6 comments
Repeal the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals (Board) existing regulation, 18VAC160-20, as it no longer protects public health, safety, and welfare.
Promulgate a new regulation and abandon the Board's authority to promulgate regulations for the licensure of onsite sewage system professionals, specifically, onsite soil evaluators and onsite sewage system installers.
Respectfully withdraw from further consideration the currently proposed creation of two new chapters, until the Board eliminates any statutory and regulatory inconsistencies with § 54.1-2301 of the Code of Virginia:
Proposed text was submitted on 11/13/2015 to the Virginia Register of Regulations and published on 12/14/2015, Volume: 32 Issue: 8 .
In short, these proposed revisions will not improve clarity of the regulations, will not ensure consistency with current board practices and legal requirements, and blatantly disregarded standards of practice in the industry.
Finally, given the regulations have not undergone a thorough and complete review since the inclusion of the onsite sewage system professional regulations in 2009, this Periodic Review is an excellent opportunity for the Board to evaluate its active market participants and any significant effects on competition.
Existing regulation 18-VAC160-20 enforced by the Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals Board (WWWOOSSP) should be repealed. In it's current form, the regulation fails to protect the interests of the citizenry with consideration for improvements to real property. As such, recommendations should be delivered to the General Assembly and Governor McAuliffe to:
Justification:
Onsite soil evaluators are currently responsible for designing improvements to real property throughout the Commonwealth via an exemption from the Code of Virginia(54.1_402A11) to be licensed as a professional engineer. Confusion exists between the design authority and regulatory oversight while practicing under the current statutory framework.
Personal decisions to choose a profession are a fundamental right protected by the Constitution. While enjoying these rights, the Commonwealth has a responsibility to "promote the free market system in the economy of this Commonwealth by prohibiting restraints of trade and monopolistic practices that act or tend to act to decrease competition." (§ 59.1-9.2 Code of Virginia)
As a result of the ineffective oversight, one organization has exploited what appears to be a monopoly of professional design services in the Commonwealth. Was this done by design or unintended consequence?
Can the APELSCIDA Board restrain activities associated with the WWWOOSP license?
As for entry into the marketplace, similar use of the engineer in training with direct supervision reflects more closely to "how" persons progress, prepare for qualifying experience, and then become licensed to design under one's own license.
Was the subsidy accounted for in prior deliberations by Planning and Budget?
Yours Truly,
James B Slusser, AOSE
As a previous commenter has stated, I also recommend that the General Assembly and Governor McCauliffe consider removing Onsite Soil Evaluators from the Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals Board (WWWOOSSP) and seating them to The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (APELSCIDLA).
The rationale for such a move is that Onsite Soil Evaluators (OSEs) through an exemption to the practice of engineering in the Code of Virginia (54.1_402A11) have the ability to design onsite sewage disposal systems for real property throughout the Commonwealth. In this role, Onsite Soil Evaluators have more in common with the APELSCIDLA Board than with the WWWOOSSP Board which oversees licensed contractors, operators and tradesmen in the wastewater industry. Also, it would appear to be somewhat of a conflict for members of the WWWOOSSP Board to regulate the interests of OSEs as OSEs are responsible for inspecting the sewage system installations of licensed sewage system installers when the installers are installing sewage systems designed by the OSEs. This means that licensed installers serving on the Board could exercise undue influence over the practices of OSEs who have inspection authority over their work. It would seem to make much more sense that OSEs as sewage system designers be under the authority of the APELSCIDLA Board.
WWWOOSSP has failed to address the current conflict of interest that exists between the Virginia Department of Health (VDH) who employs OSEs to serve as both regulators as well as direct service providers to the general public and OSEs who operate as small businessmen in the private sector who fall under the regulatory scrutiny of VDH-employed OSEs. At the same time VDH has exercised an undue marketing advantage by offering direct soil evaluation and design services to the public at state taxpayer subsidized rates while OSEs working in the private sector must charge a fair market rate for their services in order to cover their business operating costs and try and turn a minimal profit. The end result being that the general public is incentivized to deal directly with VDH for their soil evaluation and sewage system design services as private sector OSEs cannot compete with VDH's subsidized services. It would seem to make more sense that the APELSCIDA Board which is comprised of other professional designers, most of whom are employed in the private sector, would be able to offer a more objective review of OSE roles both in the public and private sectors as well as take more steps to insure that the Commonwealth promotes a healthy free market system for all of its licensees and doesn't engage in monopolistic practices.
