Virginia Regulatory Town Hall
Agency
Virginia Department of Health
 
Board
State Board of Health
 
Guidance Document Change: This policy outlines the procedure for means testing of owners who petition the Virginia Department of Health (VDH) for onsite sewage and private well evaluation and design services pursuant to § 32.1-248.4 of the Code of Virginia (the Code). This policy also establishes Hardship Guidelines whereby VDH may serve as a provider of last resort for onsite sewage and private well evaluation and design services pursuant to § 32.1-248.4 of the Code.

35 comments

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6/18/19  12:25 pm
Commenter: bob marshall / cloverleaf env. cnslt., inc.

GMP 2019-01 Hardship Guidelines
 

Almost eight days into this 30-day comment period, and the proposed document provided is sixteen (16) blank pages as empty as the failed promise to change VDH's business model.

Until VDH publicly demonstrates it will manage its conflicts of interest, the imposition of any hardship guideline constitutes nothing less than restraint of trade across 40% or more of the State. Is anyone willing to investigate?

C. If a written comment is received during a public comment period asserting that the guidance document is contrary to state law or regulation, or that the document should not be exempted from the provisions of this chapter, the effective date of the guidance document by the agency shall be delayed for an additional 30-day period. During this additional period, the agency shall respond to any such comments in writing by certified mail to the commenter or by posting the response electronically in a manner consistent with the provisions for publication of comments on regulations provided in this chapter. Any person who remains aggrieved after the effective date of the final guidance document may avail himself of the remedies articulated in Article 5 (§ 2.2-4025 et seq.).

CommentID: 72596
 

6/19/19  5:04 pm
Commenter: Jeff Walker

Hardship or Unmanaged Conflict of Interest?
 

The primary role of the regulatory community is to administer the onsite sewage program fairly and consistently for the benefit of the public. For any state to permit their staff to provide siting, design and installation inspection services is inappropriate.

To date VDH seems unable to recognize it regulates a statewide program, and has no latitude to establish regions of enhanced or diminished competition. Indeed it has been admonished by every authority, study and report to remove it’s staff from the unmanageable conflicts of interest attendant to rendering design services in lieu of regulatory duties. VDH relies on stakeholders such as those populating SHADAC to support it’s failed vision.

The “hardship doctrine” distributed by Mr. Gregory is the latest insult to consulting firms established to serve clients in developing their private properties.  No rational person accepts the premise that VDH is entitled to continue it’s design monopoly in the face of overwhelming evidence; it’s unwilling to manage the responsibilities, or conflicts of interest regardless the level of General Assembly’s financial support. No other business in the Commonwealth is expected to compete with free, or render services in competition with a state agency which also renders approval of their certified work; tinkering with absurd formulas does not alter the fact that any percentage of no change, is no change.

In 2011 Dr. Richard Otis, PE closed the RD32 Orrock Report with this statement:

“VDH is apparently intending to reserve the right to provide these services where a homeowner's income is below the federal poverty guidelines. While NOWRA understands the concerns that VDH has in ensuring appropriate systems are properly sited, designed and installed where property owners might be unable to afford such systems unless the costs are subsidized, we believe that there are more appropriate approaches than using department staff to assist low income families with siting and design of suitable onsite systems.”

The Commissioner seem unable to reign in the anti-competitive effects which suppress the growth of competitive markets in half the state.  Inventory of marketshare shows the policies to date have done little to encourage the public to retain qualified private consultants. Exacerbated by local policies, fees and governmental agreements public seems to prefer the presumed convenience of one-stop state supported services. The state in competition with consultants who must pass on the increased cost, and delays attendant to the public sector are burdened with expenses not burdening the governor's staff in contracting to deliver onsite services. Yet we persist since we are called upon by the public to address the effects of failed systems which were built in reliance on “VDH de-minimus” services.

We see potential for a more efficient operating model, where landowners contract for all private services including assessment, design, construction and operations. Rather than including VDH in the decision tree we expect clear and consistent standards, uniformly applied and compliant with regulations and site restrictions. Whether VDH has any claim to market participation is uncertain, but the public’s reliance in certain localities is due to least cost incentives, and first refusal policies at the clerks desk, rather than quality of service.

The agency does not seem cognizant that the Hardship Policy which proposed a survey of cost for private services, and availability does not serve a regulatory function. Access to this data may be misused in fixing prices. Once again the unintended consequence of "good government" fails to pass the statutory construction requiring separation of the state from development of private property and contracts. Furthermore the concept of a check box for applicants to claim a property is or will be their principal place of residency is fraught with risk of fraud, absent any guidance toward the citizen who is simply attempting to secure least cost services. The criteria for household income and claims of property ownership already exist in statute, VDH is ill-advised to manipulate these requirements, or ignore requirements for documentation.

For these reasons I sustain my objection to a proposal which is unlikely to provide incentive for the agency to separate the design function from the ministerial duties. Thank you for your consideration of these public concerns.

 

CommentID: 72605
 

6/20/19  1:49 pm
Commenter: Bob Smith

taxpayer benefit
 

Every member of the House Appropriations Committee is complicit in funding VDH design services,  $40 million/year speaks louder than any agency drafting policies.

Proposed policy offers some homeowner's government benefits, but not all. VDH has created loopholes at public expense, only Murphy's Law can regulate this.

 

 

 

CommentID: 72618
 

6/20/19  3:22 pm
Commenter: Erasmus B. Draggon

take steps to eliminate..?
 

Proposed Policy conflicts with:

§ 32.1-248.4. Provision by the Department of certain services for onsite sewage systems and private wells.

A. The Department shall take steps to eliminate evaluation and design services provided by the Department for onsite sewage systems and private wells.


 

CommentID: 72620
 

6/20/19  3:40 pm
Commenter: James B Slusser

Authority Statement
 

Virginia Department of Health proposed policy 2019-01 conflicts with public policy.

Currently, this proposal attempts to circumvent national public goals by maintaining status quo.  VDH can not make a better tomorrow by clinging to a failed program.  Why should VDH adopt public policy to remove themselves from the market place?  The answer was best quoted by Mr. Dwayne Roadcap, former manager of Virginia Department of Health in 2006;

"The answer is simple: because VDH has better uses for its resources and the legislature has said that VDH must accept private sector work.  VDH’s current reality consists of high staff turnover, low morale, and conflict (amongst) itself and with private sector professionals). VDH regulates private sector service providers while simultaneously performing the same services. VDH’s business model focuses resources before sewage systems are used and when there is no risk to public health. When VDH was the sole service provider, this model made sense. Now, a new model is needed because private sector service providers can perform direct services, which allows VDH to shift resources toward risk assessment and risk management—a previously ignored community need. By inculcating the 10 Essential Services into VDH training and requiring VDH field managers to assess their programmatic activities using the 10 Essential Service, it become self-evident to staff that VDH’s historical role does not adequately promote healthy homes, workplaces, or communities."

 

Can the VDH please advise how this policy will create better public health outcomes given their refusal to adopt the 10 Essential Services into the current business model?

Thank you

 

 

CommentID: 72621
 

6/20/19  5:46 pm
Commenter: James B Slusser

2019-01 Hardship Guidelines (D) Number of Private Sector Providers
 

D. Number of Private Sector Providers.

Any owner seeking evaluation and design services in a locality with an insufficient number of private sector service providers shall be eligible to receive VDH evaluation and design services. A locality will be deemed to have an insufficient number of private sector service providers when the number of bare applications received in the locality from May 1st of the previous year to April 30th of the current calendar year that resulted in the issuance of a permit exceeds the estimated number of additional designs that the private sector could provide in that locality.

 

Consider VDH market share allocation within Lenowisco Health District, it does not appear as if GMP 2019-01 will offer market development from 2019-2023 given section (D) of Hardship Guidelines.  

 
COUNTY % Market Share Held by VDH % Market Share Held by Private Sector OSE/PE
LEE 96.10 1.30
SCOTT 83.33 10.42
WISE 91.40 5.38

 

Recommendation:

Please request assistance from the appropriate regulatory authorities within Office of the Attorney General and FTC prior to defining a "market".  Allowing a monopolist to control the size of it's own turf is beyond the reach of public interest and public policy.   On its' face value, it appears this policy is further evidence of exclusionary conduct utilized by VDH (monopolist) to maintain market power.  In 2006, VDH consultant described the imbalance as;  

"The private sector is having difficulty making major inroads because of a pricing imbalance. At the same time the VDH is competing with the private sector at subsidized prices, it also regulates and provides oversight of the private sector functions."  -2006, EL Hamm, VDH RE-ENGINEERING INITIATIVE ONSITE SEWAGE SYSTEM PROGRAM

 

Nearly 13 years later, VDH still holds approximately 90 percent of the market share within the Lenowisco Health District by what means?  Low pricing and free labor which excludes competitors from the market.

 

CommentID: 72624
 

6/20/19  6:26 pm
Commenter: Guido

regulatory capture
 

House & Senate labored over expanding Medicare to families at 138% of poverty, requiring drug testing and proof of income. Under this proposal environmental health staff in Richmond propose extending social benefits to people making 400% of poverty (might not be poor).

