shall be signed and dated by the technical advisor for each item and shall be submitted to the applicant and the department as part of the QAPP or application, as applicable.
1. For the QAPP, the statement shall read as follows: "I [technical advisor] with [name of employer] certify this QAPP for the assessment of [MTD name] by [name of manufacturer] and using my best professional judgment, certify that the procedures presented in the QAPP shall provide valid test results and conclusions."
2. For oversight of the QAPP implementation, the statement shall read as follows: "I [technical advisor] with [name of employer] certify that the MTD testing for the assessment of [MTD name] by [name of manufacturer] and the analytical procedures used were performed to the best of my knowledge in accordance with the QAPP approved by the director or his designee and accepted industry analytical methods."
3. For the TER, the statement shall read as follows: "I [technical advisor] with [name of employer] certify that all of the data associated with the assessment of [MTD name] by [name of manufacturer] have been verified and validated, that the information is true and correct, and that the testing protocol requirements were met or exceeded unless stated as exceptions along with this statement." The technical advisor shall list any information not meeting Section I of this Part or the VTAP.
D. The technical advisor shall review the QAPP at least annually to determine if any changes are necessary and shall maintain files documenting the review that may be inspected by the department or its designee upon request.
E. Data verification, validation, and certification shall be conducted in accordance with the VTAP and as outlined in subsections F and G.
F. Each data verifier shall review the project's data records for completeness, for actual content, and against project specifications to ensure and document that the reported results reflect the work that was actually performed. Data verification shall be conducted during or at the culmination of field and laboratory data collection activities and includes checking the transference of data generated via hard copies to digital datasets. Following data verification, each data verifier shall submit the verified data and certification statement to the applicant. The certification statement shall be signed and dated by the data verifier and include either the data verifier's standard certification statement or the following statement: "I, [data verifier] with [name of employer], acknowledge that the data associated with [named activities] for [time period] as part of the assessment of [MTD name] by [MTD manufacturer] have been verified." The applicant shall forward the verified data and signed certification statements to the data validator. This information shall be made available by the applicant to the department or the technical evaluator when requested.
G. A data validator shall determine the quality of a specific data set relative to the end use. Utilizing the measurement quality objectives developed in the QAPP, the data validator shall evaluate whether the data quality goals established during the planning phase have been achieved. Such validation includes a determination, where possible, of the reasons for any failure to meet a method or procedure, and an evaluation of the impact of such failure on the overall data set. The data validator shall sign and date a certification statement acknowledging that the data have been validated and stating that "I, [data validator] with [name of employer] acknowledge that the data associated with the assessment of [MTD name] by [name of manufacturer] have been validated." The data validator shall submit the validated data, the data validation report, and the signed and dated certification statement to the applicant. The applicant shall forward the data validation report and certification statement to the department as part of the application. The department or the technical evaluator(s) may ask to review the validated data or ask the data validator for clarifications and additional information.
4VAC50-60-1430. Conflict of interest by technical advisor.
A. No financial conflict of interest or other forms of conflict of interest shall exist between the technical advisor and the applicant. Financial interest can include, but is not limited to the ownership interest in a manufacturer, royalties from a MTD, or dividends or commissions from a manufacturer. Receipt of a fee for conducting or overseeing testing from one or more manufacturers is not considered a conflict of interest. Examples of financial conflicts of interest include, but are not limited to the following:
1. Having an ownership stake in the manufacturer, vendor, or any other person associated with the technical aspects of the application;
2. Being employed by the manufacturer, vendor, or any other person associated with the technical aspects of the application;
3. Receiving a commission for selling a MTD for the manufacturer, vendor, or any other person associated with the technical aspects of the application;
4. Having a licensing agreement with the manufacturer, vendor, or any other person associated with the technical aspects of the application; or
5. Receiving any funding or grants from the manufacturer, vendor, or any other person associated with the technical aspects of the application beside those associated with the MTD testing program.
