Title of Regulation: 12VAC5-640. Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (amending 12VAC5-640-20, 12VAC5-640-30, 12VAC5-640-40, 12VAC5-640-60, 12VAC5-640-70, 12VAC5-640-80, 12VAC5-640-110, 12VAC5-640-140, 12VAC5-640-150, 12VAC5-640-170, 12VAC5-640-180, 12VAC5-640-210 through 12VAC5-640-290, 12VAC5-640-400, 12VAC5-640-420 through 12VAC5-640-470, 12VAC5-640-490 through 12VAC5-640-520; adding 12VAC5-640-5, 12VAC5-640-262, 12VAC5-640-264, 12VAC5-640-266, 12VAC5-640-432, 12VAC5-640-434; repealing 12VAC5-640-10, 12VAC5-640-50, 12VAC5-640-100, 12VAC5-640-130, 12VAC5-640-190, 12VAC5-640-200, 12VAC5-640-300 through 12VAC5-640-380, 12VAC5-640-480).

Statutory Authority: §§ 32.1-12 and 32.1-164 of the Code of Virginia.

Public Hearing Information:

January 13, 2014 - 9 a.m. - Department of Health, Perimeter Center, 9960 Mayland Drive, Training Room, Richmond, VA 23233

Public Comment Deadline: February 14, 2014.

Agency Contact: Marcia Degen, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 387-1883, FAX (804) 864-7475, or email marcia.degen@vdh.virginia.gov.

Basis: Sections 32.1-12, 32.1-163, and 32.1-164 of the Code of Virginia provide the statutory authority and mandate that the board protect public health and the environment. Section 32.1-12 authorizes the board to make, adopt, promulgate, and enforce regulations that may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it or the State Health Commissioner. Further, § 32.1-164 A of the Code of Virginia states that the board shall have supervision and control over the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems, and treatment works as they affect the public health and welfare. Moreover, § 32.1-164 B mandates that the board promulgate regulations that govern the collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems. Section 32.1.-164 A mandates that the board require and that the department conduct regular inspections of alternative discharging sewage systems and that the board establish requirements for maintenance contracts for alternative discharging sewage systems.

Purpose: The board has not updated the regulations since the initial adoption in 1992. Since the regulations became effective, additional technological options have emerged that offer more cost effective discharging options to homeowners. In addition, these new technologies offer a higher degree of protection of public health and the environment. The proposed amendments are intended to benefit stakeholders by simplifying application processes, improving the process for conferring general approval on treatment units, and providing greater flexibility for the design and use of discharging systems. Further, the proposed amendments are intended to protect the health, safety, and welfare of citizens by ensuring that these systems are properly designed, operated, and maintained so as to prevent system failure and to protect Commonwealth's citizens from the deleterious effects of raw sewage.

Substance: The proposed amendments add (i) definitions for a number of terms, including but not limited to the following: alternative onsite sewage system, BOD5, biological treatment unit, combined application, conventional onsite sewage system, dechlorination, maintenance, modify, operate, operation, general approval, definitions for reliability and treatment levels, wetlands, surface waters, emergency pump and haul, post aeration unit, point source discharge, NPDES, and VPDES and (ii) requirements that owners of discharging systems permitted after the effective date of the proposed amendments must have an operation and maintenance manual.

The proposed amendments also:

1. Expand the onsite options that must be evaluated and found unsatisfactory before a discharge option is to be considered so as to extend the evaluation to reduced footprint options available under 12VAC5-613;

2. Eliminate redundancies and inconsistencies with the Administrative Process Act and Title 32.1 of the Code of Virginia with regard to hearings, orders and enforcement;

3. Increase the length of time that a construction permit is valid;

4. Provide for the transfer of construction and operation permits under limited circumstances;

5. Modifiy the application process in an effort to simplify it;

6. Eliminate any reference to permit suspension;

7. Require wetland delineation by the U.S. Army Corps of Engineers when the proposed discharge is to a wetland;

8. Simplify the general approval process for treatment units to make it more reliable;

9. Reduce the sampling and monitoring requirements to the homeowner for most systems;

10. Require reliability assurances for discharging systems to protect against public health and environmental problems associated with component or system failure. The Virginia Department of Health added three levels of reliability that are based on the available discharge area and the discharge point;

11. Repeal the prohibition on the use of discharging systems for dwellings subject to intermittent use and allow it under certain circumstances;

12. Require systems to be designed to accommodate peak flow rates and to protect against adverse weather conditions;

13. Restrict access between humans, animals, and effluent in order to account for wetland discharges and in order to provide more design flexibility;

14. Add design requirements for system components in order to parallel the requirements contained in the Sewage Collection and Treatment Regulations (9VAC25-790);

15. Modify the informal process control testing such that the testing conducted more accurately assesses system performance;

16. Expand the list of individuals allowed to perform maintenance to include alternative onsite sewage system operators in addition to the existing Class IV or higher wastewater works operator license; and

17. Require electronic reporting of inspection results.

Issues:

The proposed amendments provide benefits to the public by accommodating access to more cost-efficient technologies, simplifying the application process, and allowing for the transfer of construction and operation permits under certain circumstances.

The proposed amendments provide advantages to the agency by simplifying the application process and allowing private sector individuals to perform site evaluations.

The proposed amendments also provide greater protection to public health and the environment by requiring reliability assurances for discharging systems to protect against public health and environmental problems associated with component or system failure. The proposed amendments also provide system designers and users with greater flexibility by enabling designers to reduce the separation distance between discharge points if certain design criteria are met and by allowing these systems for dwellings subject to intermittent use. 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 State Board of Health proposes to 1) require new owners of alternative discharging systems to have an operation and maintenance manual, 2) add wetlands as a potential discharge point, 3) expand the areas where systems may discharge under certain conditions, 4) reduce the number of required analytical tests and the maintenance visits for some homeowners, 5) no longer allow homeowners to conduct sampling of their own systems, 6) expand the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued, and 7) increase the time frame of a construction permit from 54 months to 60 months.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes. Detailed analysis of the benefits and costs can be found in the next section.

