1.  The current Emergency Regulation has no provision to require the owner to make repairs to an alternative onsite sewage system.  The SHAD regulations will allow VDH to issue an NOV only if the system is failing.  The purpose of the O&M code (32.1-164 H and I) was to correct problems before they became failures - assure systems are maintained. The rule needs a simple statement that indicates maintenance and repairs identified at a site visit must be corrected and repaired.  It is suggested that a catorization could easily be given to the problems and could be assigned by the VDH rather than the operator, although based on the operators report and if necessary a site visit by the VDH.  This has been successful in Loudoun County it allows small problems to be watched at future site visits and major problems to be fixed now as well as failures.

2.  The Emergency and final O&M rules need the civil penality rule to be promulgated to support compliance.  The problems of having a relationship with an operator, having a site visit and repairing non failure problems don't warrent the criminal penality that a failure can.  On the other hand they can need some compliance/enforcement incentative to fix the problem.

3.  The program being developed appears to be straying far from that directed under the Code 32.1-164 H.  The management system proposed appears to be cumbersom and does not provide all the requirements in the code. (It is noted that it has been presented in draft form and that nothing has been seen since initial presentations upon which comments were provided.) However, it is also unlikely that an updated version for comment will be available before this comment period is over.

Based upon over 25 years of providing operational services for systems with design flows of <1,000 gpd I do not believe annual site visits by a licensed operator be frequent enough. There are a multitude of issues that can arise during a 12 month period that would not be readily visible to an owner but would be ifdentified by an operator that could drastically affect system effluent quality.

I would look at modifying the definition of "Maintenance" to eliminate the replacement of pumps/motors. This jurisdiction has had contractors and newly licensed operators replace pumps for drip irrigation and Low Pressure Distribution systems, which are now being dosed in excess of the design flow, exceeding 10% flow variation, or do not meet the designed gallons/day. Any AOSS  that has a pump replaced without permitting/inspections can potentially have greater consequenses should this definition remain as written.

Here are a couple revisions that I would like to see considered with these Regulations.

1. 12VAC5-613-70-9 -- This section appears to require TL-3 effluent with disinfection for both new systems as well as for the repair/replacement of existing systems.  This will place tremendous hardships on existing homeowners in the Commonweath who will have to incur the additional expense of TL-3 treatment with disinfection when faced with repairing their failing septic system.  It may also force more existing homeowners to seek waivers to repair their failing septic systems that were previously permitted by VDH (under previous regulations) with another septic tank effluent drainfield when conditions are such that TL-3 treatment w/ disinfection would otherwise be required.  I feel that legitimate, existing septic tank effluent sewage systems, when repair is necessary, should be exempted from the requirements of the Emergency Regulations in regards to TL-3 w/ disinfection.  Homeowners should be allowed the option of installing a less expensive TL-2 system w/o disinfection which would still be an improvement over their original septic tank effluent system.
2. 12VAC5-613-70-10 -- I feel the requirement for water mounding calculations for small AOSS under 1,000 gpd where a vertical separation to a permeability-limiting feature is <18" is unnecessary and overburdensome on the sewage system permitting process.  It may also create a conflict with the exemption to the licensing requirements of Title 54.1 of the Code of VA which allows AOSEs (Alternative Onsite Soil Evaluators) to design certain manufactured systems under 1,000 gpd.  Water mounding calcs may be argued to fall within the practice of engineering and thus outside of the AOSE licensing exemption.  This requirement could thus severely handicap the AOSE licensed profession and I feel insufficient data has been provided by VDH to show that water mounding of small AOSS has been a significant problem in VA to warrant such a regulatory requirement.