Health Department claims "public demand" drives it to spend 6 times the money collected in fees, making up the difference with programs meant to benefit women infants and kids, and covers the loss while lobbying for special appropriations.

Who supports this gift, after promises to change the business model after SHIFT VDH has failed to disclose who (by name, or organization) who is driving this proposed policy. The public deserves to see a public disclosure of the beneficiaries; the needy applicant we can understand, but those claiming need at 400% of poverty merit discovery and publication of their names and the benefits received in public media.

Therefore create a database and publicize these grifters.

 

CommentID: 72625
 

6/22/19  9:54 pm
Commenter: quoting Mr. Gregory, VDH January 06, 2015 8:29 AM

SHIFT seven consensus recommendations
 

The seven consensus recommendations, and the documents and policies developed to respond to each recommendation, are as follows:

 

  1. VDH must provide regulatory oversight, which includes all duties that do not require a license.  More specifically, VDH will conduct inspections, manage policy, draft and issue operating permits, and maintain and manage records and data.

 

These actions are already ongoing.  VDH will continue to implement laws and regulations pertaining to onsite sewage systems and private wells, including the review of private sector work.

  1. VDH should implement a statewide policy as soon as possible that applicants be encouraged to use the private sector for construction services.  Strategies to use:
  1. Educational/Disclosure Strategy:  VDH should provide educational material to applicants outlining the limits of VDH services and encouraging applicants to obtain private services.

There are two components to implementing this recommendation.  The first component is for all local health departments to provide applicants in the onsite sewage and private well program with a “Disclosure Document” (see attached).  This document will be posted in a prominent location in the area where applications are accepted, and be provided to anyone requesting an application.

The second component to implementing this strategy is to create a website based on the information provided in the “Disclosure Document.”  Applicants looking for an electronic copy of the onsite sewage and private well application will be directed to http://www.vdh.virginia.gov/EnvironmentalHealth/Onsite/Application.  This site provides the same information as the “Disclosure Document” and includes a link to the sewage and well application.

  1. Service Provider Strategy:  VDH should provide/make available to consumers the names and contact information of private sector providers willing to provide work in that health district (through an easy mechanism such as website or roster maintained by the private sector).

Staff  will let applicants know VDH is creating a list of service providers (OSE, PE, installers, haulers, and well drillers), which can be review at http://www.vdh.virginia.gov/EnvironmentalHealth/Onsite/ServiceProviders.  The site currently states the list is “coming soon” since we have not received contact information from service providers yet.  We expect the first list to go up in early February once service providers have time to sign up.  This list will expand over time as service providers upload their information to the website.  Please let your stakeholders know about the website so they can upload their information (see the link at the bottom of the service provider webpage to sign up).  The intent is to create list similar to the one created for AOSS Operators at http://www.vdh.virginia.gov/EnvironmentalHealth/Onsite/aossoperatorlist.htm. 

  1. All Level 1 and 2 reviews will be documented with standard VDH forms.  Copies of all official documents shall be sent to the OSE/PE after the review has been completed.

VDH staff will be instructed to share a copy of our Level 1 and Level 2 review with the private sector OSE/PE whose work was reviewed.  This process will use the existing Level 1 and 2 review forms.  This information will be provided to the private sector OSE/PE when they are copied on the approval or denial letter.

  1. Work Product Expectations:  VDH should implement a policy as soon as possible that requires VDH and private sector work to meet the same work product expectations.

Implementation of this recommendation incorporates four different components.  The first component is to require VDH staff to use new VENIS print forms when issuing permits for bare applications.  These new print forms more closely mirror private sector design packages by including: a permit letter, a cover page, a certification statement, the VDH OSEs license number, and page numbering, among other features.  The expectations for the information provided on these forms is outlined in GMP 2015-01.

 

The second component to address this recommendation is to require VDH staff to generate a system curve for all onsite sewage system construction permits where a pump is required.

 

The third component is to require all VDH staff to provide scale drawings with all onsite sewage system and private well construction permits.

 

When combined, the first three components create the new VDH OSE permit package.

 

The fourth component to addressing this recommendation is a revision to GMP 126.B.  The revised policy, GMP 2015-01, is attached.

 

Major changes in GMP 2015-01 include:

 

  • New work product expectations for VDH OSE’s.
  • Use of the Malfunction Assessment on VDH and private sector repair designs (see attached form).
  • VDH staff performing Level 2 inspections on 10% of private OSE/PE design installations.
  • Design change allowances (see Part III Section C).
  • Prioritization of applications.
  • Process for survey plat waivers for private sector designs (see Part II Section F).
  • Elimination of the abbreviated design form and revisions to site and soil evaluation report form (see attached).
  • Discussion on professional relationship and judgment.
  1. Work to be done under Licensure:  Everybody who is doing site evaluations and design should be doing it under the auspices of a licensed individual.

OEHS has reiterated that VDH staff with an OSE license can sign permits issued for onsite sewage systems and private wells. VDH staff who performs work without a license must perform that work under the direct supervision of someone with the license.  The person with the license must sign the permit approval or denial.  

  1. Revise GMP 51 to reflect the new proposed model.

OEHS has included revised procedures for prioritizing application in GMP 2015-01  Therefore, GMP 51 has been rescinded.

  1. VDH must have clear/transparent reporting.  For any changes to existing practices, the VDH Quality Assurance/Quality Control (QA/QC) must be revised to address the newly proposed model.

Review and revision of QA/QC policy is an ongoing process.  OEHS has set a goal to have any necessary updates completed within the next 12 months.

 

These are significant changes in the onsite sewage and private well program.  I expect you and your organizations members will have questions.  We will be holding an informational session soon to help outline all of the changes and answer your questions.  I will send you sign up information for that session very soon.  Until that time, if you have any question or comments, please feel free to contact me. I wish you all a Happy New Year.

 

Sincerely,

 

Lance Gregory

Environmental Health Coordinator

Office of Environmental Health

Virginia Department of Health

(804) 864-7491

CommentID: 72634
 

6/24/19  5:03 pm
Commenter: Elaine Meil

Compliance with Code of Virginia is Missing
 

VDH states that the authority to establish this policy are to be found in § 32.1-248.4. You have go back to the bill text to see where VDH has authority for the means testing through July 1, 2023. Someone needs to get the online version of the Code of Virginia updated to include paragraph 6. My retrieval did not include paragraph 6 but it appears it was passed into law.

The General Assembly stated its intention “to maintain the Department as a provider of last resort…” To that end, three things shall be included:

i) the availability of properly licensed service providers working within a locality or region..

The Merriam Webster dictionary used by the Supreme Court of Virginia says the word availability is defined as “the quality or state of being available.”

The VDH Hardship Guidelines include the following statement. “Once a locality is determined to have a sufficient number of private sector services providers, it shall maintain that designation.”

The standard set for VDH to consider a hardship was the availability of service providers working within a locality or region. The present participle is defined as “a participle that typically expresses present action in relation to the time expressed by the finite verb in its clause and that in English is formed with the suffix -ing and is used in the formation of the progressive tenses.”

This statement suggests VDH does not agree with the criteria established by the General Assembly. By whose authority is VDH rewriting the Code of Virginia to eliminate this criteria during any time frame?

Is VDH suggesting that a property owner could call all the service providers and finding none immediately available to complete the property owners’ work that that property owner is not eligible to petition for a hardship even though no service provider is available? The Hardship Guidelines fail to maintain the Department as a provider of last resort when there is no availability of service providers working as required by the Code of Virginia.

The standard on number of service providers is contrived and fails to meet the standard of the Code of Virginia. Please, provide evidence that supports VDH’s assumptions that the private sector will have a 25% growth rate and then followed that the next year by a compounding 50% growth in private services, then a compounding growth rate of 75% followed by a compounding growth rate of 100%. This test is nonsensical and takes a very circuitous route to determine availability when a basic test could be instituted. The simple clear test is a property owner attempts to find a service provider and cannot and so petitions VDH for a hardship.

This is not going to be the growth rate of private services but the growth rate of bacteria in coastal waters and Virginia’s shellfish due to failing septic systems waiting for design services.

ii) disciplinary history of private sector providers.

The Merriam Webster dictionary states history is “events of the past.”

While I believe current disciplinary actions would have been a good consideration for the General Assembly to include in implementation of this VDH Central Office-led public policy, the Hardship Guidelines fail to implement the Code of Virginia by stating that private service providers cannot be counted while undergoing disciplinary action against their license. We have due process in the Commonwealth and undergoing does not mean something will occur. The Hardship Guidelines need to consider only the history or completed events of the past of the service providers to meet the requirement of the Code of Virginia.

iii) the cost of private sector services.

Did I miss it? Where in the Hardship Guidelines did VDH comply with the Code of Virginia that “the Department’s guidelines shall include considerations for hardships based on …iii) the cost of private sector services.” It is not a may but a shall. How is VDH’s guidelines offering hardships based on cost for all property owners who meet the standard in the Code of Virginia?