Estimated Economic Impact. One of the proposed changes will require new owners of alternative discharging systems to have an operation and maintenance manual for their system. The manual will provide information on what is in the ground, how to operate it, maintenance requirements, where sample ports are, what samples are required, etc. The manual will be a quick reference for the operator and is expected to improve the quality of maintenance and repair service and shorten the amount of time it would otherwise take to service the system. It will also help pass this information to new owners. Virginia Department of Health (VDH) estimates that the cost of the manual ranges from $300 to $500 per system. This change will affect approximately 100 discharging systems expected to come online every year. The main benefit of this requirement is a reduction in likelihood and amount of having an untreated discharge into the environment due to reduced chances for a system failure or reduced time to repair a failing system.

Another proposed change will add wetlands as a potential discharge point, but will require that wetland delineation is conducted. These delineations can be conducted for free by Army Corps of Engineers or for an estimated cost of $1,000 to $2,500 by private consultants. VDH expects no more than 5 to 10 systems per year to be allowed to discharge into wetlands. While this change may expose wetlands to some environmental risks, the amount of land available for development in coastal areas of the state is expected to increase. Landowners in wetlands where no development was possible before may see an increase in the value of their real property. However, if discharges from these systems are perceived to be detrimental to human health and the environment, the value of properties in the area may be negatively affected.

The proposed changes will also allow VDH to issue permits for systems discharging to areas that were previously prohibited, such as downstream waters used for swimming, water skiing, or tubing, provided an appropriate level of treatment is achieved. Similar to the previous change, while public may be exposed to additional health risks, the amount of land available for development will increase. Landowners in these areas where discharging systems are currently prohibited on their land may see an increase in the value of their real property. Similarly, if discharges from these systems are perceived to be detrimental to human health and environment, the value of properties in the area may be negatively affected.

The proposed changes will also reduce the number of required analytical tests and maintenance visits for some homeowners. Currently, maintenance and monitoring costs for non-generally approved systems range from $1,000 per year for monthly maintenance visits and quarterly formal monitoring to about $800 for quarterly visits and semiannual monitoring. The proposed changes will allow non-generally approved systems to be monitored initially quarterly, but once the system demonstrates compliance, the system will revert to the generally approved sampling schedule which will save the owner approximately $400 per year in operation and maintenance costs. According to VDH, the majority (approximately 90% to 95%) of the systems are generally approved systems. Thus, of the 100 systems expected to come online every year, about 5 to 10 are likely to experience cost savings due to this change. Of the existing systems, VDH estimates that approximately 200 to 300 systems may benefit from this change.

Another proposed change will no longer allow homeowners to conduct sampling of their own systems. VDH estimates that approximately 120 owners are currently performing their own sampling. However, current sampling waiver holders may be grandfathered under the proposed regulations. Thus, this change is expected to mainly affect new homeowners. This proposed change may add to compliance costs in terms of increased monitoring costs, but is also expected to reduce potentially risky discharges to the environment by making sure that sampling is performed by independent professionals.

One of the proposed changes will expand the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued to include alternative systems in addition to conventional systems. This change has the potential to reduce the number of discharging system permits as some alternative systems may now be found satisfactory, but also add to compliance costs associated with evaluating more types of systems.

Finally, the proposed changes will increase the time frame of a construction permit from 54 months to 60 months. The proposed new time frame will coincide with life span of the general permit and may provide administrative cost savings.

Businesses and Entities Affected. These regulations apply to individual residential discharging sewage treatment systems. There are approximately 1,500 to 1,800 such systems permitted to operate in Virginia.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth. However, discharging sewage treatment systems are known to cluster around Interstate 81 corridor and Southwest Virginia. Thus, localities in these regions of the state may proportionally be more affected.

Projected Impact on Employment. While reducing the number of required analytical tests and the maintenance visits for some homeowners is expected to reduce demand for labor, the majority of the changes (i.e., requiring new owners of alternative discharging systems to have an operation and maintenance manual, adding wetlands as a potential discharge point, expanding the areas where systems may discharge under certain conditions, no longer allowing homeowners to conduct sampling of their own systems, expanding the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued) are expected to increase demand for labor.

Effects on the Use and Value of Private Property. The proposed changes are expected to have a significant positive effect on the value of land which could not be developed under the current regulations, but may be developed under the proposed regulations due to adding wetlands as a potential discharge point and expanding the areas where systems may discharge under certain conditions. Whether land can now be developed under the proposed regulations will be site specific.

On the other hand, if the market perceives that building systems that discharge into wetlands and waters where human contact is present pose a significant health and environmental risks, the value of surrounding properties may be negatively affected.

Finally, reduced compliance costs (due to reducing the number of required analytical tests and the maintenance visits for some homeowners and increasing the time frame of a construction permit from 54 months to 60 months) are expected to increase asset value of the properties while added compliance costs (due to requiring new owners of alternative discharging systems to have an operation and maintenance manual, no longer allowing homeowners to conduct sampling of their own systems, and expanding the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued) are expected to have a negative effect on the asset value of affected properties.

Small Businesses: Costs and Other Effects. The proposed regulations do not have any direct impact on small businesses. However, the proposed changes may have some indirect effects on the revenue of small businesses involved in construction and maintenance of discharging systems and houses. For example, requiring new owners of discharging systems to have an operation and maintenance manual, adding wetlands as a potential discharge point, expanding the areas where systems may discharge under certain conditions, no longer allowing homeowners to conduct sampling of their own systems, expanding the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued are expected to increase the demand for services of small businesses and have a positive impact on their revenues.

On the other hand, reducing the number of required analytical tests and the maintenance visits for some homeowners is expected to reduce demand for services of small businesses and have a negative impact on their revenues.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed changes are not expected to have a direct and significant adverse impact on small businesses.

