Title of Regulation: 12VAC5-613. Emergency Regulations for Alternative Onsite Sewage Systems (adding 12VAC5-613-10 through 12VAC5-613-180).

Statutory Authority: § 32.1-164 of the Code of Virginia; Chapter 220 of the 2009 Acts of Assembly.

Effective Dates: April 7, 2010, through April 6, 2011.

Agency Contact: Allen Knapp, Director, Division of Onsite Sewage, Water Services, Environmental Engineering, and Marina Programs, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7470, or email allen.knapp@vdh.virginia.gov.

Preamble:

The regulations establish performance, operation, and monitoring requirements and horizontal setbacks for alternative onsite sewage systems (AOSS) necessary to protect public health and the environment. The new regulations are supplemental to existing 12VAC5-610, Sewage Handling and Disposal Regulations (SHDR), which contains permitting and other requirements for onsite sewage systems, including AOSS. The new regulations require that a licensed operator visit each AOSS on a mandated frequency and file a report. The second enactment of Chapter 220 of the 2009 Acts of Assembly requires the State Board of Health to promulgate these regulations as emergency regulations.

The needs and goals for these regulations fall into three conceptual areas:

1. The current performance requirements contained in the SHDR are inadequate for AOSS.

2. Statutory changes in 2008 (§ 32.1-163.6 of the Code of Virginia) allow licensed professional engineers to design AOSS that are not required to comply with the SHDR. Instead, these designs must be compliant with performance requirements established by the board. Since current performance requirements are inadequate, these regulations seek to establish measurable performance requirements appropriate for all AOSS, including the engineered designs under § 32.1-163.6 of the Code of Virginia.

3. Proper operation and maintenance are essential to ensure that AOSS function as designed.

In developing the emergency regulations, the agency sought stakeholder input through an ad hoc advisory group. Also, as required by Chapter 220, a 30-day public comment period was noticed in 26:2 VA.R. 290 September 28, 2009, and ended on October 28, 2009. A summary of the public comments is available for public inspection by contacting the agency contact identified in this notice or at the Office of the Registrar of Regulations, General Assembly Building, 910 Capitol Street, 2nd Floor, Richmond, VA 23219.

CHAPTER 613
EMERGENCY REGULATIONS FOR ALTERNATIVE ONSITE SEWAGE SYSTEMS

Part I
General

12VAC5-613-10. Definitions.

The following terms used in this chapter shall have the following meanings. Terms not defined in this chapter shall have the meanings prescribed in Chapter 6 of Title 32.1 of the Code of Virginia or in 12VAC5-610-20 et seq. (or successor regulation) unless the plain reading of the language requires a different meaning.

"Alternative onsite sewage system," "AOSS," or "alternative onsite system" means a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge.

"Biochemical oxygen demand" (BOD) is the measure of the amount of oxygen required by bacteria for stabilizing material that can be decomposed under aerobic conditions.

"BOD₅" or "biochemical oxygen demand, five-day" means the quantitative measure of the amount of oxygen consumed by bacteria while stabilizing, digesting, or treating biodegradable organic matter under aerobic conditions over a five-day incubation period; expressed in milligrams per liter (mg/L).

"Conventional onsite sewage system" means a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield.

"Disinfection" means a process used to destroy or inactivate pathogenic microorganisms in wastewater to render them noninfectious.

"Dissolved oxygen (DO)" means the concentration of oxygen dissolved in effluent, expressed in mg/l or as percent saturation, where saturation is the maximum amount of oxygen that can theoretically be dissolved in water at a given altitude and temperature.

"Division" means the Division of Onsite Sewage, Water Services, Environmental Engineering, and Marina Programs within the department or equivalent.

"Effluent" means partially or fully treated sewage flowing from a treatment unit, treatment system, or septic tank.

"General approval" means that a treatment unit has been approved for TL-2 in accordance with 12VAC5-610-800 or for TL-3 pursuant to a testing protocol approved by the Division, provided that at least 20 units have been tested for four consecutive quarters and monitored in accordance with the approved testing protocol.

"Ksat" means saturated hydraulic conductivity.

"Large AOSS" means an AOSS that serves more than three single-family residences or a nonresidential facility with an average daily sewage flow in excess of 1,000 gpd.

"Limiting feature" means a feature of the soil that limits or intercepts the vertical movement of water, including seasonal, perched, or permanent water table, pans, soil restrictions, and pervious or impervious bedrock.

"Local health department" means the local health department having jurisdiction over the AOSS.

"MGD" means million gallons per day.

