COVID-19: Temporary Waivers of Environmental Health Regulations

Updated March 31, 2020

On March 12, 2020, Governor Ralph S. Northam issued Executive Order Fifty One (51), Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) authorizing heads of executive agencies, with appropriate concurrence, to waive any state requirement or regulation. The following documents contain guidance regarding waivers of regulations or standards specific to programs under the Office of Environmental Health Services. View the signed waivers here, here, here, and here.

Bedding and Upholstered Furniture

Regulations for Bedding and Upholstered Furniture Inspection Program (12 VAC5-125)

(In part: Waived language italicized )

12VAC5-125-50. Licenses, permits, and registration numbers.

“A. Licenses for manufacturers, importers, distributors, wholesalers, renovators, reupholsterers, supply dealers.

Such license shall be numbered; shall, unless sooner revoked, expire one year from the date of issue; shall be renewable annually through receipt of a fee; and shall not be transferable. The commissioner shall assign a uniform registry number to each licensee.
Permits for sterilizers and sanitizers. Every person who, on his own account or for others, is a sterilizer or a sanitizer shall obtain from the commissioner a permit for each location at which sterilizing or sanitizing operations occur. Any person applying for approval of a process by which filling materials, bedding, or upholstered furniture are sanitized or sterilized shall submit to the commissioner a description of the process, test results and any apparatus and method to be used in such process. Upon approval of such process by the commissioner and payment of the current annual permit fee by the applicant, a numbered permit for use of such process shall be issued. Such permit shall expire one year from the date of issue. Nothing herein shall prevent any person from having any sanitizing or sterilization required by this chapter performed by any person who has a valid permit for such purposes, provided the number of such permit appears on the tag attached to each article as required by § 32.1-219 of the Code of Virginia.
Issuance of license or permit. The Bedding Program shall issue the appropriate license or permit to the applicant after:
The appropriate fee, if required, is submitted;

Applicability: Any licenses or permits valid on 3/30/2020 that would otherwise expire prior to the end of the Declaration of Emergency, will not expire until the end of the declared emergency. Regardless of when the renewal is processed, renewed licenses will retain their original expiration period (i.e. those expiring in May 2020 will expire in May 2021 once renewed). If resources become limited, any license or permit renewal application may be processed without processing of the license fee. The Bedding Program is currently accepting and processing fees at this time.

12VAC5-125-80. Bedding and upholstered furniture inspections.

“A. Inspections of license and permit holders.

Inspection of the premises of a holder of a license or permit issued under this chapter will be initiated upon the following complaints when they relate to a violation of this chapter:

Upon complaints received by the commissioner.
Upon complaints received by the Bedding Program.
Upon complaints received by the Department of Agriculture and Consumer Services and reported to the commissioner or Bedding Program.
Upon complaints made to an inspector in the course of a routine inspection and reported to the Bedding Program.
Upon complaints against a licensee made by an inspector when noted in the course of a routine inspection of an ancillary operation (such as a sanitizer, distributor/wholesaler or retailer) and reported to the Bedding Program.
Upon complaints (or findings of violations) against a licensee by the authorities of a government jurisdiction outside the Commonwealth that the licensee has sold bedding in violation of laws, regulations or standards of that jurisdiction dealing with tagging, sanitization, or consumer protection requirements.
Upon late or nonrenewal of permit or license by a licensee or permit holder or upon late notification of a change of location. Renewal application and payment not received by the due date contained in the renewal notice and a failure to timely notify the commissioner of a change of address shall result in the licensee being moved to an unlicensed status and may result in an inspection by the Bedding Program to determine if the licensee continues in business. If the licensee continues to operate, a license or permit shall not be issued until a program inspection occurs and the requirements of the law are satisfied.

Inspections shall be conducted upon receipt of application for a permit or license by an unlicensed entity.”

Applicability: The Bedding Program has suspended inspections until further notice.

Campgrounds

Food Establishments

Food Regulations (12 VAC5-421)

(In part: Waived language italicized)

12VAC5-421-55. Certified food protection manager.

“A. At least one employee with supervisory and management responsibility and the authority to direct and control food preparation and service shall be a certified food protection manager, demonstrating proficiency of required knowledge and information through passing a test that is part of an accredited program.”

Applicability: Certified Food Protection Managers whose credentials expire in March, April, May, or June 2020 will be considered to satisfy the requirement for a CFPM until the end of the Declaration of Emergency. This waiver does not eliminate the requirement for a CFPM.

12VAC5-421-3660. Permits.

"E. Permits shall expire annually."

