The Virginia Association of Onsite Soil Evaluators (VAAOSE) objects to the proposed Fast-Track Stage -
Repeal of Authorized Onsite Soil Evaluator Regulations (12 VAC 5-615).

Part of the overall objection stems from the rationale for selecting the fast track process. 12 VAC 5-615 was the first regulation of its kind to ever exist, and historically implementation was marked by controversy the moment the 1994 General Assembly required the Board of Health to establish a program for qualifying authorized onsite soil evaluators.

Was it just an oversimplification for the agency to declare 12 VAC 5-615 unnecessary and currently unenforced?

The General Assembly enacted legislation in 2007 creating the Onsite Soil Evaluator licenses. The body of legislation determined the need for the profession to be regulated, the degree of regulation, and the organizational structure to manage the regulatory program. Effective July 1, 2009, administration of the program transferred to the Department of Professional and Occupational Regulation (DPOR), and the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals (WWWOOSSP).

Certainly, the Virginia Department of Health (VDH) does not determine whether a specific activity is the practice of engineering, and DPOR licenses designers under Va. Code Section 54.1 (54.1-400 thru 54.1-415). Therefore, what constitutes adequate justification for repeal of 12 VAC 5-615 given the alternative was to leave the regulations in place with little or no effect on the Board's administration of the program?

Given the many assurances based upon DPOR’s licensing programs and policies for replacing significant portions of 12 VAC 5-615, what level of effort was made to assess the potential impact of the proposed action on DPOR regulants? For example, were all the definitions under current section 12 VAC 5-615-120 adequately referenced elsewhere and consistent with health, safety, environmental, and economic welfare?

VAAOSE requests greater detail and specificity as to the corresponding Code or policy intended to replace all sections of 12 VAC 5-615.

VAAOSE would support the agency obtaining a resolution on the matter from the respective DPOR Boards, with WWWOOSSP, in particular. If a goal of repealing the regulation is to prevent confusion, then establish a memorandum of understanding between DPOR and VDH on roles and responsibilities prior to rescinding 12 VAC 5-615.

A number of other associated issues with the proposed regulatory action include housekeeping clarifications on certain requirements like the "standards of practice and conduct" (12 VAC 5-615-20), implementation of processing time limits (12 VAC 5-615-80), and continued assurance that an AOSE certification is required (12 VAC 5-615-100).

Another potentially pertinent matter of interest is the final disposition of a misleading VDH interpretation that tends to promote two license standards as presented in Guidance Memoranda and Policies (GMPs), which are purported to represent implementation of other regulations (e.g., 12 VAC 5-610, 12 VAC5-613, 12 VAC5-640, and 12 VAC5-630).

One particularly controversial GMP was the original policy interpretation of 12 VAC 5-615. This policy is now titled GMP #126.B, Standards for Applications with Supporting Documentation from the Private Sector. Since the agency concludes that repeal of 12 VAC 5-615 will not result in substantial changes to the Board of Health's program, is the public to conclude this action will not fundamentally improve the license discrimination that was established after DPOR adopted regulations for onsite soil evaluators (18 VAC 160-20)? Under the current licensing program administered by DPOR, the code of ethics is for all practicing onsite soil evaluators (OSE).

VAAOSE considers it equally worthy of further consideration that key subsections of 12 VAC 5-615 were necessary to comply with several statutory provisions of the Code of Virginia. Implementation for the Acts of the Assembly was to incorporate into regulation provisions from 1994 legislation as well as 1999. The objective was to alleviate historical backlogs in sewage system approval through changes in statutory requirements. In this manner, both Acts of the General Assembly were inextricably linked. Whether or not VDH can effectively administer its responsibilities through other applicable provisions of the Code of Virginia remains to be determined. It is generally expected that a proposed Town Hall regulatory change alert the public of all substantive matters or consequences.

The General Assembly approved [S 415] April 11, 1994, an act to "amend the Code of Virginia by adding sections numbered 32.1-163.4 and 32.1-164.1:01, relating to certain application fees and onsite sewage systems." Of particular interest to authorized onsite soil evaluators, at that time, were the procedures for application backlogs under § 32.1-163.4.

Under § 32.1-163.4. A., "In any case where the local or district health department experiences a septic system or other onsite sewage system permit backlog of fifteen working days from the application filing date, the Commissioner shall contract with authorized onsite soil evaluators for the field evaluation of the backlogged application sites[...]."

Measuring the backlog from the application filling date was meant to provide an important trigger mechanism at local or district health departments for increasing AOSE/PE participation throughout the State.

In addition, § 32.1-163.4. C., "The Board's regulations shall include a definition of backlog providing a set number or a percent of the received applications." Therefore, under subsection C., the Board of Health was legislatively mandated to include the definition of a backlog in its regulations. The definition would determine both the extent of a backlog and whether or not contracting authorized onsite soil evaluators was required.

On June 27, 1994, VDH issued GMP #54 that established an interim definition of a backlog until regulations were adopted. Changes in the Code of Virginia in 1999, allowed private soil evaluators to have a legal right in approving or denying sites for septic systems. The definition of the term "backlog" was finally adopted under regulation, 12 VAC 5-615-120. Definitions:

"Backlog" is deemed to exist when the processing time for more than 10% of a local or district health department’s complete bare applications for construction permits exceeds a predetermined number of working days (i.e., a 15-day backlog exists when the processing time for more than 10% of permit applications exceeds 15 working days). When calculating backlogs, only applications for construction permits shall be counted.

On July 16, 2004, GMP #126, Implementation Manual for Authorized Onsite Soil Evaluator Regulations, was published. This GMP was intended to "provide guidance to VDH staff, AOSE/PEs, and others for

administering, interpreting, and enforcing the AOSE Regulations." Of particular note with respect to the proposed repeal of 12 VAC 5-615, was a highlighted paragraph which indicated the following:

 Effective immediately, VDH Guidance Memoranda and Policies (GMP) #54 (Defining Backlogs), #99, #100, and #103 are hereby rescinded; all agreements executed between VDH and individual AOSEs upon the expiration  of the Emergency AOSE Regulations are null and void upon the effective date of the AOSE Regulations. 

In closing, the agency has an opportunity to withdraw this proposed action until these inconsistencies can be satisfactorily repealed without controversy.

Earnestly,

James B. Slusser, AOSE

President, VAAOSE