B. Technical advisors shall submit a disclosure record of all previous and current personal, professional, and financial relationships with the applicant or any other person associated with the technical aspects of the application and with other MTD manufacturers. For the purposes of determining conflict of interest, relationships with the following people and entities are subject to disclosure, including, but not limited to: the parent company; owners; directors; employees; and immediate family members of owners, directors; and employees, of the applicant's technical advisor, or the independent analytical laboratory. The items in the disclosure record shall not be construed as conflicts of interest but rather disclosure of existing relationship to ensure transparency in the testing process. A disclosed relationship does not represent a conflict of interest when a consultant, university, or analytical laboratory receives fees for testing or overseeing the testing of MTDs from one or more manufacturers.
C. Technical advisors shall submit a signed conflict-of-interest statement to the department and the applicant that includes the following:
1. A statement that there was no conflict of interest regarding the test results; and
2. A statement that all relevant relationships were fully disclosed in the disclosure record.
4VAC50-60-1440. Reporting.
A. Once a MTD has been permitted for use as a PUD or CUD, the applicant shall submit status reports to the department. Reports are due to the department for the preceding 3-month period as follows:
May 1st for the period January 1 March 31;
August 1st for the period April 1 June 30;
November 1st for the period July 1 September 30; and
February 1st for the period October 1 December 31.
The applicant shall submit an electronic version of the report, in a manner prescribed by the department, to the department at the address listed on the website. Status reports shall include, but not be limited to the following information where applicable:
1. Title of the project;
2. Name of applicant submitting the report;
3. Date of the reporting period;
4. Location(s) of installments of the MTD in Virginia during the reporting period;
5. Location of field test site(s);
6. Summary of work accomplished during the reporting period;
7. Summary of findings, including data trends;
8. Summaries of contacts with representatives of the local community, public interest groups, or state/federal agencies;
9. Changes in key project personnel;
10. Projected work for the next reporting period; and
11. Updated milestone chart and targeted dates of completion. The milestones are to be developed from the director or his designee-approved QAPP and be based on expected achievements.
B. The applicant shall continue to submit status reports to the department until submission of the application for a higher use designation at the conclusion of the testing period or until permission for the testing process is suspended or revoked in accordance with 4VAC50-60-1470.
4VAC50-60-1450. QAPP development, review, and approval.
A. Once a MTD has been permitted for use as a PUD or CUD, and use conditions regarding design specifications, use-designation levels, pollutant removal credits, and installation timing have been established, the applicant shall submit a QAPP to the department for each field test site. The QAPP shall specify the procedures to be followed to ensure the validity of the test results and conclusions. The applicant's technical advisor shall review and certify the QAPP in accordance with 4VAC50-60-1420 prior to submittal. QAPPs shall be submitted in an electronic version, in a manner determined by the department, to the department at the address listed on the website.
B. The technical evaluator(s) shall review each QAPP and associated materials within 60 calendar days from distribution by the department and provide recommendations to the department. An opportunity to review the QAPP shall also be provided to the committee members. The committee members shall have 40 calendar days from distribution by the department to provide their written comments to the technical evaluator(s).
C. A QAPP shall be consistent with the VTAP, address all applicable elements found in EPA Requirements for QA Project Plans (EPA QA/R-5) (U.S. EPA 2001), and contain the four following elements where applicable:
1. Project management;
2. Data generation and acquisition;
3. Assessment and oversight; and
4. Data validation and usability activities.
D. In addition to the basic elements, the QAPP shall define and describe the following:
1. Who will use the data;
2. What the project goals/objectives/questions or issues are;
3. What decision(s) will be made from the information obtained;
4. How, when, and where project information will be acquired or generated;
5. What possible problems may arise and what actions can be taken to mitigate their impact on the project;
6. What type, quantity, and quality of data are specified; and
7. How the data will be analyzed, assessed, and reported?
E. Depending on test conditions, the following monitoring documents shall be submitted along with the QAPP:
1. Health and Safety Plan (HASP). A site-specific HASP shall be developed for the test site(s), including confined space entry procedures if applicable;
2. Work Permit for Confined Space. If applicable, the field personnel shall follow the confined space entry procedures identified in the HASP and shall fill out a "permit" for each confined space entry with names and qualifications of the personnel involved and the procedure that was followed;
3. MTD Inspection-Maintenance Log. Following the inspection and maintenance procedures outlined in the MTD's Operation and Maintenance Manual, the field personnel shall record the accumulation of sediment, oil, and trash in the MTD. The recorded data shall be used to establish the maintenance frequency of the MTD.