VDH needs to have an attorney representing the Commonwealth review the guidelines in light of the Code of Virginia since it appears that VDH has substantial compliance issues with Paragraph 4.

I do not support VDH Central Office decision to lead and institute privatization of all of these services. This raises the cost of access to sanitation which will disproportionately impact low income, minority and underserved communities and result in more raw sewage on the ground. Public services which once were provided at no charge to individuals now will cost large percentages of a poor person’s annual income. An individual on SSI this year has a monthly income of $771. VDH has made no consideration in any of these guidelines for hardship for the cost of these services nor sought to mitigate the effect of privatization on these individuals.

Governor Northam has issued Executive Order 29 establishing the Virginia Council on Environmental Justice. The second priority of this body is public health. I intend to forward these comments and a description of the effect of this policy to this Council. I urge VDH Central Office to submit this public policy to the Council for their review. If this is good public policy, VDH Central Office has nothing to be ashamed of by seeking the Council’s review of this policy.

This public policy appears to be outside VDH’s General Assembly granted authority to establish Hardship Guidelines, has disastrous implications for public health especially of poorer Virginians and, with raw sewage washing into coastal waters, could increase shellfish condemnation areas potentially devastating Virginia’s shellfish industry. These published Hardship Guidelines need to be withdrawn, VDH needs to review the Code of Virginia with an attorney that can provide legal advice and, as required by Paragraph 4, solicit and consider input from the Virginia Council on Environmental Justice and representatives of Virginia’s shellfish industry as stakeholders and then draft Hardship Guidelines that comply with the adopted Code of Virginia.

CommentID: 72677
 

6/28/19  12:22 pm
Commenter: Jeff Walker

punitive fees, increased cost of OSE service
 

Fees effective July 1, raise the cost of services for citizens contracting design services with Onsite Soil Evaluators (OSE). Adding another tax further diminishes the consumers interest in securing non-subsidized services.

The fee regulations under https://law.lis.virginia.gov/admincode/title12/agency5/chapter620/section70/. Conflict with the Budget Bill, which does not authorize a higher fee, nor any supplemental fee to any locality except Augusta County. The funds appropriated by the General Assembly cover the contract cost of the Onsite program, the legislation was clear if the VDH can not provide the service at $425, it shouldn't solicit the work. Additional local fees compound the market interference with an illicit markup.

A.1. Notwithstanding § 32.1-163 through § 32.1-176, Code of Virginia, the State Health Commissioner shall charge a fee of no more than $425.00, for a construction permit for on-site sewage systems designed for less than 1,000 gallons per day, and alternative discharging systems not supported with certified work from an authorized onsite soil evaluator or a professional engineer working in consultation with an authorized onsite soil evaluator.

OSE and our customers are being punished, by administrative fees, delays in review or denial's for issues inconsistent with regulatory process. 


3. Notwithstanding § 32.1-163 through § 32.1-176, Code of Virginia, the State Health Commissioner shall charge a fee of no more than $225.00, for a construction permit for an onsite sewage system designed for less than 1,000 gallons per day when the application is supported with certified work from a licensed onsite soil evaluator.

Naturally these compounded actions raise the cost of compliance, thus our cost of service to the landowner. It appears VDH review is being used to penalize or favor consultants, it is clear that time is money, and the power to delay or deny permitting is being used as an anti-competitive effect. This is compounded by the lack of substantive policies restricting VDH staff from opining on the cost of private services, indeed we understand that staff has ability in their choice of words to affect the public's choice of service provider.

VDH has persisted in maintaining a dual standard, transferring liability to the consumer, and choosing which regulations or standards of practice are applicable at their staff's discretion. The practice of approving unlicensed contractors installations is a clear and present threat, and yet to date the agency has succeeded in persuading it's sister agency DPOR not to investigate complaints against staff who clearly violate the requirements to report unlicensed activity. Indeed certifying work absent license is a type of fraud against the homeowner, which is unethical by any standards.

A free market introduces competition for services, in both price and quality; and forces firms in the marketplace to become more efficient in obtaining results. But for VDH interference this would also be the case in onsite services throughout the Commonwealth of Virginia. Clearly the consumer benefits in hiring a licensed professional, yet not every consumer has the ability to distinguish the difference between VDH bare applications, and fully supported services. Indeed VDH favoring winners, and penalizing losers in the competitive marketplace undermines the agency's own authority, and the reputation of our industry.

 

 

 

 

 

 

CommentID: 72774
 

7/3/19  3:28 pm
Commenter: John Coker, Chairman, Eastern Shore of Virginia Ground Water Committee

Concerns, Code Compliance, and Environmental Justice
 

Over the last three years, the Eastern Shore of Virginia Ground Water Committee (ESVGWC) has expressed their concerns about privatization of the onsite sewage system soil evaluation and design services that our local Virginia Department of Health (VDH) district efficiently supplies to citizens in our region. The Hardship Guidelines (the Guidelines), to be designed in compliance with § 32.1-248.4, will set the ease with which residents in need can receive necessary services, the efficiency and effectiveness of VDH staff, and will shape the impact of new privatization policies to public health in our region. The Committee wants to reemphasize that it does not wish for the timeliness, quality, or cost of these services to suffer due to the reduction of services by VDH and increased dependency on the private sector. The private sector should be held to at least the same standard that has been set by the local VDH office with regards to timeliness and quality of work. On the Eastern Shore, this standard is quite high.

During previous versions of the draft Guidelines, some of the concerns of the Committee were addressed. This final version, however, removes those sections and most of the vital aspects as mandated by the General Assembly and the Code of Virginia are neglected entirely. Thus, rather than going into specific concerns and details, the Committee recommends VDH have an attorney review the guidelines on behalf of the Commonwealth of Virginia and that the SHIFT program and these associated Guidelines be submitted to the Commonwealth of Virginia Environmental Justice Commission before implementation.

The ESVAGWC appreciates the role that the VDH has historically played in relation to protecting public and environmental health and recognize that many of the residents on the Eastern Shore will continue to rely on VDH to provide vital well and septic evaluation and design services.

CommentID: 72881
 

7/5/19  9:58 am
Commenter: Brook Duer

Health concerns because permits will take too long.
 

There are 2 OSE's that work Accomack and Northampton Counties on the Eastern Shore of Virginia.  These 2 OSE's are already back logged and this regulation will only make things worse.  If the health dept is not allowed to draw permits in Northampton County it will become a health concern.  There will be sewage on the ground for long periods of time before a permit can be issued and most of the residents can not afford to have the tank pumped multiple times while waiting for the permit to be issued.  Please allow the health dept to continue to draw repair sewage permits so the residents don't have to wait months to receive a permit and have their sewage system repaired.  Thank you.

CommentID: 72913
 

7/5/19  2:00 pm
Commenter: Pete Duer

Health Dept should be allowed to design repair permits
 

The state has already given the Accomack county health department the ability to continue designing repair sewage permits, it is hard to believe that Northampton county would not be included in this. On the Eastern shore of Virginia which is comprised of Accomack and Northampton County we have 2 AOSE’s designing in this area.   The new regulations of privatizing the design of well and septic in Virginia has added extreme cost to its citizens with increased time in getting a permit, pumping cost until you get a permit and the cost of getting a permit.  Until there are sufficient AOSE’s in the state or more specifically in each county the health department should be required to design permits for repairs for the public safety of its citizens.  

CommentID: 72923
 

7/8/19  12:00 pm
Commenter: Jeff Walker

licensed design, protects public health
 

VDH in failing to comply with it's own regulations has become the favorite for local government representatives concerned over cost of development; not so much cost of compliance, or the effect of non-compliance which too often incurs the added cost of public water and sewer at public expense.

As others have noted, Shellfish Water Closures seem to coincide with new developments which were designed and approved by VDH staff. Public documents supporting improvements to real property merit competent professionals, which expect to be paid for these services, including verification of boundaries, scale drawings, full assessment of soils and documentation of the property both existing and proposed.

We heard at SHIFT the opposition to private sector services due to cost, and availability, and preference for government employees; which coincidentally are tax-payer funded, and have discretion to waive regulations. In total we find that VDH designed systems are more likely to fail, and contaminate ground and surface waters. Publicly supported systems also more likely to be undersized or utilize questionable area reductions, rather than fully comply with Code, or invoke advanced treatment systems to protect the environment especially sensitive locations such as high water table, or small lots utilizing private wells.

Something to consider when comparing costs, and selecting service providers; is does that professional owe his allegiance to the Governor; or the client, his obligations and the licensing boards? The discerning public will come to realize the "bad apples" claim sovereign immunity, and fail to disclose the risks transferred to the public; persisting in utilizing the VDH model of site assessment and design adds risk to all concerned.


