|Action||Adopt new performance-based regulations pertaining to locating, designing, constructing and operating onsite sewage systems.|
|Comment Period||Ends 11/12/2008|
O&M does not make a bad site work
It appears the Virginia Department of Health (VDH) is shifting it's regulatory compliance focus from assuring that onsite systems are placed in suitable sites that will function properly to allowing onsite systems to be installed most anywhere and then monitoring to determine if they are functioning properly. While this may be the wish of stakeholders such as manufacturers, developers, builders, service providers, and a few private sector engineers, one might wonder if this is the wish of the most important stakeholder, the uninformed homeowner.
VDH has moved from a prescriptive regulation with numerous built-in safety factors to a performance based nightmare. Today's absorption areas can be 1/5 the size of what was previously allowed. In addition, VDH has decreased the minimum depth of non-restrictive soil from from 30 inches to 12 inches (i.e. from the ground surface).
One might conclude that in order to mitigate the loss of safety factors VDH would require a much more extensive site and soil evaluation in order to assure that the onsite system will function hydraulically in very sensitive, high risk receiving environments. However, this is not the case. VDH is going to adopt performance based regulations with no additional site and soil evaluation requirements. It appears that the new regulation will recognize high quality effluent and perpetual O&M as sufficient to overcome problematic sites.
Do we really want to permit sites that are doomed to fail hydraulically, especially when there is little or no accountability (i.e. the homeowner would have to sue the previous owner who would have to sue the builder who would have to sue the developer who would have to sue his AOSE/PE)?
The VDH should make every effort to assure that a system will not be permitted in an unsuitable site. Define system reliability class. Define sensitive, high risk receiving environments. Prescribe minimum site and soil evaluation requirements and buffers based on risk (and when the risk is high the evaluation should be extensive). Then, once a site is determined to be suitable beyond a reasonable doubt, prescribe O&M requirements. As a homeowner, I'd prefer to deal with problems on the front end of the process rather than the tail end (i.e. I don’t want a regulator on my doorstep every few months due to a continuous violation).
Doesn't it make more sense to assure site suitability BEFORE the system is permitted rather than dealing with a malfunction later? Perhaps a stakeholder group should be formed consisting of homeowners who are coping with the malfunction of their brand new systems. It would be interesting to hear how those individuals feel about onsite system designs in high risk receiving environments being based on limited and highly subjective site and soil evaluations with little or no accountability.
One last comment . . . Enforcement under the performance based regulations will be extremely difficult. Specialization will be a must (i.e. local personnel dedicated to enforcement issues only).
Need a fundamental change in regulatory approach NOT just an update of current regulations!
I am very encouraged to see the Board of Health (Board) take this bold step of proposing to repeal the current Sewage Handling and Disposal Regulations (SHDR) and to promulgate a new chapter the Onsite Regulations. It is time for a change, as the SHDR do not and cannot address the current increasing needs for using Land as the receiving environment for partially treated wastewater (effluent). Land offers a great alternative to surface water for discharging effluent from technical and economical viewpoints. The SHDR are written primarily for regulating use of septic tank drain field systems without responsible management. Times have changed, and Virginians now have access not only to advanced technologies for onsite wastewater treatment and effluent dispersal, but also to a responsible management infrastructure for ongoing operation and maintenance of these technologies in a manner similar to what is done for centralized collection and treatment systems, also known as sewer systems. Thus, it is now possible for Virginians to consider use of Onsite Systems as a true alternative to Sewer Systems. Since the difference between use of inadequately managed septic systems and responsibly managed advanced onsite systems is significant, the changes needed in regulatory program (not just regulations) must be equally significant in order to allow the Virginians to be able to use today’s Onsite Systems in an cost-effective and environmentally sound manner. The Board's proposal suggests that the planned regulatory action WILL "update and re-incorporate much of the current SHDR" that makes me wonder if this action can make the changes that are really needed today in the regulatory program. I would suggest that the Board do not just update and definitely do not re-incorporate any of the SHDR, but do consider a fundamental change in the regulatory approach and develop a regulatory program that does the following: (a) clearly define a method to allocate capacity to a piece of land (not just drain field) for assimilating effluent load, both hydraulic and waste load, strictly based on parameters that are easy to understand, and are quantifiable/measurable using easily available tools, (b) clearly define performance expectations for all onsite systems in measurable terms; (c) clearly specify approaches/methods by which the Board will determine if those expectations are met or not met by the permitted onsite systems; and (d) clearly specify the consequences, to the owners of the onsite systems and to the practitioners who provide services to the owners, of meeting and not meeting the performance expectations. The current SHDR attempts to do these items based on approaches that are old and not suitable for the current times, neither from a technical viewpoint nor from an infrastructure management view point. Thus, I strongly encourage the Board to abandon completely the SHDR and start from ground zero for development of the newly proposed regulations for decentralized sustainable wastewater infrastructure. Having worked in the agency at the state level for twelve years, I have gained some understanding of how the current regulatory program works and the challenges associated with making any changes let alone significant changes. But, as we all know, we cannot expect different results from doing things in a same old way, or by attempting to make significant changes one small step taken once every ten years. It is possible for the Board to propose significant changes to the current regulatory frame-work and with appropriate educational approaches, the Board will be able to adapt the new totally different approach for regulating use of onsite systems in the 21st Century. I am ready to volunteer some of my time for this efforts and I am sure that many practitioners who are serious about their work and services they offer to Virginians would do the same. Together, public and private partnership, we will be able to make progress necessary for changing the onsite system regulatory program in Virginia. Thank you.