"Maintenance" means performing adjustments to equipment and controls and in-kind replacement of normal wear and tear parts such as light bulbs, fuses, filters, pumps, motors, or other like components. Maintenance includes pumping the tanks or cleaning the building sewer on a periodic basis. Maintenance shall not include replacement of tanks, drainfield piping, distribution boxes, or work requiring a construction permit and installer.

"Operate" means the act of making a decision on one's own volition (i) to place into or take out of service a unit process or unit processes or (ii) to make or cause adjustments in the operation of a unit process at a treatment works.

"Operation" means the biological, chemical, and mechanical processes of transforming sewage or wastewater to compounds or elements and water that no longer possess an adverse environmental or health impact.

"Operator" means any individual employed or contracted by any owner, who is licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as being qualified to operate, monitor, and maintain an alternative onsite sewage system.

"Organic loading rate" means the biodegradable fraction of chemical oxygen demand (biochemical oxygen demand, biodegradable FOG, and volatile solids) delivered to a treatment component in a specified time interval expressed as mass per time or area, e.g., pounds per day or pounds per cubic foot per day (pretreatment); pounds per square foot per day (infiltrative surface or pretreatment). For a typical residential system these regulations assume that biochemical loading (BOD₅) equals organic loading.

"Owner" means the Commonwealth or any of its political subdivisions, including sanitary districts, sanitation district commissions and authorities, any individual, any group of individuals acting individually or as a group, or any public or private institution, corporation, company, partnership, firm or association which owns or proposes to own a sewerage system or treatment works.

"pH" means the measure of the acid or base quality of water that is the negative log of the hydrogen ion concentration.

"Project area" means one or more recorded lots, or a portion of a recorded lot, owned by the owner of an AOSS or controlled by easement upon which an AOSS is located or which is contiguous to a soil treatment area and which is designated as such for purposes of compliance with the performance requirements of this chapter. In the case of an AOSS serving multiple dwellings, the project area may include multiple recorded lots as in a subdivision.

"Project area boundary" means the limits of the three-dimensional space defined when the horizontal component is the project area, the upper vertical limit is the ground surface in and around the AOSS, and the lower vertical limit is the vertical separation required by this chapter, a permeability limiting feature, or the permanent water table.

"Relationship with an operator" means an agreement between the owner of an AOSS and operator wherein the operator has been retained by the owner to operate the AOSS in accordance with the requirements of this chapter.

"Reportable incident" means one or more of the following: an alarm event, any failure to achieve one or more performance requirements, removal of solids, replacement of media, or replacement of any major component of the system including electric and electronic components, pumps, blowers, and valves. Routine maintenance of effluent filters is not included.

"Saturated hydraulic conductivity" means a quantitative measure of a saturated soil's capacity to transmit water when subjected to a hydraulic gradient.

"Settleable solids" means a measure of the volume of suspended solids that will settle out of suspension within a specified time, expressed in milliliters per liter (mL/L).

"Sewage Handling and Disposal Regulations" means 12VAC5-610-20 et seq. or successor regulation adopted by the Board of Health.

"Small AOSS" means an AOSS that serves no more than three single-family residences or a nonresidential facility with an average daily sewage flow of less than or equal to 1,000 gpd.

"Subsurface drainfield" means a system installed within the soil and designed to accommodate treated sewage from a treatment works.

"Soil treatment area" means the physical location in or on the naturally occurring soil medium where final treatment and dispersal of effluent occurs; includes subsurface drainfields, drip dispersal fields, and spray fields.

"Total nitrogen" means the measure of the complete nitrogen content of wastewater including all organic, inorganic, and oxidized forms expressed in mg/l as nitrogen.

"Total residual chlorine" (TRC) is a measure of the combined available chlorine and the free available chlorine available in a sample after a specified contact time.

"Total suspended solids" means a measure of the mass of all suspended solids in a sample typically measured in milligrams per liter (mg/L).

"Treatment level 2 effluent" or "TL-2 effluent" means effluent that has been treated to produce BOD₅ and TSS concentrations equal to or less than 30 mg/L each on a 30-day average basis.

"Treatment level 3 effluent" or "TL-3 effluent" means effluent that has been treated to produce BOD₅ and TSS concentrations equal to or less than 10 mg/L each on a 30 day average basis.

"Treatment unit" or "treatment system" means a method, technique, equipment, or process other than a septic tank or septic tanks used to treat sewage to produce effluent of a specified quality before the effluent is discharged to a soil treatment area.

"Turbidity" means the relative clarity of effluent as a result of the presence of varying amounts of suspended organic and inorganic materials or color.