Virginia Department of Planning and Budget Economic Impact Analysis dated August 18th, 2015 is inadequate to the task of reporting upon small businesses employing Onsite Soil Evaluators (OSE) who are in competition with a state agency which provides de-minimus subsidized design services, and act as code officials granting or withholding ministerial approval. FOR DPB to assert that the proposed dilution of standards for entry was in response to concerns that "individuals who have learned to perform certain skills in the field competently, but are not able to pass written tests" is surely a new low for DPOR. Unfortunately there also appear to have been Officers of this Board who have personal interests exceeding the statutory exemptions, these Officers benefit from unenforceable regulations resulting from these transactions which may affect their own interest. These regulations lack reference to standards of practice, provisions for disclosure of conflicts of interest and duties to a consumer. There is also benefit accruing to individuals and organizations which offer training to fulfill requirements of these regulations. For the public trust to be sustained this board should be disqualified from promulgating any amendments to Regulations pending an investigation by the Office of Inspector General or other responsible parties charged with determining whether these appearances of conflict of interest and self dealing violate applicable codes. The largest design firm in the state, which is in competition with small businesses including sole proprietorships, limited liability and professional corporations, has undisclosed influence over WWWOOSSP. The result has been the promulgation of dual standards for entrance, training and experience which result in anti-competitive effects which harm the both the consumer and the professional. The public should know this Board received formal complaints concerning licensed OSE, who misused documents, failed to follow DPOR & VDH regulations and GMP, and allowed unlicensed persons to perform professional duties without supervision or practice without a license. Rather than conducting a thorough review of evidence, or determining responsibility and acting to curtail these practices, this board acted to develop a new class of licensure not envisioned in the drafting of the enabling legislation. Please consider the impact of regulations with dual standards, which contribute to anti-competitive effects as recognized under Virginia Antitrust Act 59.1-9.1. Dual standards restrain trade, providing benefit to one party in competition with another. The "journeyman class" of Conventional Onsite Soil Evaluator (COSE), has no requirements for education, and minimal need to document training or experience, nor any guarantee of past or future supervision. There is considerable doubt whether the Board intended for the COSE to have signing authority, or the qualifications to practice this profession. Such ambiguity does not belong in the Professional Regulations. While the Board has discretion to ignore comments provided during the NOIRA, well supported recommendations advocating protections to consumer and supported professional responsibilities were offered. Under guidelines of the Administrative Process Act § 2.2-4007.02 and § 2.2-4007.04 these should have been fully considered. In particular please consider the code:
1. The economic impact analysis shall include but need not be limited to the projected number of businesses or other entities to whom the regulation would apply; the identity of any localities and types of businesses or other entities particularly affected by the regulation; the projected number of persons and employment positions to be affected; the impact of the regulation on the use and value of private property, including additional costs related to the development of real estate for commercial or residential purposes; and the projected costs to affected businesses, localities, or entities of implementing or complying with the regulations, including the estimated fiscal impact on such localities and sources of potential funds to implement and comply with such regulation. A copy of the economic impact analysis shall be provided to the Joint Commission on Administrative Rules;
2. If the regulation may have an adverse effect on small businesses, the economic impact analysis shall also include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. As used in this subdivision, “small business” has the same meaning as provided in subsection A of § 2.2-4007.1;
Onsite systems serve almost one million homes in Virginia, approximately 6,000 new homes are permitted each year, and an equal number apply for repairs. Meanwhile the incidence of shellfish waters in proximity to failed or inadequately designed and constructed conventional septic systems continues to threaten the waters of Virginia. Therefore I call for redevelopment of Department of Planning and Budget return to the issue and develop a study in consistent with applicable guidance and code. The referenced report is not adequate to the task of reporting economic impact on the small businesses as required, nor on the property owners who deserve consistent support for their improvements to real property and the community which expects to be protected from pollution or other damage which could be prevented or mitigated by adequate professional and regulatory oversight.
The proposed regulation should be amended. Documents obtained under FOIA have disclosed inappropriate influences, including financial incentives, prejudices and apparent collusion by and between Officers of this Board, resulting in reasonably foreseeable direct or indirect benefit or detriment as a result of the action. Any review is complicated by private meetings between the staff of VDH and DPOR including voice and electronic communications advocating their private interests. Having reviewed COI forms filed by these board members there does not seem to have been any disclosure of these conflicting influences, business interests, nor other affiliations. While there are thresholds and circumstances which are exempt from COI this Board would benefit from taking inventory.
Special attention should be directed toward the actions of the former chairman of the Board, a licensed professional engineer and also Director of the VDH Office of Drinking Water (ODW). He resigned the Chair following complaint that he did not respond to calls for investigation of Officers under his jurisdiction. Nor would he suspend the Regulatory Review underway until report and recommendations could be made to the Board. The other Officers cannot help but recognize ODW controls the approval of many aspects of their professional responsibilities. Indeed this presence impugned every action during tenure as chair.
For example this board under guidance from staff neglected to develop a regulated professional seal in compliance with:
18 VAC 10-20-760.B.4 4. The seal of each professional responsible for each profession shall be used and shall be on each document that was prepared under the professional's direction and for which that professional is responsible. If one of the exemptions found in § 54.1-402 of the Code of Virginia is applicable, a professional licensed or certified by this board shall nevertheless apply his seal to the exempt work.
Staff responded to an Officer’s query over regulations for sealing, suggesting that a seal is an “unreasonable burden.” In fact the minimal cost of a mechanical or electronic seal does not support this guidance. But the benefit to the public or code official knowing the document is authentic and under the control of the licensed professional is substantial. In light of this outcome I recommend this board develop a policy toward displacement of competition if this has not already been accomplished.
The ex-officio roles of VDH ODW within the Water and Waterworks Operators Section, and distinct differences in responsibilities, risk and scale add further substance to calls for the OSE license to be administered through the APELSCIDLA Board, which oversees every other design license in the Commonwealth. Indeed only the Operators should remain under WWWO as licensed contractors properly belong within the Contractor's boards.