Regulatory Alert

A Convenient Guide to Regulatory Activity in the Commonwealth

July, 2004

The Regulatory Alert is intended to assist General Assembly members with tracking of the myriad regulations being proposed by agencies in the Commonwealth. The goal of this project is to provide a timely, simple and accurate summary of the rules that are being proposed by agencies, boards, and commissions. Highlighting regulations when they are published as “proposed regulations” should alert General Assembly members that the critical public participation phase of the rulemaking process is well underway—it is during the public participation process that the questions of a member or constituent may be most effectively communicated to the agency and examined by the individuals crafting the regulatory proposal.

The Regulatory Alert is not intended to be a substitute for the comprehensive information on agency rulemaking activity that is currently published biweekly in the Virginia Register of Regulations or the notification services offered by the Regulatory Town Hall web site maintained by the Department of Planning and Budget. It is hoped that this addition to the Legislative Record will assist all members as they monitor the development, modification and repeal of administrative rules in the Commonwealth.

Access the Virginia Register of Regulations on-line at http://register.state.va.us/issfiles.htm or contact hbutros@leg.state.va.us or the Code Commission staff at (804) 786-3591 for further information.

Proposed Regulations Open to Public Comment

TITLE 9. HEALTH

State Water Control Board (20:20 VA.R. 2115-2129 6/14/04)

The proposed action develops and adopts a general permit regulation to comply with the provisions of 40 CFR Parts 9, 122, 123, and 412 as published in the Federal Register, Volume 68, No. 29, dated February 12, 2003. The general permit regulation will govern the authorization to manage pollutants from concentrated animal feeding operations, including storage and land application of animal waste. The State Water Control Board has the authority to administer the federal National Pollution Discharge Elimination System program within the Commonwealth, and as such, the program is called the Virginia Pollution Discharge Elimination System (VPDES). Operations that meet the federal definition of Concentrated Animal Feeding Operation (CAFO) found in 40 CFR 122.23 must seek coverage under a NPDES permit. This action will result in the promulgation of a VPDES general permit that will allow those operations to obtain this type of permit. CAFOs are currently regulated in Virginia under the Virginia Pollution Abatement (VPA) permit regulation in 9 VAC 25-32, the VPA General Permit Regulation for CAFOs in 9 VAC 25-192, and the VPA General Permit Regulation for Poultry Waste Management in 9 VAC 25-630. Affected operations currently permitted under these regulations will be required to be permitted under this new VPDES general permit regulation.

Written public comment is being accepted by the DEQ through August 13, 2004.

State Water Control Board (20:20 VA.R. 2130-2140 6/14/04)

9 VAC 25-192. Virginia Pollution Abatement (VPA) General Permit Regulation for Animal Feeding Operations (amending 9 VAC 25-192-10, 9 VAC 25-192-20, 9 VAC 25-192-50, 9 VAC 25-192-60 and 9 VAC 25-192-70; repealing 9 VAC 25-192-30 and 9 VAC 25-192-40).

The proposed action reissues the existing Virginia Pollution Abatement (VPA) General Permit for Confined Animal Feeding Operations. This action will also amend the regulation, where applicable, to reflect changes to 40 CFR Parts 9, 122, 123, and 412, as published in the Federal Register, Volume 68, No. 29, dated February 12, 2003. The current VPA general permit expires November 16, 2004. This VPA general permit regulation for animal feeding operations (9 VAC 25-192) governs the management of pollutants at concentrated animal feeding operations (CAFOs) with 300 or more animal units utilizing a liquid manure collection and storage system. A new general permit regulation, 9 VAC 25-191, is being proposed in accordance with § 62.1-44.17:1 of the Code of Virginia to regulate certain CAFOs under the Virginia Pollution Discharge Elimination System (VDPES) as required by the federal CAFO rule, which became effective April 14, 2003. 9 VAC 25-191 affects a subset of CAFOs currently regulated by 9 VAC 25-192. This action is being taken to amend 9 VAC 25-192 to exclude those CAFOs that will be regulated by 9 VAC 25-191, and to make it consistent with the requirements of the proposed regulation.

Written public comment is being accepted by the DEQ through August 13, 2004.

State Water Control Board (20:20 VA.R. 2140-2148 6/14/04)

9 VAC 25-630. Virginia Pollution Abatement General Permit Regulation for Poultry Waste Management (amending 9 VAC 25-630-10, 9 VAC 25-630-20, 9 VAC 25-630-30 and 9 VAC 25-630-50).