"Vertical separation" means the vertical distance between the point of effluent application to the soil and a limiting feature of the site of the soil treatment area such as seasonal high ground water, bedrock, or other restriction.

12VAC5-613-20. Purpose and authority.

Pursuant to the requirements of §§ 2.2-4011, 32.1-12 and 32.1-164 et seq. of the Code of Virginia and Chapter 220 of the 2009 Acts of Assembly, the Board of Health has promulgated this chapter to:

1. Establish a program for regulating the operation and maintenance of alternative onsite sewage systems;

2. Establish performance requirements for alternative onsite sewage systems;

3. Establish horizontal setbacks for alternative onsite sewage systems that are necessary to protect public health and the environment;

4. Discharge the board's responsibility to supervise and control the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and treatment works as they affect the public health and welfare;

5. Protect the quality of surface water and ground water;

6. Guide the State Health Commissioner in determining whether a permit or other authorization for an alternative onsite sewage system shall be issued or denied; and

7. Inform owners, applicants, onsite soil evaluators, system designers, and other persons of the requirements for obtaining a permit or other authorization for an alternative onsite sewage system.

12VAC5-613-30. Applicability and scope.

A. As provided in this section, this chapter governs the design, construction, and operation of AOSS.

B. Part II of this chapter, Performance Requirements, applies only to alternative onsite sewage systems permitted pursuant to applications filed on or after the effective date of this chapter.

C. Part III of this chapter, Operation and Maintenance Requirements, shall apply to all AOSS, including those in operation prior to the effective date of this chapter.

D. The laboratory sampling requirements of this chapter apply only to AOSS permitted pursuant to applications filed on or after the effective date of this chapter.

E. Any AOSS in operation prior to the effective date of this chapter is subject to the performance requirements contained in the regulations in effect at the time the system was permitted.

F. AOSS designed, constructed, permitted, and operated in accordance with this chapter and the prescriptive design, location, and construction criteria of 12VAC5-610-20 et seq. and the policies and procedures of the department are presumed to comply with the ground water quality requirements of 12VAC5-613-70 A 11.

G. This chapter shall be effective for 12 months following the effective date, unless extended in accordance with the provisions of § 2.2-4011 of the Code of Virginia.

H. AOSS designed pursuant to § 32.1-163.6 of the Code of Virginia are subject to the following requirements:

1. Performance requirements of this chapter;

2. Horizontal setback requirements of this chapter;

3. Operation, maintenance, inspection, and sampling requirements of this chapter; and

4. Standard engineering practice.

12VAC5-613-40. Relationship to other regulations.

This chapter is supplemental to 12VAC5-610-20 et seq. (the Sewage Handling and Disposal Regulations) and supersedes Table 5.4 of the SHDR for all AOSS designed to disperse TL-2 or TL-3 effluent. Table 5.4 of the Sewage Handling and Disposal Regulations shall govern the design of any AOSS designed to disperse septic tank effluent to the soil treatment area. All procedures pertaining to enforcement, the minimum requirements for filing applications, and the processing of applications, including appeals, and case decisions contained in the Sewage Handling and Disposal Regulations (or successor regulation) shall apply to the permitting of AOSS under this chapter. In any case where there is a conflict between this chapter and the Sewage Handling and Disposal Regulations (or successor regulation), this chapter shall be controlling.

12VAC5-613-50. Violations, enforcement.

A. Failure by any person or AOSS to achieve one or more performance requirements prescribed by this chapter, to accomplish any mandated visit, or to perform any operation, maintenance, monitoring, sampling, reporting, or inspection requirement of this chapter, either individually or in combination, shall be a violation of this chapter.

B. Nothing in this chapter shall be construed to limit the authority of the board, the commissioner, or the department to enforce this chapter or the requirements of 12VAC5-610-20 et seq. (or successor regulation).

C. In accordance with the SHDR and § 32.1-25 of the Code of Virginia, the commissioner may take such samples and conduct such monitoring, including ground water samples and monitoring, he deems necessary to enforce this chapter.

D. The board, commissioner, and department may use any lawful means to enforce this chapter, including voiding a construction or operation permit, imposition of civil penalties, or criminal prosecution.

12VAC5-613-60. Operation permits, land records.

A. The department shall not issue an operation permit for an AOSS unless the owner has established a relationship with an operator and provided the operator's name and license number to the local health department. The owner shall maintain a relationship with an operator during periods when the AOSS is in operation.

B. The department shall not issue an operation permit for an AOSS until the owner has recorded an instrument which complies with § 15.2-2157 E of the Code of Virginia in the land records of the appropriate circuit court.