4. Stormwater Monitoring Equipment Maintenance Log. When performing inspection and basic maintenance of the installed monitoring equipment, the field personnel shall record all findings in this log.
5. Sampling Event Data Sheet. Before and after each sampling event, the field personnel enters a variety of information into this data sheet including sampler pacing, sample bottle replacement, samples collected, flows, storm volumes treated and bypassed, QA/QC performed, and sample identification.
6. Chain of Custody. This sheet tracks the sample containers and specifies how the samples will be analyzed.
F. The director or his designee shall review all comments and recommendations received for each QAPP and shall approve or disapprove each QAPP. If the QAPP is disapproved, the applicant shall modify and resubmit the plan in order to have it reviewed again. Upon approval of the QAPP for the test site, the applicant is authorized to commence field performance testing at the QAPP-approved site(s), the clock on the 24-month test time is started, and the MTD is permitted for use in Virginia.
G. All monitoring shall be conducted in accordance with the VTAP.
H. When a change in procedure is warranted for an approved QAPP, the applicant shall seek approval from the director or his designee to use an amended QAPP. The applicant shall submit the amended QAPP in an electronic version, in a manner determined by the department, to the department at the address listed on the website. A cover letter that explains the nature and rationale for the change shall be submitted with the amended QAPP. The director or his designee shall approve or disapprove the amended QAPP within 30 calendar days of receipt. Once approved, the revised QAPP shall be distributed by the applicant to all the individuals cited in the QAPP distribution list for implementation. Changes in key personnel associated with the project do not need to be approved by the department but shall be reported to the department.
4VAC50-60-1460. Field monitoring and testing.
A. The scope of the field monitoring and testing program shall consist of the following ten elements:
1. Monitoring Site Selection;
2. Quality Assurance Project Plan (QAPP) and Documentation;
3. Monitoring Program Design;
4. Monitoring System Design and Installation;
5. Sample Collection, Analysis, and Quality Control;
6. Data Verification, Validation, and Certification;
7. Data Management;
8. Data Quality Assessment;
9. Estimating Pollutant Removal; and
10. Preparation of the Technical Evaluation Report.
In addition to the requirements of this Part, the applicant shall conduct the specific activities and requirements associated with each of these program elements in accordance with the VTAP.
B. The monitoring program shall be designed in accordance with the procedures described in the approved QAPP. The monitoring program shall reflect the intended applications of the MTD. Samples should be collected over a range of rainfall intensities encountered during the year.
C. Applicants need to verify that the MTD can treat the runoff from one-inch of rainfall. In the QAPP, the applicant shall include methods and calculations used to select the size of the MTD based upon standard design criteria for the MTD, including but not limited to peak flow rate or water quality treatment volume, drainage area, and predicted performance.
D. For the purposes of MTD testing in accordance with this Part and the VTAP, the minimum number of events required to be sampled is set at 18 qualifying storm events with measurable inflow and outflow, provided the confidence level exceeds 50% and approval is granted by the department. Otherwise, 24 qualifying storm events with measurable inflow and outflow is the minimum. At least one qualified storm event with greater than one-inch of rainfall, and at least three qualified storm events with greater than 0.5 inches of rainfall shall be sampled during the testing period. At a minimum, five sets of two qualifying storm events shall be sampled in sequence for a total of 10 storms. Qualifying storm event parameters shall be determined in accordance with the VTAP.