Real Estate Development Costs. Some of the proposed regulations (i.e., adding wetlands as a potential discharge point and expanding the areas where systems may discharge under certain conditions) are expected to reduce real estate development costs while some others (i.e., requiring new owners of alternative discharging systems to have an operation and maintenance manual, expanding the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued) are expected to increase 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, 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 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 agency concurs with the Department of Planning and Budget's (DPB) analysis that the benefits of the proposed regulations are likely to exceed the economic costs. In developing these amendments, the Virginia Department of Health (VDH) worked with both internal and external advisory committees to assess which administrative and technical components of the regulations should be changed to make the regulation more efficient and reflect the advances made in technology since the regulations were first adopted in 1992.

The addition of an operation and maintenance manual requirement for new owners is estimated to cost $300 - $500 per system installed. Originally, VDH had estimated the cost of the manual at $1,000 - $2,500. However, after further investigation and with new information regarding manuals that are now required for other regulated systems, that estimate has dropped to $300 - $500. While this is a new cost, there is a benefit to the homeowner in having this document. This document details the physical components of the installed system, how it works, what routine maintenance should be provided, and what sampling is required. When the owner hires an operator for his system, the owner will know what is required and what he is paying for. The manual also provides the operator valuable information as to what is supposed to be installed and how it is supposed to operate. Most of these systems are buried so having that background information allows a new operator to understand the system faster.

The addition of wetlands as a potential discharge point recognizes that wetlands are a surface water of Virginia and, as such, may receive appropriately treated wastewater. Previously, wetlands had not been included as a potential discharge point because the technology was not available to reliably produce wastewater of sufficient quality. This regulation utilizes advances in technology and appropriate setback distances to set standards that are protective of public health. These potential discharge points are still subject to evaluation for effects on public health concerns such as shellfish waters and public drinking water supplies, so while the potential to create a discharge to a wetland exists, it should not be interpreted to mean that all discharges to wetlands will be approved. The option, however, to consider discharges to wetlands may provide an economic benefit to homeowners who previously had no recourse for sewage disposal.

Changes in the sampling requirements are perhaps the largest potential benefit. The current regulations have three levels of frequency for maintenance visits, informal testing, and formal testing depending on the approval status of the treatment system installed. The new regulations reduce the levels to two and allow the more frequent level to convert to the less frequent level upon satisfactory completion of an initial sampling regime. This will simplify the program from an implementation standpoint and will save owners in the cost of maintaining their systems.

Another large benefit not noted in the DPB analysis is the addition of another licensed operator group as being acceptable to operate these systems. Previously, only licensed wastewater operators were allowed. The amendments add alternative onsite sewage system operators as acceptable operators. This class of licensed operators is new and was not previously available. This will expand the number of available operators for owners to contract with and should help reduce costs as well. Because of the expansion of the operator base, VDH believed it was prudent to remove the waiver to allow new owners to collect their own samples. Proper sample collection is critical to producing an accurate analytical result, and most owners are not trained in proper sample collection, sample preservation, and sample holding times.

The DPB analysis discusses the types of systems that must be considered and determined unsatisfactory prior to allowing a discharge permit. The current regulation recognizes that all onsite options must be evaluated and found unsuitable prior to considering a discharge permit. This statement recognizes that the discharge of treated sewage to soil is preferable than a direct discharge whenever possible. The 1992 regulation defines the limits of the types of systems to be considered based on the current onsite regulatory environment at the time. In 2011, VDH adopted new regulations for alternative onsite sewage systems that allow the use of sites with greater restrictions than previously allowed when appropriate treatment, loading rates, and horizontal separations are maintained. The proposed amendments were drafted to clearly identify the universe of options that must be considered and found unsuitable before a discharge permit can be considered. DPB recognized this as an increase in the cost of evaluating options. VDH believes there should be no increase in the evaluation costs for this process because the evaluation of a site is typically accomplished via site characterization, and the range of options is considered at the same time.

VDH believes that the proposed amendments will result in greater options for owners, reduced costs for owners, and a higher level of public health protection.

Summary:

The proposed amendments (i) simplify the application process, (ii) amend administrative processes to eliminate inconsistencies with the Virginia Administrative Process Act, (iii) require new owners of alternative discharging systems to have an operation and maintenance manual, (iv) add wetlands as a potential discharge point, (v) expand the areas where systems may discharge under certain conditions, (vi) reduce the number of required analytical tests and maintenance visits for some homeowners, (vii) no longer allow homeowners to conduct sampling of their own systems, (viii) expand the types of systems that must be considered, evaluated, and found unsatisfactory before a discharging system permit may be issued, (ix) increase the time frame of a construction permit from 54 months to 60 months, and (x) allow licensed alternative onsite sewage system operators as a licensed operator group.

Part I
General Provisions

12VAC5-640-5. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Agent" means a legally authorized representative of the owner.

"All weather stream" means any stream that will, at all times, dilute point source discharge effluent from a pipe at least 10:1 as measured during a seven consecutive day average of a 10-year low flow (7-Q-10).

"Alternative discharging sewage treatment system" or "discharging system" means any device or system that results in a point source discharge of treated sewage for which the board may issue a permit authorizing construction and operation when such system is regulated by the SWCB pursuant to a general VPDES permit issued for an individual single family dwelling with flows less than or equal to 1,000 gallons per day on a monthly average.

"Alternative onsite sewage treatment 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, five day" or "BOD₅" 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; BOD₅ is expressed in milligrams per liter (mg/l).

"Biological treatment unit" means a method, technique, equipment, or process other than a septic tank or septic tanks that uses biological organisms to treat sewage to produce effluent of a specified quality.

"Board" means the State Board of Health.

"Combined Application" means a Virginia Department of Health Discharging System Application Form for Single Family Dwellings Discharging Sewage Less Than or Equal to 1,000 Gallons Per Day and a State Water Control Board Virginia Pollutant Discharge Elimination System General Permit Registration Statement for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons Per Day.

"Commissioner" means the State Health Commissioner or his subordinate who has been delegated powers in accordance with subdivision 2 of 12VAC5-640-80.

"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.