The proposed action amends the existing Virginia Pollution Abatement (VPA) General Permit for Poultry Waste Management, 9 VAC 25-630, where applicable, to reflect changes to 40 CFR Parts 9, 122, 123, and 412, as published in the Federal Register, Volume 68, No. 29, dated February 12, 2003. The current VPA general permit expires November 16, 2004. This general permit regulation governs the authority to manage pollutants from confined poultry feeding operations, including storage and land application of animal wastes. This VPA General Permit for Poultry Waste Management governs the management of poultry waste at confined poultry operations having 200 or more animal units. A new Virginia Pollution Discharge Elimination System (VPDES) general permit regulation for concentrated animal feeding operations (CAFOS), 9 VAC 25-191 is being proposed in accordance with § 62.1-44.17:1 of the Code of Virginia to regulate CAFOs under VPDES as required by the federal CAFO rule, which became effective April 14, 2003. The proposed regulation 9 VAC 25-191 will affect a subset of the poultry operations regulated by 9 VAC 25-630. This action is taken to amend 9 VAC 25-630 to exclude poultry operations that will be regulated under the proposed VPDES general permit regulation 9 VAC 25-191 and to make the requirements of the regulations consistent.

Written public comment is being accepted by the DEQ through August 13, 2004.

TITLE 11. GAMING

Virginia Racing Commission (20:20 VA.R. 2149-2155 6/14/04)

11 VAC 10-45. Advance Deposit Account Wagering (adding 11 VAC 10-45-10 through 11 VAC 10-45-70).

The proposed regulations provide definitions and interpret rules regarding advance deposit account wagering and detail the application and operation process of an entity wishing to conduct an account-wagering business in the Commonwealth. The regulations also detail the fees associated with this business and the penalties for violation of the regulations. These regulations are proposed to satisfy the addition of subdivision 5 to § 59.1-369 of the Code of Virginia. This notice of the commission’s intent to promulgate these rules was originally released as emergency regulation amendments to 11 VAC 10-20, which was published in the Virginia Register of Regulations, in Volume 19, Issue 26, on September 8, 2003.

Written public comment is being accepted by the VRC through August 13, 2004.

TITLE 12. HEALTH

Department of Medical Assistance Services (20:21 VA.R. 2214-2221 6/28/04)

12 VAC 30-120. Waivered Services: MEDALLION (amending 12 VAC 30-120-260, 12 VAC 30-120-280, 12 VAC 30-120-290, 12 VAC 30-120-310, 12 VAC 30-120-320 and 12 VAC 30-120-350).

The proposed amendments (i) add several enrollee groups to the list of individuals excluded from participation or continued enrollment in MEDALLION; (ii) add federally qualified health centers, rural health clinics, and certain local health departments to the list of MEDALLION providers that may serve as primary care providers; (iii) expand the list of medical services exempted from MEDALLION referral requirements; (iv) reduce the maximum number of MEDALLION clients that an individual primary care provider can serve from 2,000 to 1,500 and provide that no more than 10,000 MEDALLION clients may be served by clinics enrolled as Medicaid providers; and (v) expand the list of infractions for which a primary care provider may be sanctioned and add certain civil monetary penalties that may be imposed.

Written public comment is being accepted by the DMAS through August 27, 2004.

Department of Medical Assistance Services (20:21 VA.R. 2221-2229 6/28/04)

12 VAC 30-120. Waivered Services: MEDALLION II (amending 12 VAC 30-120-360, 12 VAC 30-120-370, 12 VAC 30-120-380, 12 VAC 30-120-400 and 12 VAC 30-120-420).

The proposed amendments (i) update the definitions section to conform the language with the federal Balanced Budget Act of 1997 and with other state agencies’ regulations; (ii) clarify existing exclusions and add new exclusions from the Medallion II program; (iii) require DMAS to provide written responses to good cause requests for dis-enrollment by Medallion II clients; (iv) permit managed care organizations to impose cost-sharing obligations on Medallion II clients in accordance with 12 VAC 30-20-150 and 12 VAC 30-20-160; (v) require enrollees to follow up on an oral request for an appeal in writing within 10 business days unless it is an expedited appeal; (vi) eliminate the requirement that managed care organizations provide DMAS copies of all requests for appeals and appeal decisions; and (vii) increase the timeframe for managed care organizations to issue appeal decisions from 14 days to 30 days.

Written public comment is being accepted by the DMAS through August 27, 2004.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

Board Of Health Professions (20:20 VA.R. 2156-2158 6/14/04)

18 VAC 75-40. Regulations Governing the Criteria for Certification of Dialysis Technicians (adding 18 VAC 75-40-10, 18 VAC 75-40-20 and 18 VAC 75-40-30).

The proposed regulation establishes criteria for the use of the titles of “Dialysis Patient Care Technician” or “Dialysis Care Technician” in conformance with Chapter 995 of the 2003 Acts of Assembly. The proposed regulation lists the board-approved certification organizations through which a person may use one of the restricted titles.

Written public comment is being accepted by the DHP through August 13, 2004.

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