CommentID: 72958
 

7/9/19  5:16 pm
Commenter: Jimmy Bundick

Hardship for Northampton Residents
 

I’ve been in the water and sewage business for 58 years. During this time, I have been through many changes in health department procedures. The most recent change in the way permits are issued will certainly result in hardship for Northampton County residents if the health department is not allowed to issue permits to repair sewage systems. There are not enough OSE’s on the Eastern Shore of Virginia to cover the current demand for new system permits in both Accomack and Northampton Counties. If we also require those same OSE’s to issue the repair sewage applications for our customers, the residents of Northampton County will suffer because they will have to pay higher fees as well as wait much longer to have their repair permit issued. Most of the residents of Northampton County cannot afford to have their septic tanks pumped multiple times while waiting to have a permit issued to get their sewage system repaired. Therefore, sewage will lie on the ground for long periods of time before a permit can be issued to repair the system. Without the local health department helping to issue repair sewage system permits, there is little chance they will be issued in a reasonable amount of time, resulting in prohibitive costs and unhealthy living conditions for residents.

CommentID: 73278
 

7/10/19  4:54 pm
Commenter: Larry F. Baldwin, Consulting Soil Scientists of the Carolinas Inc.

GMP 2019-01 Comments
 

Minimum public health, safety, and welfare standards are an important, legitimate, and rational function of government.  Governmental oversight is normally implemented through setting standards, permitting, and compliance requirements.  The on-site waste treatment industry has been the exception in many States, where a governmental agency sets the standards and then tries to perform all the technical evaluations, design, layouts, inspections, and compliance with varying success.  Typically a governmental agency will not assume liability or responsibility for their works when failures occur or insubordinate works are performed, which leaves the public in a precarious position without a legal recourse due to State sovereignty, but the public is still required to comply with minimum health, safety, and welfare standards set by the same State agency.

Privatizing the on-site waste treatment industry with trained, competent, responsible, and legally liable professionals is a rational way to proceed.  This would be the same for any other professional works with as much or greater liability, such as home building, bridge / highway construction, chemical applications, and etc.  

There will always be hardship situations and government typically handles this through public assistance funding for services.  Many professionals also do pro-bono work which can be recouped as a charitable contribution when recognized by governing tax codes.

CommentID: 73420
 

7/10/19  8:01 pm
Commenter: Guido Sarducci

Private enterprise at taxpayer expense...
 

The "Hardship Proposal" is contrary to every study VDH has commissioned; RD32, E.L. Hamm SHIFT, in ignoring the facts, VDH budgets 5 hours for an EHS (Environmental Health Specialist) to evaluate a lot being permitted for new construction, and subsequently due to errors or ommissions in that EHS's conduct of assessment then results in an request for a repair permit which captures at least 36 hours of an EHS time to mitigate sewage on the surface or infiltrating the groundwater. As stated by others benefiting from transfer of liability through gift of Sovereign Immunity. If an EHS is paid $50k/year, perhaps the public and the tax payer would benefit from laying these people off to pursue a private tax paying business in service to the private landowner, at private expense. The facts also indicate there are at least two (2) OSE w/in 50 miles of practically every landowner in the state. The faux formula proposed by the agency negates the unused capacity of these people who have invested in offering competent services. There is no reason for VDH to employ OSE if the mission is to review and approve certified work, with all liability carried by the firm. Indeed there has been too little discussion about the Indemnification Fund rather than the privatization of risk and liability.

VDH has already allocated the people's resources to study the "privatization" of the onsite business, every study has endorsed the movement of site evaluation to the private sector. The Agency would be well advised to shift it's focus to enforcement of the Regulation, rather than market management. Private business have shown the initiative to use technology and invest in the tools to provide the most efficient solutions in compliance with regulation. It is time for VDH to completely remove it's staff from any competitive interest in septic design, and focus completely on public health.

CommentID: 73437
 

7/10/19  8:08 pm
Commenter: Joel S. Pinnix, PE

GMP 2019-01 - the essence of TYRANNY
 

There have been several maps created and sent to VDH demonstrating the adequacy of private sector coverage throughout the state. 

Please provide to the public, scientific, or other factual, evidence basis for the algorithm included in the VDH Policy Document GMP 2019-01.  It appears, upon review, that VDH has created the basis of the policy from “thin air” in order to propagate a self-fulfilling scheme.

VDH’s contrived algorithm is the essence of TYRANNY – government projecting its will upon the population without due process, without objective evidence of the facts.

CommentID: 73440
 

7/10/19  8:16 pm
Commenter: Jim Bowles

all the data, all the time
 

From: Knapp, Allen (VDH) Sent: Friday, September 02, 2011 1:33 PM To: Bowles, James (VDH); Roadcap, Dwayne (VDH); Bolling, Patrick (VDH) Subject: Re: Privatization study Guys, This came up in my conversation with Ben Berteau of Infiltrator. Basically he wondered why we weren't fighting this. I explained that we don't take sides when it comes to legislation...that we provide information, etc. Then it occurred to that if we had concerns about this legislation, we would express them. Then I thought, the only basis we could have for concern would be public health or environment...then I wondered if there might be any data showing any difference betwEen private work and vdh work. Makes sense on some level- going into the AOSE program we said ther was no data to show that private evaluations are any riskier than public. Now where are we after more than decade? Allen. From: Bowles, James (VDH) Sent: Friday, September 02, 2011 08:52 AM To: Roadcap, Dwayne (VDH); Knapp, Allen (VDH); Bolling, Patrick (VDH) Subject: RE: Privatization study I hadn’t thought about trying to compare the failure rate of permits issued by VDH to the failure rate of permits issued by OSEs/PEs. I think it can be done, at least on a superficial level, but even that would take some time because the teasing the data out would be complicated, given the current structure of the data base. Once you identify the systems that have failed, it’s not always easy to categorize whether it’s a VDH permit or a private sector permit. For example, if an EHS issues a construction permit based on an OSE certification letter, is that an EHS permit? What about if an EHS does a site evaluation and then a PE designs the system? Failing to stratify the comparison for these differences could produce very misleading results. Then there’s the problem that VDH doesn’t design permits for alternative system. So, in the end, we might be left with only a relatively small number of systems for comparison: conventional systems for which the original site evaluation and design were both done either by an OSE or by an EHS. If we don’t have a large enough population of data, then the results may not be particularly meaningful. And I don’t think that we want to just do a “preliminary analysis” because once it’s done, the data is going to be out there, and it’s going to be difficult or impossible to control the use of bad (or at least incomplete, insufficient) data to support a position that the data, on the surface, seems to support. The bottom line, IMHO, is that we can do this but it will take some planning and some time. So we need to decide what we won’t do if we decide to pursue this. But it would be interesting, and I’d be willing to pursue it if you have the time to spend helping design the study. Jim

CommentID: 73442
 

7/10/19  8:24 pm
Commenter: Fred Beats

Orrock Report RD32 comments in general
 

Correspondence between Virginia Department of Health officials during the RD32(2011)

report to Private Sector Service Delivery for the Onsite Sewage and Well Supply Report.  At

the time of RD32, public records depict agency mentality regarding public health. 

 

The agency does not take sides on legislation, but wrote and lobbied HB888.  This bill is a

testament to the corruption factor associated with public health delivery in Virginia.   

 

Can the agency provide justification for hardship while the state cost of service is 3 times

greater than the cost by private sector on repairs?

 

"From:                                         Knapp, Allen (VDH)

Sent:                                           Friday, September 02, 2011 1:33 PM

To:                                               Bowles, James (VDH); Roadcap, Dwayne (VDH); Bolling, Patrick (VDH)

Subject:                                     Re: Privatization study

 

Guys,

This came up in my conversation with Ben Berteau of Infiltrator. Basically he wondered why we weren't fighting this. I explained that we don't take sides when it comes to legislation...that we provide information, etc. Then it occurred to that if we had concerns about this legislation, we would express them. Then I thought, the only basis we could have for concern would be public health or environment...then I wondered if there might be any data showing any difference betwEen private work and vdh work.

Makes sense on some level- going into the AOSE program we said ther was no data to show that private evaluations are any riskier than public. Now where are we after more than decade?

Allen.
 

From: Bowles, James (VDH)
Sent: Friday, September 02, 2011 08:52 AM
To: Roadcap, Dwayne (VDH); Knapp, Allen (VDH); Bolling, Patrick (VDH)
Subject: RE: Privatization study
 

I hadn’t thought about trying to compare the failure rate of permits issued by VDH to the failure rate of permits issued by OSEs/PEs.  I think it can be done, at least on a superficial level, but even that would take some time because the teasing the data out would be complicated, given the current structure of the data base. 

 

Once you identify the systems that have failed, it’s not always easy to categorize whether it’s a VDH permit or a private sector permit.  For example, if an EHS issues a construction permit based on an OSE certification letter, is that an EHS permit?  What about if an EHS does a site evaluation and then a PE designs the system?  Failing to stratify the comparison for these differences could produce very misleading results. Then there’s the problem that VDH doesn’t design permits for alternative system.  So, in the end, we might be left with only a relatively small number of systems for comparison:  conventional systems for which the original site evaluation and design were both done either by an OSE or by an EHS.  If we don’t have a large enough population of data, then the results may not be particularly meaningful.

 

And I don’t think that we want to just do a “preliminary analysis” because once it’s done, the data is going to be out there, and it’s going to be difficult or impossible to control the use of bad (or at least incomplete, insufficient) data to support a position that the data, on the surface, seems to support. 