"Dechlorination" means a process that neutralizes chlorine in the final effluent.

"Department" means the district or local health department with jurisdiction over the site or proposed site of the alternative discharging sewage treatment system.

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

"Disinfection unit" means a separate treatment component that disinfects wastewater.

"District health department" means a consolidation of local health departments as authorized in § 32.1-31 C of the Code of Virginia.

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

"Dry ditch" means a naturally occurring swale or channel that is topographically connected to an all weather stream. In some cases, a dry ditch may have a manmade component that provides a topographical connection to an existing, naturally occurring swale or channel. A dry ditch may have observable flow during or immediately after a storm event or snow melt. For the purposes of this chapter, all dry ditches shall have a well defined natural channel with sides that have at least a 1:10 (rise:run) slope.

"Emergency pump and haul" means an emergency condition to pump out the treatment systems tanks by a licensed sewage handler as needed to not allow a discharge to protect public health and the environment.

"Failing alternative discharging sewage treatment system" means any alternative discharging sewage treatment system that discharges effluent having a BOD_5, total suspended solids, pH, chlorine residual, dissolved oxygen, or bacteria value that is out of compliance with the General Permit or fails to comply with 12VAC5-640-430. The failure to discharge due to exfiltration may indicate system failure.

"Failing onsite sewage disposal system" means an onsite sewage disposal system where the presence of raw or partially treated sewage on the ground's surface or in adjacent ditches or waterways or exposure to insects, animals, or humans is prima facie evidence of a system failure. Pollution of the groundwater or backup of sewage into plumbing fixtures may also indicate system failure.

"General approval" means that a treatment unit has been evaluated and approved for TL-2 effluent or TL-3 effluent in accordance with the requirements of this chapter and 12VAC5-610.

"General Permit" means a Virginia Pollutant Discharge Elimination System (VPDES) General Permit for domestic sewage discharges less than or equal to 1,000 gallons per day on a monthly average issued by the State Water Control Board.

"Intermittent stream" means any stream that will not, at all times, dilute point source discharge effluent at least 10:1 as measured during a seven consecutive day average of a 10-year low flow (7-Q-10). For the purposes of this section, an intermittent stream is identified as a dashed or dotted line on a U.S. Geological Survey 7.5 minute topographic map or an all weather stream that provides less than 10:1 dilution of the effluent based on 7-Q-10 flow.

"Local health department" means the department established in each city and county in accordance with § 32.1-30 of the Code of Virginia.

"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.

"Modify" means to alter a treatment works, excluding actions taken to "operate" the treatment works and "maintenance" activities as those terms are defined in § 32.1-163 of the Code of Virginia.

"National Pollutant Discharge Elimination System" or "NPDES" means the national program for (i) issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits and (ii) imposing and enforcing pretreatment requirements under §§ 307, 402, 318, and 405 of the Clean Water Act (§ 33 USC § 1251 et seq.). The term includes an approved program.

"Operate" means the act of making a decision on one's own volition to (i) place into or take out of service a unit process or unit processes or (ii) 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.

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

"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the law of this Commonwealth or any other state or country.

"Point source discharge" means any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater run-off.

"Post-aeration unit" means a treatment component that is designed to add oxygen to an effluent.

"Post-filtration unit" means a treatment component that physically removes total suspended solids.

"Reliability" means a measure of the ability of a component or system to perform its designated function without failure or interruption of service. Overflow criteria, such as an allowable period of a noncompliant discharge, are utilized solely for the establishment of reliability classification for design purposes and are not to be construed as authorization for, or defense of, an unpermitted discharge to state waters. The reliability classification shall be based on the water quality and public health and welfare consequences of a component or system failure.

"Reliability Class I" means a measure of reliability that requires a treatment system design to provide continuous satisfactory operation during power failures, flooding, peak loads, equipment failure, and maintenance shut-down. For the purposes of this chapter, continuous operability shall be defined as restoring proper operation or otherwise eliminating the out-of-compliance discharge within 24 hours. This class includes design features, such as additional electrical power sources, additional flow storage capacity, and additional treatment units that provide operation in accordance with the issued permit requirements.

"Reliability Class II" means a measure of reliability that requires a treatment design that limits out-of-compliance discharges due to power failures, flooding, peak loads, equipment failure, and maintenance shut-down to less than 36 hours. This class includes design features such as alarms with telemetry to the operator, additional treatment units, or additional flow storage capacity that provide operation in accordance with the issued permit requirements.

"Reliability Class III" means a measure of reliability that requires a treatment design that limits out-of-compliance discharges due to power failures, flooding, peak loads, equipment failure, and maintenance shut-down to less than 48 hours. This class includes design features such as onsite alarms and owner initiated operator notification to address the alarm condition to provide operation in accordance with the issued permit requirements.

"Sanitary survey" means an investigation of any condition that may affect public health.

"Sewage" means water carried and nonwater carried human excrement, kitchen, laundry, shower, bath, or lavatory wastes separately or together with such underground, surface, storm, and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments, or other places.

"Site sketch" means a scale drawing of a proposed site for a discharge system, with pertinent distances shown. The scale shall typically be 1" = 50' for lots of three acres or less and 1" = 100' for larger lots. Site sketches may be made by the homeowner or any agent for the homeowner.

"Surface waters" means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds and the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. That are or could be used by interstate or foreign travelers for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. That are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as surface waters under this definition;

5. Tributaries of waters identified in subdivisions 1 through 4 of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters, other than water that are themselves wetlands, identified in subdivisions 1 through 6 of this definition.

"SWCB" means the State Water Control Board and its designees.

"Total suspended solids" or "TSS" means solids in effluent samples that can be removed readily by standard filtering procedures in a laboratory and expressed as mg/l.

"Treatment level 2 effluent" or "TL-2 effluent" means effluent that has been treated to produce BOD₅ and TSS concentrations less than or equal to 30 mg/l each.

"Treatment level 3 effluent" or "TL-3 effluent" means effluent that has been treated to produce BOD₅ and TSS concentrations less than or equal to 10 mg/l each.