E. Laboratory analyses shall be conducted by an independent laboratory. Use of a laboratory certified under 1VAC30-45 or accredited under 1VAC30-46 is required to receive a GUD designation unless otherwise exempted from such use. Analyses that do not have a procedure established under the Virginia Environmental Laboratory Accreditation Program (VELAP) are exempted from such use and do not need to be performed by a VELAP certified or accredited laboratory.
F. All field and laboratory test data shall be verified, validated, and certified in accordance with 4VAC50-60-1420.
4VAC50-60-1470. Suspension or revocation of permitted use approvals.
A. The director may suspend or revoke the permitted use of a MTD, or amend conditions governing the permitted use of a MTD. In all situations, the department shall notify the applicant of actions being taken. Such actions may be taken in accordance with the following:
1. Failure to submit progress reports or failure to demonstrate satisfactory progress during the testing period may result in suspension of the permitted use of a MTD at the discretion of the director. If a suspension is issued, such suspension shall be noted on the website. A MTD with a suspended PUD or suspended CUD cannot be installed in Virginia during the suspension period. Suspensions granted because of a lack of progress shall be lifted when the applicant demonstrates satisfactory progress in completing the required component. During a suspension, the clock on the 24-month permitted testing period is not suspended although an extension may be requested in accordance with 4VAC50-60-1480. Following issuance of one suspension, and upon continuing failure to submit progress reports or failure to demonstrate satisfactory progress, the director may revoke the permitted use of the MTD. Such revocation shall also be noted on the website.
2. If it becomes evident through reporting conducted in accordance with 4VAC50-60-1440, inspections, or otherwise that the MTD is not functioning as permitted and that continued use of the permitted MTD may result in degradation of the receiving waters, the department may suspend or revoke the permitted use. Suspension or revocation of the permitted use shall be dependent on whether or not the device may be re-engineered or otherwise modified to eliminate the environmental impacts associated with a continued use of the MTD. Such suspension or revocation shall be noted on the website.
3. If during the review of an applicant's application for higher use in accordance with 4VAC50-60-1380 it becomes evident that a MTD is not operating as permitted for use, the director may revoke the current permitted use designation.
4. Misrepresentation or misuse of information about the product may result in suspension or revocation of the MTD's permitted use.
5. If inspections of an applicant's field testing or a review of the laboratory data result in a finding that data generated through such field or laboratory testing, respectively, are potentially flawed or that the processes are not compliant with the VTAP, the director may suspend or revoke the current permitted use designation depending on the severity of the situation and the ability of the applicant to address the findings.
B. If upon suspension or revocation the applicant continues to market the MTD, the department shall have the authority to pursue compliance utilizing all remedies of the law.
C. In order to have the MTD re-evaluated, the applicant of a revoked MTD shall resubmit an application after the issue(s) have been addressed. Should the revocation have been based on a failure to submit progress reports or failure to demonstrate satisfactory progress, the applicant shall indicate in an application transmittal letter to the department the procedural changes that will be made to ensure future compliance if MTD use were to again be permitted. If this information is not provided then the application shall not be considered complete in accordance with 4VAC50-60-1380.
D. If it is discovered that a MTD that has been assigned a GUD permit and that has been properly maintained is not performing at the assigned pollutant removal credit, the evidence for lack of performance and other relevant information shall be submitted to the committee and the technical evaluator(s) for review and recommendation. The director shall make any final decisions regarding the continued permitted use of the MTD. If the director determines, based on the evidence presented, that the MTD is not performing as permitted, he shall advise the applicant in writing of his decision and the permitted use of the MTD shall be suspended and noted as suspended on the website until the pollutant removal credit is altered to be consistent with the performance information, the design criteria are improved to achieve the listed performance, or the matter is otherwise resolved.
4VAC50-60-1480. Extensions.