 

The bottom line, IMHO, is that we can do this but it will take some planning and some time.  So we need to decide what we won’t do if  we decide to pursue this.   But it would be interesting, and I’d be willing to pursue it if you have the time to spend helping design the study.

 

Jim

 

 

 

From: Roadcap, Dwayne (VDH)
Sent: Thursday, September 01, 2011 4:18 PM
To: Knapp, Allen (VDH); Bolling, Patrick (VDH)
Cc: Bowles, James (VDH)
Subject: RE: Privatization study

 

I hope to finalize the interview and survey questions next week.  We can follow-up with the manufacturers.  Regarding your second question, I don’t think we have an ability to accurately calculate failure rates of repair permits as far as I know.  VDH issues over 75% of the repair permits.  I’ll let Jim weigh in…..

 

Dwayne

 

From: Knapp, Allen (VDH)
Sent: Thursday, September 01, 2011 8:08 AM
To: Roadcap, Dwayne (VDH); Bolling, Patrick (VDH)
Subject: Privatization study

 

Dwayne and Patrick,

 

I was talking to Ben Berteau from Infiltrator today and two things occurred to me.  First, you may want to consider him as a potential interviewee.  Second, are you planning to look at ‘failure rates’ or repair permits from VDH vs AOSEs?

 

Allen."

 

CommentID: 73444
 

7/10/19  8:27 pm
Commenter: Joel S. Pinnix, PE

Proprietary v Governmental Services
 

VDH's staff should be aware, and concerned, that as licensed OSE's they are solely responsible for their work product when designing a private utility.  VDH, as an agency, has no authority to design.  They have no exemption to licensure.  They are beholden to the personal, professional licenses granted to their experienced Onsite Soil Evaluator staff.

A review of 54.1-400 includes the definition of engineering which includes consulting, planning and design of private utilties.  VDH stipulated to this FACT in the VDH-DPOR memorandum of agreement, dated December 2006.  It was the precursor to the exemption to licensure in 54.1-402.

The term "private" is essential in understanding the role and responsibility of the licensed designer.  In this case, "private" equates to proprietary and is thusly excluded from protection under Sovereign Immunity.

VDH's environmental health specialists play an important role in protecting public health.  In almost every capacity they act to promote "governmental" interests and are protected under the doctrine of Sovereign Immunity.  However, when providing "proprietary" services, such as designing improvements to privately owned property, the veil of sovereign immunity falls away.  And you, the licensed professional are solely accountable.

How will VDH protect you?  Think about it.  Every time you design something and send it out , you put your license and your personal assets at risk!  You are not incorporated.  You have no professional liability insurance. 

I don't know how you sleep at night.  That kind of risk would eat at me continually.

CommentID: 73445
 

7/10/19  8:39 pm
Commenter: Virginia General Assembly

HB 558 Onsite sewage systems and private wells; evaluation and design, report.
 

HB 558 Onsite sewage systems and private wells; evaluation and design, report.

Introduced by: Robert D. Orrock, Sr. | all patrons    ...    notes | add to my profiles

SUMMARY AS PASSED HOUSE: (all summaries)

Onsite sewage systems and private wells; evaluation and design. Directs the State Health Commissioner to develop a plan for the orderly reduction and elimination of evaluation and design services by the Department of Health for onsite sewage systems and private wells, which shall provide for the protection of the public health as the Department transitions to accepting only applications that are supported by private site evaluations and designs from a licensed professional engineer or licensed onsite soil evaluator or, for any work subject to regulations governing private wells in the Commonwealth, by a licensed water well system provider. The Commissioner shall report to the Governor and the General Assembly by November 15, 2016.

CommentID: 73449
 

7/10/19  8:39 pm
Commenter: Joel S. Pinnix, PE

Subsidized Services
 

What strikes me is VDH’s continued defense of fee-for-service design of improvement to private property.  There may be some instances where this is appropriate – for instance a “give up your home equity repair waiver”.    But on balance, anyone applying for a permit either owns a home or wants to build a home.  Either way, the cost of design of a septic system is insignificant compared to the cost of a home, or the cost of construction!

What is significant is the $1.4 million hole in budget that VDH fills with $14 million from the general fund.  That’s an amazing feat of deception.  

The Office of Management and Budget and budget concluded that VDH was providing design services at 20% of cost.  The true cost is on the order of $2000 per design - 80% of that comes from tax payers.

The private sector will never be competitive with VDH's subsidized services when evaluated solely on a cost basis.  

CommentID: 73450
 

7/10/19  9:02 pm
Commenter: Joel S. Pinnix, PE

Constitution of Virginia - Article 1, Section 3. Government instituted for common benefit
 

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

In plain language - VDH's policy, and contrived algorithm, violates the Constitution of Virginia, is a maladministration of government and is inadequate and contrary to the public weal.

CommentID: 73453
 

7/10/19  9:07 pm
Commenter: Roadkill, Dwayne

VDH failures to administer the public record, despite funding and directive
 

Task #7: Improve the collection and management of data about onsite sewage systems and private wells, including (i) creating a web-based reporting system for conventional onsite sewage system operation and maintenance, (ii) accepting applications and payments online, (iii) making onsite sewage system and private well records available online, (iv) creating a complete electronic record of all permitted onsite sewage systems and private wells in the Commonwealth, and (v) creating procedures for tracking Notices of Alleged Violations and corrective actions.

A new EH data management system is slated to be in place by January 1, 2019. The new system will include: a web-based reporting system for COSS; a method for accepting applications and payments online; a method for making onsite sewage and private well records available online; and tracking Notices of Alleged Violations and corrective actions. VDH has also instituted several pilot projects to develop a process for creating a complete inventory of onsite sewage systems and private wells and is making progress. OEHS has also created a new data management division which will assist in monitoring and implementing the new data system. The new system will likely have improved reporting capabilities.

CommentID: 73455
 

7/10/19  9:18 pm
Commenter: #patriot

un-Constitutional for VDH to provide services for improvement of private property
 

Constitution of Virginia

Article X. Taxation and Finance

Section 10. Lending of credit, stock subscriptions, and works of internal improvement

Neither the credit of the Commonwealth nor of any county, city, town, or regional government shall be directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation; nor shall the Commonwealth or any such unit of government subscribe to or become interested in the stock or obligations of any company, association, or corporation for the purpose of aiding in the construction or maintenance of its work; nor shall the Commonwealth become a party to or become interested in any work of internal improvement, except public roads and public parks, or engage in carrying on any such work; nor shall the Commonwealth assume any indebtedness of any county, city, town, or regional government, nor lend its credit to the same. This section shall not be construed to prohibit the General Assembly from establishing an authority with power to insure and guarantee loans to finance industrial development and industrial expansion and from making appropriations to such authority.

CommentID: 73460
 

7/10/19  9:19 pm
Commenter: Joel S. Pinnix, PE

Policy v Regulation
 

A review of 32.1-248.4.A.4 provides enabling authority to the Department to develop "hardship" guidelines.  There is no clear definition or legal term identified as "guidelines" with the statutory or regulatory framework.  Generally speaking, a "guideline" is a "rule" (see 32.1-127.01 as an example)

VDH's course of action, to develop this rule through policy, is contrary to legal authority under 32.1-2.2 et seq.

The hardship guidelines should clearly be part of, and included within, a REGULATION - either an existing regulation or a newly created regulation duly promulgated by the BOARD of HEALTH following the full Administrative Process Act.

VDH cannot regulate by policy. Policy is uninforceable as law. 

 

 

CommentID: 73461
 

7/10/19  9:33 pm
Commenter: James B Slusser

Legality of Local Mark ups(fees) on private sector work
 

Can VDH please consult with the Office of the Attorney General regarding the illegal municipal fees?  

§ 15.2-2157.1. Permit for onsite sewage disposal system installation in certain counties.

Augusta County may require any person desiring to install a septic tank or other onsite sewage disposal system to secure a permit to do so. A reasonable fee may be prescribed, not to exceed $150, for processing an application for such a permit.

 

Each year, every locality is required to sign a local government agreement which specifies terms and conditions.  The terms of cost are designated by what fees will be charged.

How can a VDH propose a guidance document where counties are knowingly charging illegal markups on work provided by private sector?

 

Despite the state subsidizing all VDH produced works of septic and well design, private sector designers must pay retaliatory fees to various counties.  This drives the cost differential of services to greatly influence subsidized applications.

 

Please stop the use of local fees without general assembly authorization on private sector work.     