Comments concerning 12 VAC 5-11
In a comprehensive re-write of rules & standards it is important to: ---not repeat the errors of the past; ---learn from past knowledge; ---base rules on fact, not perceived assumptions or emotions. As representing the National Society of Consulting Soil Scientists (NSCSS) and over 30 years of professional soils consulting in the waste treatment / land application field, we are quite perplexed that the one profession with the most expertise of critical soil / site paramenters and soil/water relationships is totally ignored in the re-write of this Va rule? When most land application rules were significantly changed to be a soils based format in the 1970's, waste treatment system failure rates drastically declined and have steadily improved to present. The proposed rule also appears to give the engineering profession the ability and authority to evaluate and interprete soils and potential waste treatment sites, which is very regressive to the pre-1970's era. This also totally ignores and likely creates a direct line of conflict between these established Va professions as to abiltities by education, training, and experience.
The concept of having "prescriptive" and "performance" based rules is positive. ASTM, NSF, ANSI, and EPA standards now provide a good national format for waste treatment "prescriptive" rules to be applied at the State level. The State should strengthen these prescriptive standards to match their specific geographic needs. If alternative or highly engineered systems are considered then "performance" based rules should be implemented, with the caveat that the best recognized professionals are utilized within their respective fields to properly locate, size, and be responsible for their respective works. There are many pre-engineered alternative pretreament systems within the market place that did not even a decade ago. These alternative pretreatment systems still have specific soil & siteing requirements that should be properly evaluated, rather than indescriminantly located by prescriptive engineering guess work.
Additionally the pre-engineered system's manufacturer is ultimately held responsible for their system's success and operating within its' design specifications. These systems should not be indescriminatly located by engineering guess work, as the manufacturers product reputation and liability is held in jeopardy.
A comprehensive re-write of VA on-site waste treatment rules can be an improvement in protecting the health standards and protecting the public's health & welfare. If done without considering and learning from the past, or injecting special agenda demands, then unintended consequences will result and improvements not realized.
Larry F. Baldwin, CPSS/Sc 2008-President National Society of Consulting Soil Scientists & CSSC Director.
Virginia Certified Professional Soil Scientists
In the proposed revisions, it appears that Virginia Certified Professional Soil Scientists, as recognized by the Commonwealth of Virginia, have been left out of the language related to evaluating soils for wastewater disposal. There is no other professional better suited to identifying areas for wastewater disposal to protect the public health and environmental quality.
Ian R. Kaufman, CPSS/SC, VaCPSS (#000231)
Senior Soil Scientist
Geo-Technology Assocites, Inc.