The PUD or CUD permitted use shall expire 24 months from the time a QAPP is approved by the director or his designee unless the director or his designee grants an extension of the testing period. In order for the applicant to be granted additional testing time and continue to install the MTD in Virginia, the applicant must receive approval of an extension request from the director or his designee. At least 45 calendar days before expiration of the permitted testing period, the applicant shall submit a written request for an extension to the department. Such request shall include an explanation of why such an extension is needed and shall include a revised date by which the testing shall be concluded. Receipt of the request shall be acknowledged by the department, and the applicant shall be allowed to continue testing until a response to the request is issued by the department. If an extension is not granted, the applicant shall discontinue testing in Virginia at the end of the permitted 24-month testing period and shall reapply if the applicant wishes to have the MTD re-evaluated.
4VAC50-60-1490. Virginia stormwater BMP clearinghouse website.
A. The website shall include a registry of MTDs permitted for use in Virginia in accordance with the specified conditions set out in the permit. The website shall note such permitted use conditions.
B. MTDs undergoing testing to meet criteria of the GUD may be listed on the registry with either a PUD or a CUD designation. A PUD's or CUD's listing on the registry indicates that such MTD has been conditionally permitted for use in Virginia for testing but does not constitute a final approval by the director for use in Virginia. The department has the authority to deny a listing on the registry if there is reason to believe the applicant has misrepresented information about the product. The applicant shall be provided an opportunity to correct the errant information and may be subsequently approved for listing.
C. A MTD with an expired PUD or expired CUD shall be removed from the website and cannot continue to be installed in Virginia.
D. MTDs approved at the GUD level for permitted use in Virginia shall be listed on the website within 15 calendar days of the director's approval. Additional technical details of the MTD shall be posted within 60 calendar days of the director's approval for MTD permitted use.
E. MTD permitted use suspensions or revocations issued in accordance with 4VAC50-60-1470 shall also be noted on the website.
4VAC50-60-1500. Disposition of underperforming MTDs.
If a MTD that has been permitted for use in Virginia at the PUD or CUD level is found to perform poorly and its permitted use has been revoked or conditions for its use have been amended including a reduction in the pollutant removal credits assigned to the MTD, the department shall not require the removal of the MTDs already installed in Virginia for testing purposes or otherwise already installed.
4VAC50-60-1510. Technical standards.
The VTAP shall be utilized in assessing MTDs for permitted use in Virginia to treat post-construction stormwater runoff. The testing protocol is intended for volume-based and flow-rate-based stormwater MTDs and is not suitable for all stormwater treatment practices.
4VAC50-60-1520. Exceptions.
The director shall have authority to approve or deny written requests for exceptions to specified elements of the VTAP. However, in accordance with 4VAC50-60-122 C, under no circumstance shall the VSMP authority grant an exception allowing the use of a BMP not found on the website registry for permitted use. A record of all exceptions granted shall be maintained by the department in accordance with applicable retention policies.
4VAC50-60-1530. Appeals.
A. Any applicant aggrieved by an action taken by the director or department without a hearing, or by inaction of the director or department, may demand in writing an informal fact-finding proceeding by the board pursuant to § 2.2-4019 of the Code of Virginia provided a petition requesting such hearing is filed with the board within 30 days after notice of such action.
B. Any applicant aggrieved by a decision of the director, department, or board, whether such decision is affirmative or negative, is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
4VAC50-60-1540. Use permit application fees for MTDs.
A. A fee of $10,000 per Use Designation Application shall be remitted to the department in order to support the program oversight costs associated with providing technical assistance, training, research, and coordination in stormwater management technology consistent with the purposes of the Stormwater Management Law. Such fee is in accordance with subsection A 5 of § 10.1-603.4 and subsection A of § 10.1-603.6, and the board's responsibility to provide for the evaluation and potential inclusion of emerging or innovative stormwater control technologies that may prove effective in reducing nonpoint source pollution in accordance with subsection A 11 of § 10.1-603.4. If TN results are requested to be reviewed and the MTD approved for TN pollutant removal credits in addition to TP and TSS, the fee to be remitted shall be $15,000.
B. Between the effective date of this regulation and June 30, 2014, the fee set out in subsection A shall be paid by the applicant prior to the issuance of a use permit for the MTD. Beginning July 1, 2014, the fee shall be remitted at the time the application is made to the department for the review of a MTD.