These regulations allow treated sewage effluent to be discharged directly into the water table.  And they require an O&M visit only once per year as previously noted in a comment posted by Mr. Crooks.  Sewage treatment devices frequently develop problems resulting in the release of poorly treated effluent.  Perhaps someone should demand that a study be conducted of the performance of existing discharging systems that require quarterly O&M.  The results of that study should prove to be very enlightening.  I would expect the study to show that over 50% of discharging systems that are monitored on a quarterly basis are not in compliance with DEQ’s General Permit (i.e. they are not treating the sewage adequately).  What makes anyone think that an onsite system monitored only once per year will function any better?  It’s been proven that pathogens can travel significant distances in a saturated environment.  Where do you think your well water comes from?  Be prepared to drink your own (and your neighbor’s) sewage.

These regulations also allow sewage absorption fields to be placed on or in soils that are restrictive.  The sewage will mound and rise to the ground surface.  A previous posted comment indicated that water mounding calculations should not be required.  I agree but for a different reason.  For small systems these calculations are a joke and can be manipulated to obtain any desired result.  Water mounding calculations contain too many variables and should be considered useless when used in conjunction with the typical site and soil evaluation.  Be sure to have a winch ready to pull your riding lawn mower out of your muddy absorption field.

Your builder’s engineer will state in his plans and specifications that he is not responsible for the soil evaluation (as he should).  Your builder’s soil evaluator will state that he not responsible for the design of the system (as he should).  When the system fails (and many do) the health department will slap you with a Notice of Violation.  You’ll be required to resolve the problem in a timely manner.  Your builder will point the finger at you (system abuse) or the engineer or the evaluator.  The other parties will deflect the blame as well.  Don’t expect the health department to referee.  This is your problem and you’ll need to fix it.

Cost to pump your tank: $150 to $500 per week.

Cost of an evaluator: $750 to $1500.

Cost of an engineer: $1000 to $4000

Cost of a new system (if even possible): $15,000 to $40,000

Cost of an attorney: A lot.

Probability that you’ll collect any money from any of the finger pointers: Nearly zero.

Best solution for you: Possibly foreclosure.

You’ll ask the health department “how could you let this happen”?  The health department is not a consumer protection agency.  Site and soil evaluations, system design, and system inspections are now performed by the private sector.  Most private practitioners do a great job.  However, there are some bad apples out there.  The health department does not have the resources to ‘find’ these bad practitioners and hold them accountable.  The affects of bad practitioners are usually not discovered for years.  It is likely that the affects of bad regulations will also not be discovered for years.

We have entered an era of performance based onsite sewage treatment and dispersal.  What does this mean?  It means that anything goes if the soil evaluator and designer are willing to risk YOUR money.  There are basically no enforceable site and soil requirements any more.  The health department will give a permit for the ugliest of ugly soils.  You can now get your building permit and build that dream home.  But remember, your onsite sewage system must ‘perform’.  If it doesn’t you’re it a heap of you know what.  And, realistically it’ll be entirely YOUR problem as it appears there’s no accountability with onsite practitioners.

These regulations are a compilation of cut and paste gibberish.  I support O&M but I can’t support a regulation that focuses on an ‘end-of-pipe’ standard while virtually ignoring dispersal field standards.  When these systems surface during the wet season do they become a discharging system?  Will DEQ need to ‘invent’ a seasonal General Permit?

The ‘evolution’ of the onsite program has been driven primarily by the private sector.  However, I predict that in less than five years VDH will be blamed for the failure of this program.  The onsite program may eventually be shifted to DEQ or the Department of Housing and Community Development were it will further erode (regardless of what JP thinks).

In conclusion, keep the kids out of the wet spot in the backyard and boil your drinking water.

Existing structures / property with an AOSS installed prior to July 1, 2009, should have a requirement to be "inspected" or certified by a licensed operator.  Then the owner of the property may "certify" or attest in writing that the system is operating in accordance with design / permit annually after that period.

Existing structures/ property with an AOSS installed prior to July 1, 2009, that have a change in ownership should be required to have an inspection / certification by a licensed operator, followed by a requirement to maintain a "relationship" with a licensed operator.  These existing AOSS systems should be sampled on a routine basis, and brought into operating compliance with the current rules and regulations.