Applicability: Permits that are valid as of 3/30/2020 (and that would expire prior to the end of the Declaration of Emergency), will not expire until the declaration ends. Regardless of a renewal date, renewed licenses will retain their original expiration period (i.e. those expiring in May 2020 will expire in May 2021 once renewed).

12VAC5-421-3710. New, Converted, or Remodeled Establishments.

For food establishments that are required to submit plans as specified under 12VAC5-421-3600 the regulatory authority shall issue a permit to the applicant after:

...4. A preoperational inspection shows that the establishment is built or remodeled in accordance with the approved plans and specifications and that the establishment is in compliance with this chapter.

Applicability: New Food Establishments may be permitted without an onsite preoperational inspection, provided that:

1. They have previously applied for a plan review and received plan approval;

2. They have a certificate of occupancy from the Building Official as required by 12VAC5-421-3660A; and

3. They are capable of providing live video and audio access for the EHS to conduct a virtual preopening inspection of the facility thereby demonstrating compliance with the Food Regulations.

All facilities opened via this procedure are subject to menu restrictions to limit foodborne illness risk, and these permits will expire at the end of the Declaration of Emergency. At that time, an onsite preoperational inspection will be necessary to renew these permits, but no additional fee will be charged. The renewed permit will expire one year from the date of issuance of the original permit.

12VAC5-421-3720. Existing Establishments, Permit Renewal, and Change of Ownership.

“The regulatory authority may renew a permit for an existing food establishment or may issue a permit to a new owner of an existing food establishment after a properly completed application is submitted, reviewed, and approved, any fees are paid, and an inspection shows that the establishment is in compliance with this chapter.”

Applicability: Local health departments may issue a permit upon receipt of application regardless of whether a fee has been submitted. This does not waive the fee established in the Governor’s Budget Bill, only the requirement to receive the fee prior to issuing the permit. The fee may be collected at a later date.

12VAC5-421-3800. Periodic Inspection.

“Food establishments shall be inspected by the designee of the director. Inspections of the food establishments shall be performed as often as necessary for the enforcement of this part in accordance with the following:

Except as specified in subdivisions 2 and 3 of this section, the regulatory authority shall inspect a food establishment at least once every six months.”

Applicability: Local health departments are not required to meet onsite inspection frequencies for food establishments due for inspection during the Declaration of Emergency. Phone or technology-assisted inspections may substitute for routine onsite inspections. After expiration of the waiver, onsite regulatory inspection frequencies will be re-established. This waiver does not apply to complaints.

12VAC5-421-3810. Performance-Based and Risk-Based Inspections.

“Within the parameters specified in 12VAC5-421-3800, the regulatory authority shall prioritize , and conduct more frequent inspections based upon its assessment of a food establishment's history of compliance with this chapter and the establishment's potential as a vector of foodborne illness by evaluating:

Past performance for nonconformance with this chapter or HACCP plan requirements that are priority items or priority foundation items;
Past performance for numerous or repeat violations of this chapter or HACCP plan requirements that are core items;
Past performance for complaints investigated and found to be valid;
The hazards associated with the particular foods that are prepared, stored, or served;
The type of operation including the methods and extent of food storage, preparation, and service;
The number of people served; and
Whether the population served is a highly susceptible population.”

Applicability: Local health departments are not required to meet onsite inspection frequencies for food establishments due for inspection during before the end of the Declaration of Emergency. Phone or technology-assisted inspections may substitute for routine onsite inspections. After expiration of the waiver, onsite regulatory inspection frequencies will be re-established.

12VAC5-421-3815. Competency of Environmental Health Specialists.

"A. An authorized representative of the commissioner who inspects a food establishment or conducts plan review for compliance with this chapter shall have the knowledge, skills, and ability to adequately perform the required duties. For the purposes of this section, competency shall be demonstrated when an environmental health specialist meets the training and standardization requirements specified in the Virginia Department of Health Procedures for Certification and Standardization of Food Protection Staff, 2017 edition (VDH, Division of Food and Environmental Services)."

Applicability: This waiver does not eliminate the requirement for Standardization of Environmental Health Specialists; non-standardized staff may not conduct inspections. Standardizations valid as of 3/30/2020 (and that would expire prior to end of the Declaration of Emergency), will not expire until the end of the Declaration of Emergency.

12VAC5-421-3970. Enforcement of Regulation.

"H. Proceedings before the commissioner or his designee shall include any of the following forms depending on the nature of the controversy and the interests of the parties involved.