C. All fees collected by the department pursuant to this section shall be deposited into the Virginia Stormwater Management Fund and shall be used and accounted for as specified in § 10.1-603.4:1 of the Code of Virginia.
D. Payments shall be, at the discretion of the department, submitted electronically or be paid by check, draft or postal money order payable to The Treasurer of Virginia, and must be in U.S. currency, except that agencies and institutions of the Commonwealth of Virginia may submit Interagency Transfers for the amount of the fee. The Department of Conservation and Recreation may provide a means to pay fees electronically. When fees are collected electronically pursuant to this section through credit cards, business transaction costs associated with processing such payments may be additionally assessed. Fees not submitted electronically shall be sent to the following address:
Virginia Department of Conservation and Recreation
Division of Finance, Accounts Payable
600 East Main Street
24th Floor
Richmond, Virginia 23219
All applicants shall submit the department's Manufactured Treatment Device Application Fee Form with the fee payment.
E. Between the effective date of this regulation and June 30, 2014, a use permit shall not be issued should payments not be received. Beginning July 1, 2014, requests for a use permit shall not be processed until the fee required pursuant to this section is paid. All incomplete payments will be deemed as nonpayments. The department is entitled to all remedies available under the Code of Virginia in collecting any past due amount.
F. If an application has been found to be incomplete in accordance with 4VAC50-60-1380 F and the application review has been terminated, a refund of 75% of the amount remitted shall be made to the applicant.
G. Once an application has been considered complete and a review of the application and accompanying materials has commenced, no refunds, partial or otherwise, shall be made.
H. The fee amount shall be re-evaluated following the collection of two years of program oversight cost data from the time of program implementation.
SECTION II
Procedures For Approving Non-Proprietary Devices
4VAC50-60-1550. Applicability.
The approach to verifying the pollutant removal credit of non-proprietary BMPs is necessarily different from the procedures set out in Section I and the VTAP. It is understood that for many non-proprietary BMPs:
1. A large history of performance research is already available;
2. That research tends to occur at public expense at academic institutions or within local jurisdictions, in many states, where there is specific interest but typically limited funding to accomplish the research, particularly at the VTAP level; and
3. No entity stands to gain from the certification of non-proprietary practices; accordingly, there is no commercial impulse driving the testing and evaluation of non-proprietary BMPs.
Accordingly, in an effort to provide a streamlined and cost efficient approach to the approval of such devices, the procedures outlined in this Section shall be utilized.
4VAC50-60-1560. Procedures for approving non-proprietary BMPs.
A. The director will consider approval of design specifications and pollutant removal credits for non-proprietary BMPs, as follows:
1. For existing BMPs for which the department has previously granted approval, the department, technical evaluator(s), and committee shall evaluate recommendations to modify BMP design specifications and may solicit advice from one or more of the following: the Center for Watershed Protection, the Chesapeake Stormwater Network, or the United States Environmental Protection Agency's Chesapeake Bay Program. Committee recommendations shall be forwarded to the director for his consideration in approving the use of the device.
2. The department, technical evaluator(s), and committee will consider the approval of new BMP design specifications and pollutant removal credits by evaluating presentations by the advocate, including all applicable research and testing data, and may solicit advice from one or more of the following: the Center for Watershed Protection, the Chesapeake Stormwater Network, or the United States Environmental Protection Agency's Chesapeake Bay Program. Committee recommendations shall be forwarded to the director for his consideration in approving the use of the device.
B. BMP's approved by the director for use shall be posted to the website registry.
C. Beyond the evaluation procedures set out in subsection A, the department will work with the committee to investigate supplemental procedures that may be appropriate for providing additional scientific rigor and consistency to the testing of non-proprietary BMPs. VTAP procedures will be used as a guide in this process.
SECTION III
Procedures For Approving Manufactured Pre-Treatment Devices
4VAC50-60-1570. Applicability.