"Treatment system" means the combination of treatment components that together produce the required quality of effluent.

"Variance" means a conditional waiver of a specific regulation that is granted to a specific owner relating to a specific situation or facility and may be for a specified time period.

"VPDES permit" means a Virginia Pollutant Discharge Elimination System permit issued by the SWCB under the authority of the federal NPDES program.

"Water well" or "well" means any artificial opening or artificially altered natural opening, however made, by which ground water is sought or through which ground water flows under natural pressure or is intended to be artificially drawn. This definition shall not include wells drilled for the following purposes: (i) exploration or production of oil or gas, (ii) building foundation investigation and construction, (iii) elevator shafts, (iv) grounding of electrical apparatus, or (v) the modification or development of springs.

"Wetlands" means those areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

Part I
General Framework for Regulations
Article 1
General Provisions

12VAC5-640-10. Authority for regulations. (Repealed.)

Title 32.1 of the Code of Virginia and specifically §§ 32.1-12, 32.1-163, and 32.1-164 provide that the State Board of Health, hereinafter referred to as the board, has the duty to protect the public health and the environment. In order to discharge this duty, the board is empowered to supervise and regulate the construction, location and operation of alternative discharging sewage treatment systems with flows less than or equal to 1,000 gallons per day on a yearly average for an individual single family dwelling within the Commonwealth when such a system is regulated by the Virginia State Water Control Board pursuant to a Virginia Pollutant Discharge Elimination System General Permit.

12VAC5-640-20. Purpose of regulations.

Title 32.1 of the Code of Virginia and specifically §§ 32.1-12, 32.1-163, and 32.1-164 of the Code of Virginia provide that the board has the duty to protect the public health and the environment. In order to discharge this duty, the board is empowered to supervise and regulate the construction, location, and operation of alternative discharging sewage treatment systems with flows less than or equal to 1,000 gallons per day on a monthly average for an individual single family dwelling within the Commonwealth when such a system is regulated by the Virginia State Water Control Board pursuant to a Virginia Pollutant Discharge Elimination System General Permit.

These regulations have been promulgated by the State Board of Health to:

1. Ensure that discharging systems are permitted, constructed, and operated in a manner which protects the environment and protects the public welfare, safety and health;

2. Guide the State Health Commissioner commissioner in his determination of whether a permit for construction and operation of a discharging system should be issued or denied;

3. Guide the owner or his agent in the requirements necessary to secure a permit for construction of a discharging system;

4. Guide the owner or his agent in the requirements necessary to secure an operation permit following construction;

5. Guide the owner or his agent in the requirements necessary to operate and maintain a discharging system;

6. Guide the State Health Commissioner commissioner in his determination of whether a discharging system is being operated in a manner which protects public health and the environment; and

7. Guide the State Health Commissioner commissioner in his determination of what actions are appropriate to correct violations of this chapter.

12VAC5-640-30. Scope of regulations.

A. Systems served. This chapter applies to all alternative discharging sewage treatment systems constructed and operated to serve an individual single family dwelling with flows less than or equal to 1,000 gallons per day on a yearly monthly average. This includes the following systems:

1. New construction. All new discharging systems described above when such system is systems are regulated by the State Water Control Board pursuant to a Virginia Pollutant Discharge Elimination System General Permit.

2. Existing systems with individual VPDES permits. All existing discharging sewage treatment systems, as described above, constructed prior to July 30, 1992, and which were permitted by the State Water Control Board under its individual VPDES permit program shall be governed by this chapter, except as to for the monitoring requirements noted below, effective upon the expiration date of their individual VPDES permit and approval of the owner's registration statement by the SWCB under the General Permit. Upon approval under the General Permit, the owners of such systems need only to comply with the monitoring requirements of the General Permit and the monitoring requirements in 12VAC5-640-510, and not 12VAC5-640-490 and 12VAC5-640-500, until (i) a change in ownership or (ii) the discharging system violates the effluent limitations of the General Permit for two consecutive quarters, whichever occurs first. After either event, the owner shall comply with 12VAC5-640-490 and 12VAC5-640-500.

3. Existing systems without individual VPDES permits. All existing discharging sewage treatment systems as described above which that were operating without a valid VPDES permit on July 30, 1992, shall be governed by this chapter after the owner receives registration statement approval from the SWCB under the General Permit.

B. Upgrading of existing systems. Location criteria contained in this chapter shall not apply to systems legally installed prior to this chapter July 30, 1992. When extensive repairs, modifications, or replacement are required to bring a system into compliance with the discharge requirements of the General Permit, a construction permit and temporary operation permit must be obtained by the system owner. The construction permit and temporary operation permit shall be valid for the time specified on its face, at which time the repairs, modifications, or replacement must be completed.

C. Requirements for an operation and maintenance manual contained in this chapter shall only apply to alternative discharging systems with construction applications filed on or after (insert the effective date of this chapter).

C. Evaluation of other options required. D. The department will not issue a permit to construct a discharging system, unless all options for conventional and alternative onsite sewage treatment and disposal systems have been evaluated and found unsatisfactory in accordance with this section. The For the purposes of this section, the consideration of all options include means site evaluation(s) conducted by the department and when appropriate, a report prepared by a person having a special knowledge of soil science as defined in § 54.1-2200 of the Code of Virginia and the methods and principles of soil evaluation as acquired by education or experience in the formation, description and mapping of soils or a licensed onsite soil evaluator or professional engineer indicating that no sewage disposal site exists on that property for the site and soil conditions allowed under the Sewage Handling and Disposal Regulations (12VAC5-610) or its successor including the use of TL-2 and TL-3 effluent to reduce footprint area as allowed under 12VAC5-613 or its successor. Options include a conventional onsite septic system using a pump, low pressure distribution (LPD), or an elevated sand mound or other systems which may be approved by the department under the Sewage Handling and Disposal Regulations, 12VAC5-600-10 et seq.