 

 

Appendix 2: Local Application Fees of OSS and Private Wells District

Locality

Service

Fee

Central Shenandoah

Augusta

OSS Construction Permit or Certification Letters (with or w/o supporting work)

$120.00

Chesterfield

Chesterfield

OSS Construction Permit or Certification Letters (with or w/o supporting work)

$50.00

Chesterfield

Powhatan

OSS Construction Permit (with or w/o supporting work)

$185.00

Cumberland Plateau

Tazewell

OSS Construction Permit or Certification Letter (with or w/o supporting work)

$57.50

Henrico

Henrico

OSS Construction Permit or Certification Letter (with or w/o supporting work)

$50.00

Fairfax

Fairfax

Well Construction Application Fee

$200.00

Fairfax

Fairfax

Well Water Contractor License Fee

$150.00

Fairfax

Fairfax

Routine Water Sample

$25.00

Fairfax

Fairfax

Written Evaluation of Existing Private Well Water Supply

$50.00

Fairfax

Fairfax

Re-inspection Fee

$100.00

Fairfax

Fairfax

OSS Construction Permit

$200.00

Fairfax

Fairfax

OSS Expansion Permit

$125.00

Fairfax

Fairfax

Change in Approved Location

$130.00

Fairfax

Fairfax

Written Evaluation of Existing Individual OSS

$200.00

Fairfax

Fairfax

Septic Contractor License Fee

$150.00

Fairfax

Fairfax

Sewage Handler Fee

$710.00

Fairfax

Fairfax

Sewage Handler Fee – Each Additional Vehicle

$360.00

Fairfax

Fairfax

Portable Toilet Providers Initial Fee

$75.00

Fairfax

Fairfax

Portable Toilet Providers Renewal Fee

$60.00

Fairfax

Fairfax

Site Development Review

$85.00

Fairfax

Fairfax

Building Permit Review

$75.00

Fairfax

Fairfax

AOSS Review

$200.00

Lord Fairfax

Clarke

Well Construction Permit

$185.00

Lord Fairfax

Clarke

OSS Construction Permit or Certification Letter (with or w/o supporting work)

$270.00

Lord Fairfax

Frederick

Well Construction Permit

$50.00

 

CommentID: 73471
 

7/10/19  9:52 pm
Commenter: Jeff T. Walker, OSE

deemed approved
 

Regarding Deemed Approved, VDH has shirked it's responsibilities to either question the substance of fact of a certified application, or deem it approved on the 16th day following date of application for an OSE supported application, or day 22 of a PE supported application. This seems yet another anti-competitive act, for an agency which continues to offer subsidized services in direct competition with other license professionals.

Why is the public being saddled with delays or denials of it's vested right at the hands of the Governor of Virginia, the only executive branch responsibility at play?

On today's date (July 10, 2019) I am the agent for five (5) citizens who have paid a fee, and been delayed in obtaining their rightful permit under the statutory deadline of their vested rights. This seems highly irregular, and cause for concern to every citizen of the Commonwealth; this also seems an issue worthy of the attention of the Attorney General, or the Inspector General, for this also seems a breech of the public trust.

Witness Code of Virginia:

§ 32.1-163.5. Onsite sewage evaluations.

A. Notwithstanding other provisions of this chapter, for purposes of subdivision review, permit approval, and issuance of letters for residential development, the Board, Commissioner, and Department of Health shall accept private site evaluations and designs, in compliance with the Board's regulations for septic systems and other onsite sewage systems, designed and certified by a licensed professional engineer, in consultation with a licensed onsite soil evaluator, or by a licensed onsite soil evaluator. The evaluations and designs included within such submissions shall be certified as complying with the Board's regulations implementing this chapter.

B. The Department shall not be required to perform a field check of private evaluations and designs prior to issuing the requested letter, permit or approval; however, the Department may conduct such review of the work and field analysis as deemed necessary to protect the public health and integrity of the Commonwealth's environment. Within 15 working days from the date of written submission of a request for approval of a site evaluation and design for a single lot construction permit, and within 60 days from the date of written submission of a request for approval of a site evaluation and design for multiple lot certification letters or subdivision review, the Department shall (i) issue the requested letter, permit or approval or (ii) set forth in writing the specific reasons for denial. If the Department fails to take action to approve or disapprove the designs, evaluations, or subdivision reviews within the time specified herein, the designs, evaluations or subdivision reviews shall be deemed approved and the appropriate letter, permit or approval shall be issued. Notwithstanding any other provision of law or the provisions of any local ordinance, counties, cities and towns shall comply with the time limits set forth in this subsection.

C. Nothing in this section shall authorize anyone other than an individual licensed as a professional engineer pursuant to Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 to engage in the practice of engineering.

D. The provisions of this section shall not apply to any locality that has entered into a contract with the Board of Health in accordance with Chapter 678 of the 1994 Acts of Assembly nor to a proprietary, pre-engineered septic system deemed by the Department to comply with the Board's regulations.

1999, c. 1038; 2001, c. 337; 2016, c. 90.

 

CommentID: 73473
 

7/10/19  9:54 pm
Commenter: public health

VDH explanation of fees
 

VDH spends a great deal of time lobbying public health without implementing achievable goals. 

 For an agency who collects approximately 20 percent of the administrative cost for an application,

the debt erodes any possibility of administering a public health program.   

 

"From:                                         Roadcap, Dwayne (VDH)

Sent:                                           Tuesday, September 13, 2011 7:33 AM

To:                                               Knapp, Allen (VDH)

Cc:                                               Hicks, Robert (VDH); Bowles, James (VDH); Bolling, Patrick (VDH)

Subject:                                     Update on HB 2185 Meetings

 

Allen,

 

At the Franklin and Washington County meetings, we heard some interesting thoughts, many of which I have included below.  I will be reviewing our notes soon but wanted to give you a quick glimpse of what we are hearing.  I could use a second travel partner this Thursday to Shenandoah County.  Patrick can’t make it because of the scheduled hearing next week.

 

Patrick, feel free to add or augment to the list of thoughts below. 

 

Notes in brief:

 

  1.  The majority of the private sector does not want to do any repair work (mandated or voluntary).

    1. Repair work has too much civil liability.
    2. Repair work is time and resource intensive (can’t make sufficient profit, can’t charge for the time it takes).
    3. Repair work is highly discretionary.  Everyone must use professional judgment to determine whether a particular design “complies as closely as possible” to the regulations.  The private sector can never know what the local health department’s reviewer considers adequate for their professional judgment.  Hence, it takes time to work through these issues and re-designs are frequently needed.
    4. Repair work has enforcement elements and private sector does not want to be the bad guy.  At a minimum to make it work, the private sector needs a license mandate to report failing sewage systems.

    5. One person (Tony Bible) in far SW suggested that some OSEs would be willing to do “pro-bono” work and that licensees should have a mandate to do a certain amount of repair work.  Others expressed concerns about how such a program would work and how that work could be tracked.

      1. Tony also reported that he prefers being a “second point of contact.”  If health department tells property owner they must have secondary treatment, then people come to him for that service.  If he were the first point of contact, then people would not trust the answer.

         

  2. There are not enough OSEs.

    1. In Tazwell, the county engineer reported a number of people were unhappy about the length of time to get a permit.  The county administrator thought adding private sector requirement would be helpful.  Brian Stanley reported that the primary problem was incomplete applications (e.g., people needed to mark property lines, mark house site, get private sector plans for AOSS).

    2. A phased in approach would not be sufficient to work.

      1. There is not enough OSE work demand and phasing in will not cure the root cause of no work = no OSEs around.

    3. In Franklin County:

      1.  OSEs prices for service would likely increase if the economy picked up and there were a mandate to use private sector.
      2. OSE work is not sufficient and prices for OSE work have fallen 25 percent.
      3. A board of supervisor candidate (running un-opposed) who self identified himself as a deep conservative said there is no competitive market in the Franklin area.  As an example, he noted the O&M requirements to have an AOSS inspected once per year.  He said that the cheapest person in the area was $500 per year—and that was for an annual inspection; it would cost extra to have any work done on the system.  Without an adequate, robost, and competitive market, then prices were monopolized and exhorbitant.

    4. In Washington County:

      1. People believe that VDH should allow conventional systems and go back to policies in place in 1982.
      2. Some believe the local health department should do AOSS, COSS, and new construction applications.  There is no need to have the private sector involved.  There is not a competitive market for those services in the private sector.

      3. The Indoor Plumbing Rehab (IPR) program fixes about 22 -40 homes per year for peoplewho do not have a bathroom and need a structure replacement.  These people routinely get ATUs and cannot afford the O&M costs.  Failures of ATUs creates a greater public health threat than a conventional system failing.  At least with conventional systems, it’s under the ground.  Several people working in this type of work felt that they would be “rehabbing the rehabs” because of the requirement for treatment and the inability to pay for O&M.

         

  3. Fees are a problem.

    1. Present fees have ended speculation.  Most people only apply when they are ready to build.  Reduce fees and more income would follow.
    2. Fees are hurting the lower incomes.  Fees should be scaled to income or be a percentage of the dollar cost of the work (sort of like how much local governments charge for building permits).
    3. People feel they are being double and triple charged….they pay general taxes to support health department; health department charges a fee for services; and then health department requires people to seek help from private sector which is a third charge.
    4. The $725 fee for a well/septic permit is outrageous given the cost of the work being performed ($725 for $3,000 to $8,000 of work).
    5. The increased fees has caused people to preferentially seek health department services.  It costs an extra $500 to $800 to go see someone in the private sector because of the fees.  The health department’s fees should not charge a $200 difference between a “bare” application and “application with supporting work.”  It places $200 value on private sector work.
    6. The OSE community in Franklin believes fees are primary driver and a change in fees would create an atmosphere whereby people would voluntarily go to the private sector.
    7. If the health department only worked on repairs and indigent cases, then VDH would not have a sufficient revenue stream to support its needed local programs.
    8. Franklin county is a pro-growth community and fees are a hindrance to a beaten down housing market.