Certain MTDs are designed to reduce sediment and gross solids but do not provide nutrient filtering. The manufacturers of such MTDs may choose to not test their devices in accordance with Section I and the VTAP procedures due to the additional costs and the fact that if they have already been tested according to the TARP (2003) or TAPE (WSDOE 2002, 2004, 2008, 2011), they may have already received approval by the respective TARP or TAPE-adopted state and have been assigned a pollutant removal credit for TSS. To accommodate this class of MTD's, this Section sets out approval procedures for use in Virginia to permit the use of MTDs as pre-treatment devices, which may be installed in the line of flow before a filtering MTD that has been permitted for use in accordance with Section I or Section II.
4VAC50-60-1580. Procedures for approving manufactured pre-treatment devices.
A. The manufacturer of any MTD that has received approval through the TARP testing process in another state or for basic treatment through TAPE may apply to the director for reciprocal approval as a pre-treatment MTD. The application must include documentation of the prior approval and assigned pollutant removal credit. The department, the technical evaluator(s), and the committee shall evaluate the applicant's information and the recommendations shall be forwarded to the director for his consideration in approving the use of the MTD as a pre-treatment device.
B. As an official state cooperator in the TARP program, the department, representing the Commonwealth, has the authority to provide reciprocal approval of the MTD, based on the testing done elsewhere and the subsequent approval granted by another TARP state.
C. Any MTD approved by the director as a pre-treatment MTD shall be posted to the website registry.
4VAC50-60-1590. Use permit application fee for manufactured pre-treatment devices.
In order to support the program oversight costs associated with providing technical assistance, training, research, and coordination in stormwater management technology consistent with the purposes of the Stormwater Management Law in accordance with subsection A 5 of § 10.1-603.4 and subsection A of § 10.1-603.6, and the board's responsibility to provide for the evaluation and potential inclusion of emerging or innovative stormwater control technologies that may prove effective in reducing nonpoint source pollution in accordance with subsection A 11 of § 10.1-603.4, a fee of $3,000 per Use Designation Application shall be remitted to the department. Fees shall be remitted and managed in accordance with subsections B through E, G, and H of 4VAC50-60-1540.
FORMS (4VAC50-60)
Confidentiality and Non-Disclosure Agreement, DCR199-220 (12/12)
Department of Conservation and Recreation Permit Fee Form, DCR 199-145 (10/09).
Manufactured Treatment Device Application Fee Form, DCR199-221 (12/12)
Stormwater MTD Demonstration Site Summary Form, DCR199-222 (12/12)
Use-Designation Application Form, DCR199-223 (12/12)
DOCUMENTS INCORPORATED BY REFERENCE (4VAC50-60)
EPA Requirements for QA Project Plans (EPA QA/R-5) (U.S. EPA 2001), available on the Internet at http://www.epa.gov/quality/qa_docs.html.
Illicit Discharge Detection and Elimination A Guidance Manual for Program Development and Technical Assessments, EPA Cooperative Agreement X-82907801-0, October 2004, by Center for Watershed Protection and Robert Pitt, University of Alabama, available on the Internet at http://cfpub.epa.gov/npdes/stormwater/idde.cfm.
Getting in Step A Guide for Conducting Watershed Outreach Campaigns, EPA-841-B-03-002, December 2003, U.S. Environmental Protection Agency, Office of Wetlands, Oceans, and Watersheds, available on the Internet at http://www.epa.gov/owow/watershed/outreach/documents/getnstep.pdf, or may be ordered from National Service Center for Environmental Publications, telephone 1-800-490-9198.
Municipal Stormwater Program Evaluation Guidance, EPA-833-R-07-003, January 2007 (field test version), U.S. Environmental Protection Agency, Office of Wastewater Management, available on the Internet at http://cfpub.epa.gov/npdes/docs.cfm?program_id=6&view=allprog&sort=name#ms4_guidance, or may be ordered from National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, telephone 1-800-553-6847 or (703) 605-6000.
Virginia Runoff Reduction Method: Instructions & Documentation, March 28, 2011.
Virginia Technology Assessment Protocol For Evaluating Stormwater Manufactured Treatment Devices, December 11, 2012.