E. Pursuant to § 32.1-163.6 of the Code of Virginia, this chapter establishes performance requirements and horizontal setbacks for alternative discharging systems that are necessary to protect public health and the environment.

12VAC5-640-40. Relationship to the Virginia Sewage Handling and Disposal Regulations.

This chapter is supplemental to the Sewage Handling and Disposal Regulations (12VAC5-600-10 et seq.) which (12VAC5-610) or its successor that govern the treatment and disposal of sewage utilizing onsite systems. The Sewage Handling and Disposal Regulations shall govern the materials and construction practices used to install alternative discharging sewage treatment systems and all appurtenances associated with systems including but not limited to pipes and fittings whenever specifications are not contained in this chapter.

12VAC5-640-50. Relationship to the proposed Sewage Collection and Treatment Regulations. (Repealed.)

The proposed Sewage Collection and Treatment Regulations, upon final adoption, shall be used to establish design and construction criteria for systems, and portions of systems, not otherwise explicitly regulated within this chapter or the Sewage Handling and Disposal Regulations, 12VAC5-610-10 et seq. Prior to the adoption of the Sewage Collection and Treatment Regulations, the Sewerage Regulations, 12VAC5-580-10 et seq., shall be used in their place.

12VAC5-640-60. Relationship to the State Water Control Board.

This chapter contains administrative procedures and construction, location, monitoring and maintenance requirements which are supplementary to the State Water Control Board's VPDES General Permit Regulation for domestic sewage discharges less than or equal to 1,000 gallons per day. This chapter applies only to individual single family dwellings with flows less than or equal to 1,000 gallons per day on a yearly monthly average registered under this General Permit. Single family dwellings are a subset of the systems regulated by the State Water Control Board under this General Permit.

12VAC5-640-70. Relationship to the Uniform Statewide Building Code.

This chapter is independent of, and in addition to, the requirements of the Uniform Statewide Building Code (13VAC5-63). All persons having obtained a construction permit under this chapter shall furnish a copy of the permit to the local building official, upon request, when making application for a building permit. Prior to obtaining an occupancy permit, an applicant shall furnish the local building official with a copy of the operation permit demonstrating the system has been inspected and approved by the district or local health department.

12VAC5-640-80. Administration of regulations.

This chapter is administered by the following:

1. The State Board of Health has the responsibility to promulgate, amend, and repeal regulations necessary to ensure the proper construction, location, and operation of alternative discharging systems.

2. The State Health Commissioner, hereinafter referred to as the commissioner, is the chief executive officer of the State Department of Health. The commissioner has the authority to act, within the scope of regulations promulgated by the board, and for the board when it is not in session. The commissioner may delegate his powers under this chapter in writing to any subordinate, with the exception of (i) his power to issue variances under § 32.1-12 of the Code of Virginia and 12VAC5-640-170, and (ii) his power to issue orders under § 32.1-26 of the Code of Virginia and 12VAC5-640-140 and 12VAC5-640-150, and (iii) the power to suspend or revoke construction and operation permits under 12VAC5-640-280, which may only be delegated pursuant to 12VAC5-640-330. The commissioner has final authority to adjudicate contested case decisions of subordinates delegated powers under this section prior to appeal of such case decisions to the circuit court.

3. The State Department of Health, hereinafter referred to as the department, is designated as the primary agent of the commissioner for the purpose of administering this chapter.

4. The district or local health departments are responsible for implementing and enforcing the regulatory activities required by requirements of this chapter.

Article 2
Definitions

12VAC5-640-100. Definitions. (Repealed.)

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

"Aerobic treatment unit" or "ATU" means any mechanical sewage treatment plant, designed to treat sewage from a single family dwelling utilizing the process of extended aeration with or without a means to return sludge to the aeration chamber.

"Agent" means a legally authorized representative of the owner.

"All weather stream" means any stream which will, at all times, dilute point source discharge effluent (from a pipe) at least 10:1 as measured during a 7 consecutive day average of a 10 year low flow (7-Q-10).

"Alternative discharging sewage treatment system" or "discharging system" means any device or system which results in a point source discharge of treated sewage for which the Department of Health may issue a permit authorizing construction and operation when such system is regulated by the SWCB pursuant to a general VPDES permit issued for an individual single family dwelling with flows less than or equal to 1,000 gallons per day on a yearly average. Such a system is designed to treat sewage from a residential source and dispose of the effluent by discharging it to an all weather stream, an intermittent stream, a dry ditch, or other location approved by the department.

"Commissioner" means the State Health Commissioner or his subordinate who has been delegated powers in accordance with 12VAC5-640-80 2 of this chapter.

"Disinfection" means the reduction of pathogenic organisms to a level that complies with the discharge limits of the general permit.

"District health department" means a consolidation of local health departments as authorized in § 32.1-31 C of the Code of Virginia.

"Division" means the Division of Sanitarian Services.

"Dry ditch" means a naturally occurring (i.e., not man made) swale or channel which ultimately leads to an all weather stream. A dry ditch may have observable flow during or immediately after a storm event or snow melt. For the purposes of this chapter all dry ditches shall have a well defined natural channel with sides that have at least a 1:10 (rise:run) slope.

"Family" means the economic unit which shall include the owner, the spouse of the owner, and any other person actually and properly dependent upon or contributing to the family's income for subsistence.

A husband and wife who have been separated and are not living together, and who are not dependent on each other for support, shall be considered separate family units.

The family unit which is based on cohabitation is considered to be a separate family unit for determining if an application fee is waiverable. The cohabitating partners and any children shall be considered a family unit.

"Failing alternative discharging sewage treatment system" means any alternative discharging sewage treatment system which either fails to discharge due to exfiltration or discharges effluent having a BOD₅ suspended solids, pH, chlorine residual, dissolved oxygen or fecal coliform greater than allowed by the General Permit as measured at the outfall. However, chlorine residual and dissolved oxygen content shall not be used for the purposes of determining whether a particular class of discharging systems complies with the requirements of 12VAC5-640-380.

