Beginning in 2009, Bio-Microbics has been listed as “Evaluation Complete” or approved for GMP 147 for TL-3.  Bio-Microbics has participated with the VDH in the development of the Emergency Regulations of 2010 and the current regulations 12VAC5-613 effective since 2011.  Bio-Microbics has further assured that our Distributor, Dealers, Installers and Service Providers have followed these Regulations since 2011 and know of no negative health or environmental impact, or formal complaint from VDH on any of the 400+ installations over this time period.

12VAC5-613-30.L states that the approvals Bio-Microbics received for TL-3 of 2009 are effective for 5 years from December 7, 2011, or up till December 7, 2016.  The process for re-evaluation is covered in 12VAC5-613-70, which states that the division (VDH) shall develop a protocol to verify the performance.  However, when one looks for the testing requirements for GMP 147, the 2009 testing procedures are all that can be found on the VDH website.  There have been discussions and drafts of a new GMP 147 testing protocol, but this new testing protocol has not been approved.  Field testing is a very expensive proposition for both a manufacturer and its Virginia Distributor and Dealers.  Without a formally approved testing protocol for GMP 147, it is not a safe investment to make knowing that this can be changed by VDH at any time.

In addition VDH issued a Guidance Memorandum and Policy 156 in December of 2013 for nitrogen reduction in the Chesapeake Bay Watershed. BMP#5 of this GMP requires field testing for all GMP 147 TL-3 systems for nitrogen reduction. This GMP further states that a new listing procedure to develop this field testing would be completed no later than June 7, 2014. To our knowledge no field testing procedure for GMP 156 has been approved by VDH.  Again the economic impact of this is substantial for both a manufacturer and its Virginia Distributor and Dealers. In order to obtain the most value for money expended for field testing, it would make sense to test for both GMP 147 and 156 at the same time. 

The lack of any VDH approved testing protocol does not make it feasible to expend substantial amounts of money and resources without knowing that the testing procedures suggested by the VDH are approved.  Based upon the facts as we see them, the December 7, 2016 deadline for 12VAC5-613-30.L is impractical and cannot be met by any manufacturer. This would make the use of any previously approved TL-3 system unavailable for use in the protection of the environment.  In contrast, every MicroFAST® system that has been installed in Virginia reduces nitrogen by 50% or more.  So the economic and environmental impact upon the Commonwealth of Virginia would be devastating.  For this reason we are requesting that the VDH modify 12VAC5-613 to account for the lack of any approved direction for field testing so that existing systems approved for TL-3 be “grandfather in” or a new deadline be established only after testing protocols are approved.