C. When all or part of the project area is to be used in the management of nitrogen from a large AOSS the owner shall record legal documentation in the land records of the circuit court having jurisdiction over the site of the AOSS. Such documentation shall be in a form approved by the division and shall protect and preserve the land area in accordance with the management methods established by the designer.

Part II
Performance Requirements

12VAC5-613-70. Performance requirements-general.

A. All AOSS designed, constructed and operated pursuant to this chapter shall comply with the following performance requirements:

1. The presence of raw or partially treated sewage on the ground's surface or in adjacent ditches or waterways is prohibited. Spray irrigation systems and other systems utilizing surface application of treated effluent require, by design, the presence of effluent on the surface for short periods of time. With these systems complete absorption of effluent must occur before the application of another dose.

2. The exposure of insects, animals, or humans to raw or partially treated sewage is prohibited.

3. The backup of sewage into plumbing fixtures is prohibited.

4. All treatment units and treatment systems shall be designed for the anticipated wastewater strength and peak flow.

5. All treatment units and treatment systems shall be designed to produce a minimum of TL-2 effluent.

6. Dosing of the treatment unit or treatment system shall accommodate the design peak flow within the treatment unit's rated capacity.

7. The following performance requirements govern the dispersal of effluent in the soil treatment area:

a. Trench bottom hydraulic loading rates for pressure-dosed systems shall not exceed the values in Table 1. The designer must reduce loading rates for gravity dosed systems. Area hydraulic loading rates for systems such as drip dispersal, spray irrigation, and mounds must be less than the trench bottom values in Table 1 and reflect standard engineering practice.

b. Adherence to this performance requirement does not assure or guarantee that other performance requirements of this chapter, including effluent dispersal or ground water quality, will be met. It is the designer's responsibility to ensure that the proposed design is adequate to achieve all performance requirements of this chapter. The designer is responsible for reducing loading rates according to the features and properties of the soils in the soil treatment area.

Table 1 Maximum Trench Bottom Hydraulic Loading Rates
Percolation Rate (MPI)	TL-2 Effluent (gpd/sf)	TL-3 Effluent (gpd/sf)
up to 15	1.8	3.0
20-25	1.4	2.0
30-45	1.2	1.5
50-90	0.8	1.0
Greater than 90	0.4	0.5

8. Septic tank effluent may only be discharged to a soil treatment area when the vertical separation to a limiting feature consists of at least 18 inches of naturally occurring, in-situ soil. AOSS designed to disperse septic tank effluent require at least 12 inches of soil cover in the soil treatment area.

9. TL-3 effluent and disinfection are required whenever one or more of the following apply:

a. There is less than 12 inches of vertical separation to a limiting feature in the soil treatment area,

b. There is less than 6 inches of vertical separation to a limiting feature in the naturally occurring soil below the soil treatment area, or

c. The AOSS utilizes surface application of effluent, such as spray irrigation.

10. For any small AOSS where the vertical separation to a permeability-limiting feature is less than 18 inches below the soil treatment area and for any large AOSS, regardless of site constraints, the designer shall provide calculations to demonstrate that water mounding will not adversely affect the functioning of the soil treatment area, that hydraulic failure will not occur, and that adequate vertical separation will be maintained to ensure the performance requirements of this chapter are met. For large AOSS the department may require the owner to monitor the degree of saturation beneath the soil treatment area.

11. The AOSS shall not pose a greater risk of ground water pollution than systems otherwise permitted pursuant to 12VAC5-610-20 et seq. After wastewater has passed through a treatment unit or septic tank and passed through the soil in the soil treatment area, the concentration of fecal coliform organisms must not exceed 200 cfu/100 ml at the lower vertical limit of the project area boundary. When disinfection is required, the effluent quality prior to dispersal to the soil treatment area must not exceed 200 cfu/100 ml. When chlorine is used for disinfection, 30-minute contact time at average daily flow is required with a TRC following the contact tank not less than 1 mg/l.

12. The following minimum effluent and site condition requirements must be met:

Table 2 Minimum Effluent Requirements for Vertical Separation to Limiting Features
Vertical separation	Effluent Description
≥18" (must be naturally occurring soils)	Septic, TL-2, or TL-3
<18" to 12" (requires minimum 6" of naturally occurring soils)	TL-2 or TL-3
<12" (organic loading rate not to exceed 2.1 x 10-4 BOD lb/day/sf)	TL-3 and disinfection

13. Each large AOSS must comply with a total nitrogen limit of 5 mg/l as nitrogen at the project area boundary. Prior to the issuance of a construction permit, the designer shall demonstrate compliance with this requirement through modeling or other calculations. Such demonstration may incorporate multiple nitrogen removal methods such as pretreatment, vegetative uptake (only for AOSS with shallow soil treatment areas), denitrification, and other viable nitrogen management methods.