"Failing onsite sewage disposal system" means an onsite sewage disposal system that is backing up in a house, or is discharging untreated or partially treated effluent on the ground surface, into surface waters, or into ground water.

"Five-day biochemical oxygen demand (BOD₅)" means the quantity of oxygen used in the biochemical oxidation of organic matter in five days at 20°C under specified conditions and expressed as milligrams per liter (mg/l).

"General Permit" means a Virginia Pollutant Discharge Elimination System ("VPDES") General Permit for domestic sewage discharges less than or equal to 1,000 gallons per day on a yearly average issued by the State Water Control Board.

"Generic system design" means nonsite specific plans and specifications for a system designed to treat sewage flows of 1,000 GPD or less, or an equivalent BOD₅ loading rate, which have been reviewed and approved by the division for uses governed by this chapter.

"Income" means total cash receipts of the family before taxes from all sources. These include money wages and salaries before any deductions, but do not include food or rent in lieu of wages. These receipts include net receipts from nonfarm or farm self-employment (e.g., receipts from own business or farm after deductions for business or farm expenses). They include regular payments from public assistance (including Supplemental Security Income), social security or railroad retirement, unemployment and worker's compensation, strike benefits from union funds, veterans' benefits, training stipends, alimony, child support, and military family allotments or other regular support from an absent family member or someone not living in the household; private pensions, government employee pensions, and regular insurance or annuity payment; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. These receipts further include funds obtained through college work study programs, scholarships, and grants to the extent said funds are used for current living costs. Income does not include the value of food stamps, WIC checks, fuel assistance, money borrowed, tax refunds, gifts, lump sum settlements, inheritances or insurance payments, withdrawal of bank deposits, earnings of minor children, or money received from the sale of property. Income also does not include funds derived from college work study programs, scholarships, loans, or grants to the extent such funds are not used for current living costs.

"Intermittent sand filter system" means a system designed to treat sewage by causing the sewage to be dosed through a properly designed bed of graded sand media.

"Intermittent stream" means any stream which cannot, at all times, dilute point source discharge effluent (from a pipe) at least 10:1 as measured during a 7 consecutive day average of a 10 year low flow (7-Q-10).

"Local health department" means the department established in each city and county in accordance with § 32.1-30 of the Code of Virginia.

"Onsite sewage disposal system" means a sewerage system or treatment works designed not to result in a point source discharge.

"Owner" means any person, who owns, leases, or proposes to own or lease an alternative discharging sewage treatment system.

"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the law of this Commonwealth or any other state or country.

"Proprietary system design" means any group of discharging sewage treatment systems manufactured and installed following substantially similar engineering plans and specifications designed to treat a specific volume of sewage or BOD₅ loading rate as determined by the division.

"Pump and haul" means the temporary (less than one year) disposal of sewage conducted under a valid pump and haul permit issued in accordance with the Sewage Handling and Disposal Regulations.

"Recirculating sand filter system" means a system which treats sewage effluent by repeatedly passing the sewage through a pump chamber and sand filter to achieve alternating wetting and drying cycles.

"Sanitary survey" means an investigation of any condition that may effect public health.

"Settleable solids" means solids which settle after 30 minutes and expressed as milligrams per liter (mg/l).

"Sewage" means water carried and nonwater carried human excrement, kitchen, laundry, shower, bath, or lavatory wastes separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.

"Sewer" means any sanitary or combined sewer used to convey sewage or municipal or industrial wastes.

"Site sketch" means a scale drawing of a proposed site for a discharge system, with pertinent distances shown. The scale shall typically be 1" = 50' for lots of three acres or less and 1" = 100' for larger lots. Site sketches may be made by the homeowner or any agent for the homeowner.

"Subdivision" means multiple building lots derived from a parcel(s) of land in conformance with local zoning or subdivision requirements.

"Subsurface soil absorption" means a process which utilizes the soil to treat and dispose of sewage effluent.

"SWCB" means the State Water Control Board and its designees.

"Total suspended solids" means solids in effluent samples which can be removed readily by standard filtering procedures in a laboratory and expressed as mg/l.

"Variance" means a conditional waiver of a specific regulation which is granted to a specific owner relating to a specific situation or facility and may be for a specified time period.

"VPDES permit" means a Virginia Pollutant Discharge Elimination System permit issued by the SWCB under the authority of the federal NPDES program.

"Well" means any artificial opening or artificially altered natural opening, however made, by which ground water is sought or through which ground water flows under natural pressure or is intended to be artificially drawn; provided this definition shall not include wells drilled for the following purposes: (i) exploration or production of oil or gas, (ii) building foundation investigation and construction, (iii) elevator shafts, (iv) grounding of electrical apparatus, or (v) the modification or development of springs.

Part II
Procedural Regulations
Article 1
Procedures

12VAC5-640-110. Compliance with the Administrative Process Act.

The provisions of the Virginia Administrative Process Act (§ 9-6.14:1 2.2-4000 et seq. of the Code of Virginia) shall govern the promulgation and administration of this chapter and shall be applicable to the appeal of any case decision based upon this chapter govern the procedures pertaining to the decisions of cases under this chapter.

12VAC5-640-130. Effective date of regulations. (Repealed.)

The effective date of these regulations is July 30, 1992. Those permits issued under the emergency regulation VR355-34-400 are hereby recognized as modified, valid and covered by these regulations.

12VAC5-640-140. Emergency order.

If an emergency exists the commissioner may issue an emergency order as is necessary for preservation of public health, safety, and welfare or to protect environmental resources. The emergency order shall state the reasons and precise factual basis upon which the emergency order is issued. The emergency order shall state the time period for which it is effective. Emergency orders will be publicized in a manner deemed appropriate by the commissioner. The provisions of 12VAC5-640-150 C and D shall not apply to emergency orders issued pursuant to this section.

12VAC5-640-150. Enforcement of regulations.