Informal fact-finding conferences. An informal fact-finding conference is a meeting with a district or local health department (with the district or local health director presiding and) held in conformance with 2.2-4019 of the Code of Virginia.

Applicability: This waiver provides local health departments and district directors discretion in selecting a presiding officer for informal fact-finding conferences.

Lodging Establishments

Migrant Labor Camps

Onsite Sewage

Regulations for Sewage Handling and Disposal Program (12 VAC5-610)

(In part: Waived language italicized )

12VAC5-610-75. Permits Valid on the Effective Date of This Chapter.

Sewage disposal system construction permits which are valid on July 1, 2000, shall be automatically renewed on a one-time basis. Each permit thus renewed shall have an expiration date 18 months from the expiration date shown on the face of the permit.

Applicability: Any construction permits valid on 3/30/2020 that would otherwise expire prior to the end of the Declaration of Emergency, will not expire until the end of the Declaration of Emergency. Regardless of when the renewal is processed, renewed construction permits will retain their original expiration period (i.e. renewals will be 18 months from the date of original permit expiration).

12VAC5-610-170. Enforcement of Regulations.

Hearing before the issuance of an order. Before the issuance of an order described in subsection B of this section, a hearing must be held with at least 30 days notice to the affected owner of the time, place and purpose thereof, for the purpose of adjudicating the alleged violation or violations of this chapter. The procedure at the hearing shall be in accordance with 12VAC5-610-200B and with §§ 9-6.14:11 and 9-6.14:12 of the Code of Virginia.
Order; when effective. All orders shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the owner violating this chapter. Violation of an order is a misdemeanor. (See § 32.1-27of the Code of Virginia.)

Applicability: The Onsite Program will try to schedule hearings where appropriate after June 10, 2020. Where a hearing must be conducted sooner due to potential public health impacts, hearings may be conducted via telephone or virtually during the period of 3/30/30 to 6/10/20. Owners will have at least 30 days notice of scheduled hearings.

12VAC5-610-190. Variances.

Evaluation of a variance application.
The commissioner shall act on any variance request submitted pursuant to subsection C of this section within 60 calendar days of receipt of the request.

Applicability: The Health Commissioner has delegated the authority to grant variances to the Director of the Office of Environmental Health Services. The Director shall have 30 calendar days from June 10, 2020 to act upon any variance request received during the period of 3/30/20 to 6/10/20. We will continue to work to process variances to the greatest extent possible during this period.

12VAC5-610-200. Hearing Types.

“A. Informal hearings. An informal hearing is a meeting with the district or local department (with district or local health director presiding and) held in conformance with [2.2-4019] of the Code of Virginia. …A written copy of the decision and the basis for the decision shall be sent to the appellant within 15 work days of the hearing unless the parties mutually agree to a later date in order to allow the department to evaluate additional evidence.”

Applicability: This waiver provides local health departments and district directors discretion in selecting a presiding officer for informal fact-finding conferences. Further, VDH will follow the provisions of the Administrative Process Act, Virginia Code § 2.2-4021, which states that case decisions will be provided to parties within 90 days of the date of the hearing or from a later date agreed to by the named party and the agency.

12VAC5-610-230. Appeal.

“A. Any appeal from a denial of a construction permit for a sewage disposal system must be made in writing and received by the department within 30 days of the date of receipt of notice of the denial.

Any request for hearing on the denial of an application for a variance pursuant to 12VAC5-610-170E 1 must be made in writing and received within 30 days of receipt of the denial notice.
Any request for a variance must be made in writing and received by the department prior to the denial of the sewage disposal system permit, or within 30 days after such denial.
In the event a person applies for a variance within the 30-day period provided by subsection C of this section, the date for appealing the denial of the permit, pursuant to subsection B of this section, shall commence from the date on which the department acts on the request for a variance.”

Applicability: If an owner receives a denial within the period of 3/30/20 to 6/10/20, they will have 30 days after 6/10/20 to appeal the denial, request a hearing on the denial or to apply for a variance from a denial. However, owners are still welcome to submit appeals prior to 6/10/20.

12VAC5-610-260. Requirements for the Submission of Formal Plans, Specifications and Other Data.

“B. If revisions to the formal plans, specifications or documents are necessitated, a letter will be sent to the engineer outlining the revisions and requesting submission of the revised documents within 30 calendar days.”

Applicability: If an engineer receives a letter requesting further specifications or documents within the period of 3/30/20 to 6/10/20, they will have 30 days after 6/10/20 to provide the requested material. However, engineers are still welcome to submit further specifications and documentation prior to 6/10/20.