The current changes / alterations to the health department's VENIS reporting system do not appear to meet the requirements for an online data reporting system as set forth in the COV 32.1-164.8 H.3

3. A statewide web-based reporting system to track the operation, monitoring, and maintenance requirements of each system, including its components. The system shall have the capability for pre-notification of operation, maintenance, or monitoring to the operator or owner. Licensed operators shall be required to enter their reports onto the system. The Department of Health shall utilize the system to provide for compliance monitoring of operation and maintenance requirements throughout the state. The Commissioner shall consider readily available commercial systems currently utilized within the Commonwealth;

In the demonstration site previewed, it appears that VENIS does not allow or have the capability of pre-notification to the operator and/or owner.

Though amending the Code of Virginia is outside of this comment or regulatory action, an amendment to the new regulations allowing operators to use one or more commercial systems such as Carmody Data Systems, Online RME and integration of select data from that system to VENIS needs / should somehow be included.  As stated in the COV, it appears that an operator MUST use the HD's VENIS system if that is the system being used by the health department.  My company currently has in excess of 1,500 records in the Carmody Data Systems online data base, and duplication of data entry IS NOT cost beneficial.  The Carmody Data System is used by nine manufacturers of AOSS as their national data reporting system, and is used by several counties in the Commonwealth.

 Page 13of 23  under 2VAC5-613-70

 B. The title page of plans for an AOSS shall state that the plans are being submitted pursuant to Virginia Code § 32.1-163.6. Where this statement is not included on the title page,the Department will review the plans pursuant to the Sewage Handling and Disposal Regulations.

