Title of Regulation: 12VAC5-615. Authorized Onsite Soil Evaluator Regulations (repealing 12VAC5-615-10 through 12VAC5-615-470).

Statutory Authority: §§ 32.1-163.5 and 32.1-164 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 11, 2013.

Effective Date: September 30, 2013.

Agency Contact: Allen Knapp, Director, Office of Environmental Health Services, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7458, FAX (804) 864-7475, or email allen.knapp@vdh.virginia.gov.

Basis: The Board of Health does not have a statutory mandate to establish a program for authorized onsite soil evaluators (AOSEs) because of Chapter 892 of the 2007 Acts of Assembly. The board still has legislative authority to accept and review evaluations and designs from licensed onsite soil evaluators pursuant to §§ 32.1-163, 32.1-163.6, and 32.1-164 of the Code of Virginia.

Purpose: The AOSE regulations were promulgated July 1, 2002, pursuant to provisions of §§ 32.1-163.4, 32.1-136.5, 32.1-164, and 32.1-164.1:01 of the Code of Virginia. Chapter 892 of the 2007 Acts of Assembly amended and re-enacted §§ 32.1-163, 32.1-164, 54.1-300, 54.1-2300, 54.1-2301, and 54.1-2302 of the Code of Virginia. The legislation rescinded certificate requirements administered by the Department of Health (VDH). In its place, the legislation directed the Department of Professional and Occupational Regulation (DPOR) to promulgate regulations for persons seeking a license as an onsite soil evaluator. The legislation obviates the need for the Board of Health to administer a certificate program for AOSEs.

DPOR adopted regulations for onsite soil evaluators (18VAC160-20). The AOSE regulations unnecessarily establish a certificate program for qualifying individuals as AOSEs, including conflict of interest requirements. Documentation requirements in the AOSE regulations for reports and designs are now contained in VDH policies that implement other regulations (e.g., 12VAC5-610, 12VAC5-613, 12VAC5-640, and 12VAC5-630). Processing time limits and definitions have been established in the Code of Virginia and agency policies, which further render the AOSE regulations unnecessary.

Rationale for Using Fast-Track Process: The agency does not expect controversy because the regulations are being repealed. DPOR has regulations for the licensing of onsite soil evaluators. The Board of Health's program will not change with the repeal of this regulation. The Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals in DPOR now administers the program.

Substance: All requirements in 12VAC5-615 will be repealed.

Issues: The primary advantage to the public and the Commonwealth will be to remove unnecessary regulations that are not being implemented by VDH. Repealing the regulation will prevent confusion. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Department of Health (VDH) proposes to repeal these regulations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The 2007 Virginia General Assembly enacted House Bill 3134, which transferred implementation, administration, and enforcement of licensing requirements for onsite soil evaluators from VDH to the Department of Professional and Occupational Regulation with administration by the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals. The Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals promulgated regulations for onsite soil evaluators on July 1, 2009 (18VAC160-20). House Bill 3134 abrogated the Board of Health's authority to license Authorized Onsite Soil Evaluators (AOSEs); and while Title 32.1 of the Code of Virginia contains other references to the Board of Health's regulation of AOSEs, VDH has successfully implemented those statutory provisions independent of 12VAC5-615. Thus, the proposed repeal of these regulations will have no impact beyond potentially reducing confusion as toward the licensure rules for AOSEs in effect.

Businesses and Entities Affected. As mentioned above, the proposed repeal of these regulations will have no impact beyond potentially reducing confusion as toward the licensure rules for onsite soil evaluators in effect. Firms involved on onsite soil evaluation would be most interested in the rules.

Localities Particularly Affected. The proposed repeal of these regulations does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal of these regulations is unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of these regulations is unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal of these regulations is unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal of these regulations is unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed repeal of these regulations is unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Health concurs with the conclusion reached by the Department of Planning and Budget's economic impact analysis that the benefits of the proposed changes will likely exceed the costs of all proposed changes.

Summary:

The regulatory action repeals 12VAC5-615 to comport with Chapter 892 of the 2007 Acts of Assembly, which transferred implementation, administration, and enforcement of licensing requirements for onsite soil evaluators to the Department of Professional and Occupation Regulation.