    9. The EH fees support another series of services for the community (e.g., complaint investigations, rabies, vaccinations, etc.).  If the fees are taken away or reduced, then replacement funding is needed.

       

  4. VDH must keep oversight and control of the private sector so “bad actors” are promptly removed and owners required “to do the right thing.”  (Enforcement issues)

     

    1. The Franklin County meeting focused on this topic---not any of this in Washington:

      1. Homeowners must be required to properly operate and maintain all sewage systems---COSS and AOSS.
      2. Licensees must be required to report failing sewage systems.
      3. VDH should focus on O&M instead with extra time if it is no longer doing site and soil evals and designs.
    2. Health Department in Brian Stanley’s area will do subdivisions up to five (5) lots.  Some report that the local health departments are very lenient in their interpretations and do more than is needed.  Health departments make decisions that private sector cannot make.  This is keeping the private sector guys in a quandary. 
    3. The private sector, being more cautious (or inept)—as one views the issue--will design AOSS when a COSS is acceptable."

 

CommentID: 73474
 

7/10/19  10:56 pm
Commenter: General Assembly of Virginia

good help is hard to find... fire them all.
 
[H 558]
Approved March 11, 2016

 

Be it enacted by the General Assembly of Virginia:

1. § 1. That the State Health Commissioner (the Commissioner) shall develop a plan for the orderly reduction and elimination of evaluation and design services by the Department of Health (the Department) for onsite sewage systems and private wells. The plan shall provide for the protection of public health as the Department transitions to accepting only applications that are supported with private site evaluations and designs from a licensed professional engineer or licensed onsite soil evaluator or, for any work subject to regulations governing private wells in the Commonwealth, by a licensed water well system provider.

The plan shall include (i) provisions related to transparency of costs for services provided by the private sector, including options available, necessary disclosures for cost of installation and operation and maintenance, and recommendations to resolve disputes that might arise from private sector designs, warranties, or installations; (ii) a date by which all site evaluations and designs will be performed by the private sector; (iii) a transition timeline to incrementally eliminate site evaluations and designs provided by the Department to fully transition all such services to the private sector; (iv) procedures and minimum requirements for the Department's review of private evaluations and designs; (v) a timeline to incrementally require private evaluations and designs for certain categories of services such as applications for subdivision review, certification letters, voluntary upgrades, repairs, submissions previously accompanied by private sector work, new construction, and reviews pursuant to § 32.1-165 of the Code of Virginia; (vi) a recommendation concerning whether the Department can reduce or eliminate services in a particular area on the basis of the number and availability of licensed private-sector professional engineers and onsite soil evaluators and licensed water well system providers to provide services in that particular area; (vii) necessary changes to application fees in order to encourage private sector evaluations and designs and projected schedules for those changes; (viii) a recommendation concerning the need to establish a fund to assist income-eligible citizens with repairing failing onsite sewage systems and private wells; (ix) provisions for disclosing to the consumer that an option to install a conventional onsite sewage system exists in the event that an evaluator or designer specifies an alternative onsite sewage system where the site conditions will allow a conventional system to be installed; (x) provisions for involvement by the Department in resolving disputes that may arise between the consumer and the private sector service providers related to evaluations or designs of onsite sewage systems and private wells; (xi) provisions for the continued provision of evaluation and design services by the Department in areas that are underserved by the private sector; (xii) necessary improvements in other services performed by the Department that may derive from the transition to private evaluations and designs, including programmatic oversight; inspections; review procedures; data collection, analysis, and dissemination; quality assurance; environmental health surveillance and enforcement; timely correction of failing onsite sewage systems and determination of reasons for failure; operation and maintenance; health impacts related to onsite sewage systems; and water quality, including impacts of onsite sewage systems on the Chesapeake Bay; (xiii) an analysis of the ranges of costs to the consumer for evaluation and design services currently charged by the Department and ranges of the potential costs to the consumer for such services if provided by the private sector, and (xiv) legislative, regulatory, or policy changes necessary to implement the plan.

The Commissioner shall present an interim report or the completed plan and recommendations to the Governor and the General Assembly by November 15, 2016.

CommentID: 73485
 

7/10/19  11:01 pm
Commenter: Lance

EHS positions eliminated... staff would move to underserved areas
 

From: Roadcap, Dwayne (VDH) Sent: Monday, September 19, 2011 7:45 PM To: Knapp, Allen (VDH); Bowles, James (VDH); Bolling, Patrick (VDH) Cc: Hicks, Robert (VDH) Subject: FW: HB 2185 FYI From: Gregory, Lance (VDH) Sent: Monday, September 19, 2011 4:31 PM To: Roadcap, Dwayne (VDH) Subject: HB 2185 Dwayne, I have a tendency to speak out of turn or talk too much so I try to hold back on my two cents on this issue today. I thought I’d just put it in a email and let everyone else speak. I think we should privatize the onsite evaluations and designs for all paid applications (new construction, expansion, modification, subdivision, etc.). I don’t think this would have much of an impact on the cost of services from onsite professionals, at least not in our area. They will still be competing for services in a down economy, and 50% to 60% of these services are already completed by OSE’s/PE’s in our area. I think VDH staff should still be responsible for reviewing and approving these designs. County officials perform and in-house review of every building permit, plan review, zoning case that comes through the door. I think we should do the same, 100% Level I review. As for Level II reviews I think 100% is excessive (unless stipulated by county ordinance). OSE’s and PE’s are licensed, and we do need to respect that licensure. However, there should be some level of field review to keep them honest and because soil evaluation and design is so subjective. I believe that OEHS should put together a OSE/PE review policy and provide training on that policy to all EHS’s. Because of the subjective nature of what we do you will never get complete uniformity throughout the state, but if the review is based on a set standard it should at least be close district to district. I think all repairs….. is an issue above my pay grade. I’d like to see them taken over by the private sector, but I fear that if people have to pay for that service they will either let the issue persist until we take enforcement action or they will repair the system illegally. I really think the OSE’s and PE’s need to step up here. If we are willing to back this proposal and give them a 50% increase or so in work, the least they can do is come up with some alternative ideas for cost effective repair permitting. My last thought on this issue is VDH should complete an internal audit of how these changes will effect staffing needs. If we eliminate a large portion of direct services it stands to reason that some portion of staffing may be eliminated. Chesterfield has keep a detailed timesheet over the last 3 years to determine the amount of time spent on the services we provide. The average bare combination permit takes approximately 5 hours to complete, not including paperwork which is about another hour, so approximately 6 hours total. The average OSE permit receiving only a level I review takes 1.5 hours, and the average OSE permit receiving a level II review takes 2.5 hours. Using 2010 numbers for Chesterfield, if every application (repairs not included) were completed by an OSE/PE and only 10% level II’s were completed, it would free up approximately 550 man hours from our EH staff. I had calculated that 97.49% of our EHS time was accounted for in 2010, so with this reduction in direct services that number would fall to 91.81%. I think our staff could make up for that time by increasing the amount of time spent on Legacy documentation, our proposed GIS mapping program, public education, and the additional duties necessary in Operation and Maintenance of AOSS. The point being I believe a reduction in Chesterfield Health District staff would be detrimental to our goals as a department. That being said I think all districts should provide some data to show how these changes would affect the demands on their staffing. We may find that some districts would be understaffed. would be overstaffed, while others are and To put it bluntly, if some EHS positions are eliminated then maybe those staff would move to underserved areas to provide OSE services, or not. Anyway, that’s my 2 cent. Sincerely, Lance Thanks again for coming out.

CommentID: 73489
 

7/10/19  11:30 pm
Commenter: Jeff Walker, Past president of VAPSS

VDH unmanageable conflicts of interest
 

From: Hazel, Bill (GOV) [mailto:Bill.Hazel@governor.virginia.gov]
Sent: Tuesday, April 21, 2015 3:39 PM
To: Jeff T. Walker
Subject: RE: VAPSS FW: Roadcap "VDH-DPOR Routine Gathering"

 

Mr. Walker,

 I had a long meeting this afternoon with the commissioner and her staff in this area. Several actions will occur and I will meet with them again in June.

 

One action is that the commissioner will meet with her counterpart at DPOR to decide who should be responsible for addressing installation by unlicensed contractors. If they are unable to come to agreement, I will ask the Secretary of Commerce and Trade who oversees DPOR to sit with me and the two agency heads to find a workable strategy. At best, one agency will need to develop regulations to accomplish this. VDH correctly observes that the regulations that need enforcing are those of the licensing agency. It is not normally where they would operate. This will not be quick so I request that you give us some time to find a solution.

