As an owner of a small business that provides wastewater treatment in the Commonwealth of Virginia, I urge a review and revision of the Regulations for Alternative Onsite Sewage Systems (12 VAC 5-613).  There are conflicts and inconsistencies with GMPs and the guidance communicated by the Onsite Division staff.
I believe that the AOSS regulations enacted on December 7, 2011 made a significant departure from the Emergency Regulations published on June 3, 2010 without adequate public comment.
In 2009, the General Assembly directed VDH to adopt emergency regulations to address three issues pertaining to the AOSS (alternative onsite sewage systems) regulations:  Performance, Horizontal Distances and Operations and Maintenance. Although the Emergency Regulations were considered interim, they did establish a framework to supplement the Sewage Handling and Disposal regulations (12VC 5-610-20)
The goal of the Emergency Regulations was to protect public health and the environment by establishing a performance requirement and ensuring that all AOSS are operated in accordance with those regulations.  Any systems, AOSS or conventional, that were failing or malfunctioning in ways that threaten public health and the environment were to be the priority.  While the basic Sewage Handing and Disposal Regulations did not  address performance and O&M, there was in place GMP 147 that established  a path for  approval of TL2 and TL-3 AOSS  systems based on performance.  The Division offered two options to AOSS manufactures:  in state testing  or submission of performance data from testing protocols other than Virginia.  We have not been informed that there have been any health or environmental issues with the TL-3 systems installed per GMP 147.
 

 The Emergency Regulations did implement a requirement that every AOSS, whether TL2 or TL3 had to be tested via a BOD effluent sample within the first 180 days of operation and thereafter, every five years for systems with “general approval”. Presumably the laboratory data was to be collected  by the VDH Onsite Division and analyzed to identify failing or malfunctioning systems that could endanger public health or the environment.  As a local distributor for an AOSS manufacturer, I have never received notice that any of the 400 + AOSS systems installed since the enactment of the Emergency Regulations have impacted public health or the environment..  Whenever we have attempted to obtain the 180 day data, we have had to file FOIA requests at county or state levels to obtain even partial data.  The 180 effluent sampling adds to the cost of a homeowners’ O&M program with apparently very little benefit to either the homeowner to make corrections to their AOSS and/or protect public health.  The requirement itself is ambiguous since it is possible to take an effluent sample on day-one of the system being put into operation.  The performance grab sample has not been used as an effective tool that justifies the cost to the homeowner.

In a review of the AOSS regulations there needs to be an in depth review of the success/failure of the O&M program during its first four years with emphasis on a cost analysis and benefits to both the homeowner and the Commonwealth. As with any business, supply and demand drives the price of a product or service.  As of this writing, the AOSS operators list has only 59 licensed operators statewide.  Homeowners tend to ignore the O&M requirement because of cost and availability of a licensed operator.  The AOSS regulation review should include a survey of homeowners regarding their experiences with O&M providers to include the cost of the annual inspection and the responsiveness of the O&M provider.  The survey will be key in moving toward a reasonable program to identify violations and enforcement. There needs to be a better path in the DPOR licensing program.
 
12VAC 5-613-70 stated that the division “shall develop a protocol to verify expected performance of small AOSS treatment units..”  The requirement that performance data must be from systems installed in the Commonwealth of Virginia was a significant departure from the Emergency Regulations and GMP 147.  I can’t recall a mandate from the stakeholder meetings to accept only in-state data.  Later, the Onsite Division said that out-of-state data could be considered, but that was part of an intended revision to GMP 147 that was drafted, distributed for comment but never signed.  As the Virginia distributor for a TL-3 AOSS, I am not certain as to the authority of a GMP that is still in revision.
 
A further complication of the AOSS regulation is the requirement for 50% total nitrogen reduction for systems in the Chesapeake Bay watershed. The performance requirement is not part of the in-state testing of 20 systems. Separate from the AOSS regulation is GMP 156 and subsequent Division guidance that there may be a requirement for instate testing of as many as 12 systems to meet an EPA inter-state requirement.  We have asked if any nitrogen testing could be done concurrent with AOSS testing.  We would not want to engage in a nitrogen testing program without assurance that it will meet the eventual EPA mandate. 

The Onsite Division, in creating the AOSS regulations did not give appropriate consideration to the financial impact of an in-state testing program that replicates testing done in other states, and internationally.  The third-party protocol, without nitrogen testing, will cost AOSS manufacturers and their distributors a minimum of $50,000.00 to produce  data already available from other sources.  It’s a business expense that will be passed on to property owners who have to have an AOSS.  Without including a definitive nitrogen testing program, the cost of separate follow-on testing, at a later date could double.
 
The Sewage Handing Advisory Committee voted on and sent a letter to the Commissioner of Health pointing out the significant cost of third-party in-state testing that does not further the performance data already available . The AOSS manufactures have already invested heavily in other testing programs.  The VDH assumption is Virginia’s wastewater is somehow different that that of New England, Florida or other regions.  The point can be made that the health department does not require in-state testing of prescription pharmaceuticals or health appliances.  The SHADAC ‘s letter has been ignored by the Commissioner.

 To summarize, a revision of the AOSS regulation is needed. There are requirements in the regulation that should be reviewed and improved with the knowledge and data collected since the Emergency Regulations were adopted.  There are significant ambiguities with GMP 147 (and the proposed revisions that were never signed) and GMP 156.    I ask that the requirement for third-party in-state testing be waived until the AOSS regulation is reviewed and revised.