32.1-164.1:01 - Onsite Sewage Indemnification fund
§ 32.1-164.1:01. Onsite Sewage Indemnification fund.
A. There is hereby created the Onsite Sewage Indemnification fund whosepurpose is to receive moneys generated by a portion of the fees collected bythe Department of Health pursuant to subsections C and E of § 32.1-164 andappropriated by the Commonwealth for the purpose of assisting any Virginiareal property owner holding a valid permit to operate an onsite sewage systemwhen such system or components thereof fail within three years ofconstruction and such failure results from the negligence of the Departmentof Health. The fund may also be used, in the discretion of the Board, tosupport the program for training and recognition of authorized onsite soilevaluators.
B. Ten dollars of each fee collected by the Department of Health pursuant tosubsections C and E of § 32.1-164 shall be deposited by the Comptroller tothis fund to be appropriated for the purposes of this section to theDepartment of Health by the General Assembly as it deems necessary.
C. The owner of an onsite sewage system that has been permitted by theDepartment of Health may cause, by filing a request for payment from the fundwithin one year from the date the system or components thereof failed, theCommissioner to review the circumstances of the onsite sewage system failure,if the onsite sewage system has failed within three years of construction.Upon the Commissioner's finding that the onsite sewage system was permittedby the Department and (i) the system or components thereof failed withinthree years of construction; (ii) that specific actions of the Departmentwere negligent and that those actions caused the failure; and (iii) that theowner filed a request for payment from the fund within one year from the datethe system or components thereof failed, the Commissioner shall, subject tothe limitations stated herein, reimburse the owner for the reasonable cost offollowing the Board's regulations to repair or replace the failed onsitesewage system or components thereof.
D. Prior to receiving payment from the fund, the owner shall follow therequirements in the Board's regulations to repair or replace the failedonsite sewage system or components thereof.
E. The total amount an owner may receive in payment from the fund shall notexceed $30,000. Only the costs of the system that failed or the costs oflabor and equipment required to repair or replace the failed onsite sewagesystem or components thereof are reimbursable by the fund.
F. If the Commissioner finds that the system was permitted by the Departmentand has failed within three years of construction and that the failureresulted from faulty construction or other private party error, theCommissioner may assist the owner of the failed system in seeking redressfrom the system's builder or other private party.
G. Every request for payment from the fund shall be forever barred unless theowner has filed a complete application as required by the Department. Therequest shall be filed with the Commissioner within one year from the datethat the onsite sewage system or components thereof first failed. However, ifthe owner was under a disability at the time the cause of action accrued, thetolling provisions of § 8.01-229 shall apply. The owner shall mail therequest for payment from the fund via the United States Postal Service bycertified mail, return receipt requested, addressed to the Commissioner.
In any action contesting the filing of the request for payment from the fund,the burden of proof shall be on the owner to establish mailing and receipt ofthe notice in conformity with this section. The signed receipt indicatingdelivery to the Commissioner, when admitted into evidence, shall be primafacie evidence of filing of the request for payment from the fund under thissection. The request for payment from the fund shall be deemed to be timelyfiled if it is sent by certified mail, return receipt requested, and if theofficial receipt shows that the mailing was within the prescribed time limits.
Notwithstanding any provision of this article, the liability for any paymentfrom the fund shall be conditioned upon the execution by the owner of arelease approved by the Attorney General of all claims against theCommonwealth, its political subdivisions, agencies, and instrumentalities andagainst any officer or employee of the Commonwealth in connection with orarising out of the occurrence complained of.
H. The Commissioner and the Attorney General shall cooperatively develop anactuarially sound program and policy for identifying, evaluating, andprocessing requests for payment from the fund.
I. If the Commissioner refuses the request for payment from the fund, theowner may appeal the refusal to the State Health Department Sewage Handlingand Disposal Appeal Review Board.
The Board may promulgate regulations pursuant to the Administrative ProcessAct (§ 2.2-4000 et seq.) for the administration of the fund consistent withthis chapter.
In the event the fund is insufficient to meet requests for payment from thefund, this section and the creation of the fund shall not be construed toprovide liability on the part of the Department or any of its personnel whereno such liability existed prior to July 1, 1994.
(1994, c. 747; 2007, cc. 448, 515.)