 

Another area that we agree needs to be addressed is the conflict of interest issue whether perceived or real or both. Given the political and budget environment, I suspect that VDH will continue to have some involvement in evaluation and design regardless of their desire one way or the other. I gather that the SHIFT process ended with a strong stalemate. I have asked however to get some options as to how that can be minimized and separated from the inspection and permitting processes. I do think that this ultimately require a legislative action and at least will impact the budget.

 

I have reviewed the message from VDH to DPOR that you provided with this group. It appears that  most of this was an attempt to get some clarification about the rules so that VDH policies would be consistent with the DPOR regulations. I recognize that you are more concerned about an inappropriate pattern of activity.

 

I recognize that you and other parties with different perspectives are very interested in the outcome. Please give us the time and space to have a good internal discussion of this.

 

Bill Hazel, MD

Secretary of Health and Human Resources

1111 E Broad Street

4th Floor

Richmond, VA 23219

 

From: Jeff T. Walker
Sent: Monday, April 20, 2015 7:19 AM
To: Hazel, Bill (GOV)
Subject: VAPSS FW: Roadcap "VDH-DPOR Routine Gathering"

 

Dr. Hazel; since our meeting on April 9th we have discovered that the office of Environmental Health has been lobbying the staff of DPOR to alter or interpret the regulations governing onsite system design to favor VDH’s staff continuing the practice of engineering without a license.

 

Please consider the following e-mail exchange between Director of the Onsite Sewer and Water and the regulatory staff at Commerce and Trade reviewing the regulations. I obtained the appended document April 14, 2015 through FOIA responses provided by Mr. Roadcap.

 

The limits of engineering practice are codified, definitions of practice, requirements for license, responsibility and ethics equally apply to all licensed OSE/PE. Engineering practices must respect intellectual property rights and statutory constructs of our duties. In Virginia under current law only a PE or OSE may design water wells, or septic systems.

 

We have discussed the dangers of your staff’s competitive interests influencing development of regulations, policy and practices necessary for preservation of public health, safety, and welfare. This charge does not require the design of systems to improve real property, design should be separated from the regulatory duties. Indeed there is no “right” to septic systems, sites vary in their natural properties which require judgment and engineering to determine and resolve within the regulation.

 

I offer excerpts from applicable statute:

§ 54.1-402. Further exemptions from license requirements for architects, professional engineers, and land surveyors.

A. No license as an architect or professional engineer shall be required pursuant to § 54.1-406 for persons who prepare plans, specifications, documents and designs for the following, provided any such plans, specifications, documents or designs bear the name and address of the author and his occupation...

 

Influencing the interpretation or regulatory review ought to be conducted in a public fashion, and in support of the public’s interest- not a private interest accruing to competitive interests of the VDH or it’s staff.

 

Definitions of Wastewater Characterization are codified, Dr. Degen, Technical Services Director and Mr. Roadcap have both attempted to alter regulation or policy interpretation under jurisdiction of DPOR, however their petitions to the APELSCIDLA were rejected. As you know Mr. Knapp stated VDH would remove the competitive influence, however he has made no progress and the PE/OSE workgroup has not met since.

 

"Residential wastewater" means sewage (i) generated by residential or accessory uses, not containing storm water or industrial influent, and having no other toxic, or hazardous constituents not routinely found in residential wastewater flows, or (ii) as certified by a professional engineer.

 

"Improvements to real property" means any valuable addition or amelioration made to land and generally whatever is erected on or affixed to land which is intended to enhance its value, beauty or utility, or adapt it to new or further purposes. Examples of improvements to real property include, but are not limited to, structures, buildings, machinery, equipment, electrical systems, mechanical systems, roads, and water and wastewater treatment and distribution systems.

 

License required does not permit a code official to design, however it does recognize that official does not require license to review and approve (permit) specifications.

§ 54.1-402.1. State and local government employees; license exemptions for persons employed prior to March 8, 1992.

§ 54.1-410. Other building laws not affected; duties of public officials.

 

Regarding inspections, license and certification:

12VAC5-610-320. Inspection and correction.

No part of any installation shall be covered with earth or used until inspected, corrections made if necessary, and approved, ...This section shall not apply to any sewage disposal system installation that is pursuant to a design certified by a licensed professional engineer or onsite soil evaluator.

12VAC5-610-330. ... signed inspection report stating that the construction work installation was completed substantially in accordance with the approved plans and specifications evaluation and design revised only in accordance with the provisions of 12VAC5-610-310. ... § 2.2-4019 of the Code of Virginia or 12VAC5-610-200 prior to rendering such decision.

B. Statement from the sewage disposal system contractor. Upon completion of the construction or modification of a sewage disposal system, ... plans and specifications approved for the project and substantially in accordance with Part V (12VAC5-610-660 et seq.) of this chapter.

 

18VAC160-20-74. License required

C. No individual shall act...

 

Dr. Hazel, when Mr. Roadcap told me he “has run out of answers” I never imagined that his charge was to alter the expectations of engineering under which we perform site evaluation and provide specifications for private development. Now we have absolute proof that his intent was not to comply, but to force the alteration of regulations or policy to favor the competitive advantage for the Virginia Department of Health. This influence has resulted in our call for the resignation of a Board member at WWWOOSSP, and a stern lecture by Jay DeBoer the Director regarding the importance of consensus and drafting of regulations which relieve these tensions.

The minutes of the State Board of Health reflect questions directed toward Mr. Hilbert regarding direct delivery of services. His response does not seem accurate, from which we infer the onsite program is suffering from a lack of honesty with it’s own governing board.

Removal of any competitive interest between regulation and design should be the first act toward ending the charade. If the General Assembly had intended for your staff to be exempt, or for the public to suffer substandard and unreliable services which put their property at risk surely this would be reflected in the statutory framework.

Based upon the language Mr. Roadcap chose in communicating with the DPOR staff we infer this is not the first discussion of altering the statute. We hope you will agree these measures have been a misdirection of the Agency’s resources, indeed the onsite program is in shambles, I can elaborate for your interest.

I look forward to your response, and hope that we can resolve this problem in the coming weeks.

Sincerely yours,

Jeff T. Walker, AOSE, LPSS, AOSI

Virginia Association of Professional Soil Scientists

540 239 9131

http://www.vapss.org/

 

 

·          

CommentID: 73497
 

7/10/19  11:33 pm
Commenter: finking about finding a jew job

cocerms
 

why would anyone allow those stinky cloverleaf guys?  If I have to allow everyone time to speak,then why have a meeting.  Oh, so you can had chose active pariticipants. 

"
From: Fincham, Scott (VDH)

Sent: Wednesday, September 07, 2011 3:22 PM

To: Bolling, Patrick (VDH); Roadcap, Dwayne (VDH)

Subject: RE:

Apparently these stakeholders meetings have got out, since I got a call from a local OSE requiring us to allow him to attend. Firm is Cloverleaf Env. Caller Rob indicated he talked to you Patrick.

I particularly picked folks that I thought would provide very useful feedback, which are the individuals I listed. If we have folks that want to participate this bad, do you have objections to allowing them to talk. It will be a longer interview ?

Maybe I will find a time for OSE’s to talk as a group? Thoughts. Never simple anymore.

Scott

Scott Fincham

Environmental Health Manager

Lord Fairfax Health District"

CommentID: 73500
 

7/10/19  11:39 pm
Commenter: jasper grimes

general notes
 

FOLLOWIG IS AN EXCERPT FROM THE JANUARY 29 wwwoossp BOARD MEETING.  JUMPING JON WAS ABLE TO GET THE HIGHLY SOUGHT AFTER MASTER OPERATOR FOR dANNA LYNNE REVIS.  THIS IS HOW CORRUPTION WORKS

In the matter of File Number 2019-00887, Danna Lynne Revis,             File Number 2019- the Board members reviewed the record which consisted of the                               00887, Danna Lynne application file, transcript, and exhibits from the Informal Fact-                                 Revis

Finding Conference, and the Presiding Officer' s Summary and

 

Virginia Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals January 29, 20 I9

Page 4

 

Recommendation .

 

Mr. Staples disclosed that he has worked with Ms. Revis at the Virginia Tech Short School, but stated he could be fair and impartial in his decision on the file.

 

John Ewing, Board member and Ms. Revis' employer, addressed the Board and spoke to Ms. Revis' reputation among onsite sewage system professionals. Mr. Ewing stated that Ms. Revis is known in the industry as the ultimate example of the profession. Mr. Ewing stated that Ms. Revis has worked with multiple agencies within the public and private sectors for many years and he has no doubt that Ms. Revis can perform the duties of a Master Alternative Onsite Sewage System Operator.

 

After addressing the Board, Mr. Ewing recused himself from the meeting for the discussion and deliberations on File Number 2019- 00887.

 

Ms. Revis was present to answer questions but did not address the Board.

 

 

Mr. Riggleman moved to accept the recommendation of the Presiding Officer and approve Ms. Revis' application for a Master Alternative Onsite Sewage System Operator license. Mr. Fore seconded the motion which was unanimously approved by: Evans, Fore, Lentz, Riggleman, and Staples.

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CommentID: 73501