Agree with Larry Baldwin
I would like to agree with all the information posted by Larry Baldwin. It is discouraging that organizations on the national level see what a potential health and environmental hazard these new actions can cause if the soils are not properly and professionally evaluated by a trained and, yes, certified individual. The Commonwealth of Virginia has many Certified Professional Soil Scientists that have specific knowledge, skills and abilities to perform the investigations necessary to determine if the site, whether it be receiving effluent from a conventional or alternative system, is adequate. Regardless of the system, the effluent must enter the environment via the soil. The stakeholders involved in this process at one time included members of the Virginia Association of Professional Soil Scientist, however, they have now been excluded. A P.E. should be designing an appropriate system, based on the soil evaluation from a qualified individual, i.e. a CPSS. Furthermore, the following justification is only one perspective:
"The most likely direct impact of the new regulation on families in the Commonwealth would be economic. Performance standards, most notably the nitrogen standard, have the potential to increase the costs of constructing and operating an onsite system. These cost increases will be felt by individual families. However, the costs need to be weighed against the benefits of improved health protection and cleaner ground and surface waters. Families benefit in many ways, directly and indirectly, from cleaner ground and surface waters- fewer gastrointestinal illnesses related to contaminated water, improved economic opportunity, and esthetic and recreational opportunities. The Commonwealth has seen great growth in the number of private-sector individuals practicing in the onsite sewage industry. Many of these AOSEs, PEs, installers, and maintenance providers operate small business and family-run business. The agency anticipates that the proposed regulation will improve things for the private sector by bringing some clarity to the requirements for the design, location, and construction of alternative systems. In addition, the new requirements for operation and maintenance of alternative systems should provide expanded business opportunities for these small and family-run operations."
"The most likely direct impact of the new regulation on families in the Commonwealth would be economic. Performance standards, most notably the nitrogen standard, have the potential to increase the costs of constructing and operating an onsite system. These cost increases will be felt by individual families. However, the costs need to be weighed against the benefits of improved health protection and cleaner ground and surface waters. Families benefit in many ways, directly and indirectly, from cleaner ground and surface waters- fewer gastrointestinal illnesses related to contaminated water, improved economic opportunity, and esthetic and recreational opportunities.
The Commonwealth has seen great growth in the number of private-sector individuals practicing in the onsite sewage industry. Many of these AOSEs, PEs, installers, and maintenance providers operate small business and family-run business. The agency anticipates that the proposed regulation will improve things for the private sector by bringing some clarity to the requirements for the design, location, and construction of alternative systems. In addition, the new requirements for operation and maintenance of alternative systems should provide expanded business opportunities for these small and family-run operations."
The increased hazard to families of the Commonwealth from individuals to properly evaluating soil and site characteristics could be severe. As Mr. Baldwin stated in his comment, this is a regression to pre-1070's.
Additionally, more people enter the onsite sewage industry due to no requirements for a specific knowledge and ability for soil and site evaluation, putting many long time small businesses and family-run businesses at risk. The opportunities for operation and maintenance of the alternative systems is necessary and is a good opportunity for additional businesses, but the soil and site evaluation for the alternative systems should lie soley on those individuals recognized by the Department of Professional and Occupational Regulation as having the specific knowledge, training, education and abilities, the Certified Professional Soil Scientists.
12 VAC 5-611 NOIRA /
Premier Tech Environment ("PTE") generally supports the proposed effort (NOIRA 12 VAC 5-611) to improve upon the current onsite rules found in 12 VAC 5-610 et seq. ("current rules"), but with some caveats and concerns. First and foremost, the new rule development process must be transparent and fair for all stakeholders, not only to comply with rulemaking and other legal requirements, but in order for the resulting rules and policies to carefully balance competing interests and achieve some level of consensus or consent from the regulated community. Second, the current rules and associated “gmp” documents, as dated or imperfect as they may be, are still valuable benchmarks and cannot be ignored; they must be used to help inform the content of the new rules. Third, specifically with regard to the referenced policy of engineer proposals without prescriptive limitations, where only performance standards will apply, there must be meaningful scrutiny of such designs and some level of consistency and uniformity with other applicable onsite standards of review, performance and approval. To the extent that the current NOIRA for 12 VAC 5-611 constitutes anything more than an invitation for input and comment on the general idea of promulgating new rules, i.e., to the extent that this NOIRA will be cited as setting any type of legal precedent or supporting certain specific policies expressed therein, there has been insufficient time and opportunity allowed for stakeholder involvement, especially as there is no specific text to consider for such policies. PTE looks forward to working together with all stakeholders and regulatory officials in developing up to date and improved onsite wastewater rules for the Commonwealth of Virginia.
Why are so many systems failing?
The NOIRA states, "adopt new performance based regulations pertaining to LOCATING, designing, constructing and operating onsite sewage systems".
