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.