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
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