14. The AOSS shall be designed so that all components are of sufficient structural integrity to minimize the potential of physical harm to humans and animals.

15. The AOSS shall be designed to minimize noise, odor, or other nuisances at the property boundary.

16. The conveyance system for any AOSS shall be designed and installed with sufficient structural integrity to resist inflow and infiltration and to maintain forward flow.

17. Spray irrigation systems are limited to AOSS with average daily sewage flows of 1,000 gpd or less.

18. For purposes of assisting owners in obtaining such funds as may be available for reducing nitrogen discharges from AOSS, including Betterment Loans and grants from the Water Quality Improvement Fund, the department shall evaluate AOSS designs and establish the nitrogen-reducing capacities thereof.

19. When sand, soil, or soil-like material is used to increase the vertical separation, the designer shall specify methods and materials that will achieve the performance requirements of this chapter.

B. The title page of plans for an AOSS shall state that the plans are being submitted pursuant to § 32.1-163.6 of the Code of Virginia. Where this statement is not included on the title page, the department will review the plans pursuant to the Sewage Handling and Disposal Regulations.

C. Each application under § 32.1-163.6 of the Code of Virginia shall include a site characterization report using the Field Book for Describing and Sampling Soils, Version 2.0, National Soil Survey Center, Natural Resources Conservation Service, U.S. Department of Agriculture, September 2002. The report may contain such information that the designer deems appropriate; however, it must describe the following minimum attributes of the site of the proposed soil treatment area:

1. Depth to limiting feature(s), including seasonal or perched water table, pans, restrictions, pervious or impervious bedrock;

2. Slope of the project area;

3. Ksat or percolation rate at the proposed installation depth and at depths below the soil treatment area to demonstrate compliance with this chapter. Ksat or percolation rate may be estimated for small AOSS; the Ksat or percolation rate must be measured using an appropriate device for large AOSS;

4. Landscape or landform; and

5. Project area, along with those physical features in the vicinity of the proposed AOSS normally associated with plans for onsite sewage systems, including streams, bodies of water, roads, utilities, wells and other drinking water sources, existing and proposed structures, and property boundaries.

D. All large AOSS shall discharge only TL-2 or TL-3 effluent to the soil treatment area; septic tank effluent is prohibited for large AOSS.

E. All plans and specifications for AOSS shall be properly sealed by a professional engineer licensed in the Commonwealth pursuant to Title 54.1 of the Code of Virginia unless such plans are prepared pursuant to an exemption from the licensing requirements of Title 54.1 of the Code of Virginia. When plans and specifications are prepared pursuant to an exemption, the designer shall provide a certification statement, in a form approved by the Division, identifying the specific exemption under which the plans and specifications were prepared and certifying that he is authorized to prepare such plans pursuant to the exemption.

12VAC5-613-80. Performance requirements-laboratory sampling and monitoring.

A. Laboratory sampling is not required for AOSS designed to discharge septic tank effluent to the soil treatment area.

B. All effluent samples must be taken at the end of all treatment, prior to the point where the effluent is discharged to the soil treatment area.

C. All sampling and monitoring shall be conducted according to procedures approved under 40 CFR Part 136 or alternative methods approved by the U.S. Environmental Protection Agency unless other procedures have been specified in this chapter.

D. The owner of each small AOSS is required to submit an initial grab sample of the effluent from the treatment unit and have the sample analyzed in accordance with 40 CFR Part 136 or alternative methods approved by the U.S. Environmental Protection Agency within the first 180 days of operation. Thereafter, if the treatment unit has received general approval, a grab sample is required once every five years. Samples shall be analyzed for BOD₅ and, if disinfection is required, fecal coliform. Treatment systems utilizing chlorine disinfection may alternatively sample for TRC instead of fecal coliform. Sample results shall be received by the local health department by the 15th of the month following the month in which the sample was taken.

E. For small AOSS that utilize a treatment unit that has not received general approval, after the initial sample required by subsection D, four additional grab samples of the effluent from the treatment unit are to be collected, analyzed, and submitted to the department within the first two years of operation and annually thereafter. The interval for collecting the samples shall not be less than quarterly or more than semiannually. Sample results shall be received by the local health department by the 15th of the month following the month in which the sample was taken.

F. Sampling and monitoring requirements for AOSS treatment systems with flows greater than 1,000 gpd are contained in Table 3.