In the past several years it seems as though there has been a significant increase in the number of new system malfunctions (Loudoun County for example). Most of these systems are reportedly alternative type systems. What is causing this increase in failures for brand new systems?
Is it a poor design? If so, the performance based regulation should contain enough prescription to adequately guide the designer. The current regulations and GMPs have failed in the regard.
Is it poor construction? Probably not, but maybe. Poor construction on alternative system sites is probably less forgiving than poor construction on conventional system sites. This should be considered when drafting the new regulation.
Is it poor operation or poor maintenance? Not likely for newly installed systems. What type of maintenance could prevent a 6 month old system from failing? Maintenance is obviously very important but it's not going to fix a new system.
Is it a poor site and soil evaluation? This is probably the culprit. I hope the new regulation will contain adequate evaluation requirements.
I also hope that there will be severe penalties for practitioners who screw up.
Noone knows soil better than a Soil Scientist
I was among those Professional Soil Scientists who took their unpaid time to discuss with the VDH personnel the differences between shale fragments versus sandstone, limestone or other types of rock fragments and why some of them were not suitable. The determination of the type of rock fragments and what quantities of such constituted an unsuitable site stymied the progress of how to use the site. When the soils part of the equation was added to the consideration of how soil water or sewage moved through the soils/rock fragments, discussions where suspended. It seems that that three dimensional, unique training Soil Scientists have can only be appreciated by those of us in the Natural Sciences.
Noone will ever know Soil Science better than Soil Scientists. Our training combines Soils, Microbiology, Biology, Chemistry, Physics, Math, Geology, Botany, Patterns of Nature, Hydrology, Agriculture, Biochemistry, Erosion probability, Natural and Artificial Landscapes and how to put all that together for Interpretation and Use of a site for any purpose.
Waste management and waste treatment in soils are just other applications of Soil Science that require Soil Scientists. Noone else can adequately understand the before or after consequences of misusing a soil. A wrong diagnosis and wrong prescription of land use destroy the health of a soil.To protect the Health, Welfare and Safety of our citizens of the Commonwealth, as many of us have sworn to do, is to protect our Soils, as well. Do not treat Soil like dirt- Consult a Professional Soil Scientist.
Nan Gray, MSc
Certified Professional Soil Scientist
I applaud the Department in acting on the topics discussed in the "footprint forum" it seems a critical time to incorporate the relevant discussions and concerns of the participants into revisions of the Code.
I would like to register my concern that the Department seems to believe that an Engineered solution to the reduction of organic load or the dispersal of treated wastewaters into the soil precludes the necessity of understanding or predicting the effect of such wastewaters on the soil "receiving environment." I would like to remind the governing authority that there exists a body of scientists that make a practice of studying and applying our understanding of soils to the tertiary treatment and dispersal of wastewaters as well as other applications for the soil medium. I refer to the Certified Professional Soil Scientist, regulated under DPOR, this practice is complemented by the on-site design training afforded those credentialed as AOSE. As these professions move toward integration under legislation approved this year I hope the Departments will recognize the importance of these professions to the homeowners, developers and communities that rely on septic systems to provide economical and efficient waste disposal. It is appropriate to emphasize that soil is the medium best suited to renovating wastes, and that soil scientists are best qualified to predict the suitability of a particular environment to be utilized for this purpose.
I also am pleased to see the integration of current affairs into the revisions due on the Code. An example may be the writing of regulations for the disposal of "special wastes" such as peat filter media, I believe that there should be efforts to treat and dispose of this material on site, to avoid the transportation and handling costs; it is not difficult to imagine the permitting of onsite disposal under a short term permit to sequester these wastes until the biological materials have been rendered harmless by natural aerobic process.
Another example concerns the re-use of water or gray-water as an irrigant or for non potable domestic purposes. The Department in cooperation with other agencies concerned with land and water use should make a concerted effort to encourage the conservation of water for as we have seen in these times of drought we have made an unfortunate policy of routing water away from the storage vessels of the aquifer and vadose zone.
This seems an appropriate forum to call for the publication of research and case histories conducted on experimental and alternative systems by the Department, in cooperation with Virginia Tech, and the Contract Soil Scientists. This information as well as the experiences with repairs to failing systems should become part of On-site training and available in a technology library or publications which the onsite practioners should have access to. Indeed as a public agency it seems unusual that such a database would not be available to the public.
Jeff T. Walker; CPSS/AOSE