12VAC5-610-300. Voidance, Revalidation, and Revocation of Construction Permits with and without Conditions.

“A. Null and void. All sewage disposal construction permits are null and void when… (iii) more than 18 months elapse from the date the permit was issued.”

Applicability: Construction permits valid on 3/30/2020 that would otherwise expire prior to 6/10/2020 and become null and void, will not expire until 06/10/2020. Regardless of when the renewal is processed, renewed construction permits will retain their original expiration period (i.e. renewals will be 18 months from the date of original permit expiration).

12VAC5-610-630. Procedures for Entry into or Withdrawal from a Soil Drainage Management Contract (Sdmc).

“A. Entry.

The department shall, within 60 days of the submission of an application for entry into an SDMC, evaluate the application and propose to the political subdivision any suggestions for modification to the SDMC…
The department shall accept or reject entry into an SDMC within 90 days of receipt of the final application from a political subdivision.
Withdrawal.
The department shall, within 60 calendar days of its proposed withdrawal from an SDMC notify the political subdivision of the department's intent...
Within 30 calendar days after such hearing, the department shall notify the political subdivision whether the department will withdraw from the SDMC.”

Applicability: If any applications for soil drainage management contracts are received during the period of 3/30/2020 to 6/10/2020, the Department shall act upon the submission within 60 days after 6/10/2020. If any final applications are received during 3/30/2020 to 6/10/2020, the Department will accept or reject entry within 90 days from 6/10/2020. The Department will provide at least 60 calendar days notice after 6/10/2020 to seek withdrawal from a SDMC.

Private Wells

Regulations for Private Well Program (12 VAC5-630)

(In part: Waived language italicized )

12VAC5-630-150. Enforcement of Regulations.

“C. Hearing before the issuance of an order. Before the issuance of an order described in 12VAC5-630-150, a hearing must be held, with at least 30 days notice by certified mail to the affected owner or other person of the time, place and purpose thereof, for the purpose of adjudicating the alleged violation or violations of this chapter.

Order; when effective. All orders issued pursuant to 12VAC5-630-150shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the owner or person violating this chapter. Violation of an order is a Class 1 misdemeanor. See § 32.1-27of the Code of Virginia.”

Applicability: The Private Well Program will try to schedule hearings where appropriate after June 10, 2020. Where a hearing must be conducted sooner due to potential public health impacts, hearings may be conducted via telephone or virtually during the period of 3/30/2020 to 6/10/2020. Owners will have at least 30 days notice of scheduled hearings.

12VAC5-630-170. Variances.

“C. Evaluation of a variance application.

The commissioner shall act on any variance request submitted pursuant to 12VAC5-630-170B within 60 calendar days of receipt of the request.
Disposition of a variance request.
No owner may challenge the terms or conditions set forth in the variance after 30 calendar days have elapsed from the effective date of the variance.”

Applicability: The Commissioner shall have 30 calendar days from June 10, 2020 to act upon any variance request received during the period of 3/30/2020 to 6/10/2020. We will continue to work to process variances to the greatest extent possible during this period.

12VAC5-630-270. Issuance of Express Class IV Construction Permits and Final Inspection.

“A. Issuance of express Class IV construction permit. Upon receipt of a complete and approvable application, as defined in 12VAC5-630-260, by a local or district health department with multiple sanitarians, the department shall exercise all due diligence to issue a permit either on the date of receipt or the following business day.

Validity of express Class IV construction permits. Express Class IV construction permits shall only be valid for a period of 30 days from the date of issuance.”

Applicability: Applications received pursuant to this section within the time period of 3/30/2020 to 6/10/2020 will be acted upon as soon as practicable by VDH staff. Permits issued pursuant to this section during the above mentioned time period will remain valid until 30 calendar days past 6/10/2020 or Friday, July 10, 2020.

12VAC5-630-300. Voidance of Construction Permits.

“Null and void. All well construction permits are null and void when (iii) more than 54 months elapse from the date the permit was issued.”

Applicability: Construction permits valid on 3/30/2020 that would otherwise expire prior to the end of the Declaration of Emergency and become null and void, will not expire until the end of the Declaration of Emergency.

12VAC5-630-440. Information to Be Reported.

“A copy of a Uniform Water Well Completion Report (see 12VAC5-630-490) shall be provided to the district or local health department within 30 days of the completion of the well or completion of alterations thereto.”

Applicability: If a well is installed and completed within the time frame of 3/30/2020 to 6/10/2020, the completion report may be received up to July 10, 2020 and be compliant with this section.

Fee Regulations