1. 12VAC5-613-30. H places additional burdens on professional engineer (PE) designs that were not part of Va. Code § 32.1-163.6. This appears to be an unlawful regulation by VDH to place PE’s back within Regulations for the greatest extent of their work, which violates the intent of HB1166.
2. Standard engineering practice is not defined in 12VAC5-613-10. Definitions. Further use of the term in this document is meaningless and only serves to appear to address this term. Actual standard engineering practice could not be contained in a document such as this that is more of a cookbook for non-engineers such as Authorized Onsite Soil Evaluators (AOSE). Standard engineering practice doesn’t change on the date of publication of a document by VDH. Onsite wastewater system design as engineers practice may include regulations of other states that may be applicable to a certain site. Standard engineering practice is based on sound science. Virginia regulations haven’t always been consistent with current science, or when questioned, they fail to provide the science behind the Regulation. VDH personnel have been questioned in public meetings concerning this and their answers have been more political and marketing than scientific at times.
3. PE’s are still judged by a moving target that is now stricter than that faced by AOSE’s because we have to meet the new Regulations PLUS standard engineering practice.
4. This Emergency Regulation seems to make it even difficult for AOSE’s to perform their work without violating the limitations of them being less than engineers. AOSE’s seem to be pushed into “designing” systems which they are not authorized to do.
   1. How can an AOSE meet 12VAC5-613-70.A.7.b without engaging in engineering design?
5. What is the scientific basis of the numbers in Part II, A.7.Table 1?
   1. How can a PE be held to a “cookbook” without showing the science behind the numbers?
   2. What would be the resolution if the engineer proposed loading rates by “standard engineering practice” that exceeded Table 1?
   3. What if the PE had manufacturer’s data (from a manufacturer’s engineering design guide) that showed standard engineering practice for drip dispersal that was higher than Table 1?
   4. North Carolina allows a loading rate prescribed by a table such as the Emergency Regulations, but allows a Ksat of the site with a prescribed safety factor if the engineer chooses to design according to the site specific Ksat.
6. 12VAC5-613-70. Performance requirements-general. § A.9 mentions “naturally occurring soil” demand. This is another attempt at supporting a previously varying “interpretation” of VDH.
   1. The text of 12 VAC 5-610-597 does not say naturally occurring (or in situ) in the comparable sections in reference to “elevated mound systems” for instance. The footnote concerning “sand on sand” notes that the standoff for THAT system is measured from “ground surface.” The footnote would not have applied only to “sand on sand” if it was applicable to all systems. It has only been VDH’s arbitrary interpretation on this issue. VDH engineers have stated that they have approved applications in the past that were in violation of their own interpretation. How many instances do I have to find in permits that were approved in last few years to defeat the claim that it has “always” been naturally occurring/in situ soil?
   2. There is no proof provided that there is scientific consensus or that it is standard engineering practice that non-naturally occurring fill material would be incapable of providing treatment. Earthen dams are constructed from fill and that requires the soil to have known permeability and structural properties. The Wisconsin sand mound uses fill sand and is widely recognized as an alternative to conventional septic systems. The EPA Onsite Wastewater Treatment Systems Manual, shows systems that use fill material similar to some variation of the Wisconsin sand mound using fill material. Caps for landfill systems are another form of soil used as fill that isn’t naturally occurring and in which permeability is an issue. Another way of looking at it, if fill material had been in place for 5, 10, 25, 50, or 100 years would that be suitable?
   3. Several PE’s (to my knowledge) don’t believe in this requirement for naturally occurring soil in all of their designs. How many PE’s would have to disagree before it can’t be considered standard engineering practice?
   4. VDH needs to provide the widely accepted (nationally, not just within VDH) scientific basis of the claim before PE’s are required to abide by it. I would like to see the proof that “stable” soil, characterized appropriately, with its Ksat measured, would not provide sufficient treatment.
7. 12VAC5-613-70. Performance requirements-general § A.11 is the only real new performance requirement that a PE should be subject to in this chapter. The remainder of the chapter is a prescriptive cookbook for AOSE’s who are not allowed to actually engage in engineering design.
   1. This isn’t a performance regulation. It still works as VDH serving as a gatekeeper of market technology. GMP147 is still in effect with the implementation of these “Emergency” regulations. Further, the VDH practice only allows AOSE’s to install the favored systems, thus continuing to enrich those manufacturers, limiting competition and free market processes, and inhibiting technology growth. It is documented that some of those systems don’t meet the standards set for new systems to make the favored list.
   2. Paragraph A.10 is an instruction to PE’s in the performance of their field of work and is inappropriate for VDH. Compare § A.10 to GMP 147, FAQ answer 4 that acknowledges the limits of VDH authority.

8. 12VAC5-613-70. Performance requirements-general § C. is again an instruction to PE’s in the performance of their field of work and is inappropriate for VDH. Report format is something VDH can require, but which book that is used is an expansion of their authority.
9. 12VAC5-613-80. Performance requirements-laboratory sampling and monitoring.
   1. This reference to 40 CFR Part 136 or alternative methods approved by the U.S. Environmental Protection Agency is too vague to be of any use.
   2. Specify the individual who will do the collection. If it is someone who is related to the equipment provider or is the operator who has a potential conflict of interest in saying the system meets the requirements, then this section is of little value to protecting the public, the environment, or the groundwater.
   3. Paragraph D says “Sample results shall be received by the local health department by the 15th of the month following the month in which the sample was taken” does this meet 40 CFR Part 136? Specify where this is called out. It seems that there could be 15-45 days for this sample to sit in an unspecified location which may likely alter the results.
10. 12VAC5-613-90. Performance requirements-field measurements, sampling, and observations.
    1. Table 4: Why were BOD5, TSS, and Fecal Coliform not included? These were amongst the requirements to be an approved unit? It seems these would be a means of realistically monitoring the true applicability of all units installed, and provide evidence that the favored systems are performing suitably. If these measurements are the real performance measurements of the equipment, why are they not tested? If these aren’t tested, is VDH REALLY protecting the public and the environment?