A. Notice. Subject to the exceptions below, whenever Whenever the commissioner or the district or local health department has reason to believe a violation of any of this chapter has occurred or is occurring, the alleged violator shall be notified. Such notice shall be made in writing, shall be delivered personally or sent by certified mail, shall cite the regulation or regulations that are allegedly being violated, shall state the facts which form the basis for believing the violation has occurred or is occurring, shall include a request for a specific action by the recipient by a specified time and shall state the penalties associated with such violation. notifies a named party of an alleged violation of this chapter, the procedures and content of such notice shall be as follows:

1. Any notice of alleged violation shall be made in writing and shall be delivered personally or sent by certified mail to the named party.

2. The notice shall cite the regulation or regulations that are applicable to the situation.

3. The notice shall state the factual basis for the issuance of the notice.

4. The notice shall include a request for a specific action by the recipient by a specified time.

5. The notice shall include information on the process for obtaining an informal fact finding conference to determine whether or not a violation has occurred.

The issuance of a notice of alleged violation by the commissioner or the department shall not be considered a case decision as defined in § 2.2-4001 of the Code of Virginia. When the commissioner deems it necessary, he may initiate criminal prosecution or seek civil relief through mandamus or injunction prior to giving notice.

B. Orders. Pursuant to the authority granted in § 32.1-26 of the Code of Virginia, the The commissioner may issue orders in accordance with Title 32.1 (§ 32.1-1 et seq.) of the Code of Virginia to require any owner, or other person, to comply with the provisions of this chapter. The order shall be signed by the commissioner and may require:

1. The immediate cessation and correction of the violation;

2. Appropriate remedial action to ensure that the violation does not recur;

3. The submission of a plan to prevent future violation to the commissioner for review and approval;

4. The submission of an application for a variance; or

5. Any other corrective action deemed necessary for proper compliance with the chapter.

C. Hearing before the issuance of an order. Before the issuance of an order described in 12VAC5-640-150 B, a hearing must be held, with at least 30 days notice by certified mail to the affected owner or other person of the time, place and purpose thereof, for the purpose of adjudicating the alleged violation or violations of this chapter. The procedures at the hearing shall be in accordance with 12VAC5-640-180 A and B and with §§ 9-6.14:11 through 9-6.14:14 of the Code of Virginia.

D. Order - when effective. All orders issued pursuant to 12VAC5-640-150 B shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the owner or person violating this chapter. Violation of an order is a Class 1 misdemeanor. See § 32.1-27 of the Code of Virginia.

E. Compliance with effective orders. The commissioner may enforce all orders. Should any owner or other person fail to comply with any order, the commissioner may:

1. Apply to an appropriate court for an injunction or other legal process to prevent or stop any practice in violation of the order;

2. Commence administrative proceedings to suspend or revoke the applicable permit;

3. Request the Attorney General to bring an action for civil penalty, injunction, or other appropriate remedy; or

4. Request the commonwealth attorney to bring a criminal action.

F. Not exclusive means of enforcement. Nothing contained in 12VAC5-640-140 or 12VAC5-640-150 shall be interpreted to require the commissioner to issue an order prior to commencing administrative proceedings or seeking enforcement of any regulations or statute through an injunction, mandamus or criminal prosecution.

12VAC5-640-170. Variances.

Only the commissioner or the deputy commissioners may grant a variance to this chapter. (See §§ 32.1-12 and 32.1-22 of the Code of Virginia and 12VAC5-640-80 2.) The commissioner or the deputy commissioners shall follow the appropriate procedures set forth in this subsection subdivision in granting a variance.

A. Requirements for a variance. 1. The commissioner may grant a variance if a thorough investigation reveals that the hardship imposed by this chapter outweighs the benefits that may be received by the public. Further, the granting of such a variance shall not subject the public to unreasonable health risks or jeopardize environmental resources.

B. Application for a variance. 2. Any owner who seeks a variance shall apply in writing within the time period specified in 12VAC5-640-210 B C. The application shall be signed by the owner, addressed and sent to the commissioner at the State Department of Health in Richmond. The application shall include:

1. a. A citation to the regulation from which a variance is requested;

2. b. The nature and duration of the variance requested;

3. c. Any relevant analytical results including results of relevant tests conducted pursuant to the requirements of this chapter;

4. d. Statements or evidence why the public health and welfare and environmental resources would not be degraded if the variance were granted;

5. e. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare or environmental resources;

6. f. Other information, if any, believed pertinent by the applicant; and

7. g. Such other information as the district or local health department or commissioner may require.

C. Evaluation of a variance application.

1. The commissioner shall act on any variance request submitted pursuant to 12VAC5-640-170 B within 60 calendar days of receipt of the request.

2. 3. In the evaluation of a variance application, the commissioner shall consider the following factors:

a. The effect that such a variance would have on the construction, location, or operation of the discharging system;

b. The cost and other economic considerations imposed by this requirement;

c. The effect that such a variance would have on protection of the public health;

d. The effect that such a variance would have on protection of environmental resources; and

e. Such other factors as the commissioner may deem appropriate.

D. Disposition of a variance request. 4. The commissioner may grant or deny a variance request in accordance with the requirements of this subdivision.

1. a. The commissioner may deny any application for a variance by sending a denial notice to the applicant by certified mail. The notice shall be in writing and shall state the reasons for the denial.

2. b. If the commissioner proposes to grant a variance request submitted pursuant to 12VAC5-640-170 B subdivision 2 of this section the applicant shall be notified in writing of this decision. Such notice shall identify the variance, and the discharging system covered, and shall specify the period of time for which the variance will be effective. The effective date of a variance shall be as stated in the variance.

3. c. No owner may challenge the terms or conditions set forth in the variance after 30 calendar days have elapsed from the effective date of the variance.

E. Posting of variances. 5. All variances granted to any discharging sewage treatment system are transferable from owner to owner unless otherwise stated. Each variance shall be attached to the permit to which it is granted. Each variance is revoked when the permit to which it is attached is revoked.

F. Hearings on disposition of variances. 6. Subject to the time limitations specified in 12VAC5-640-210, informal conference or consultation proceedings or hearings on denials of an application for a variance or on challenges to the terms and conditions of a granted variance may be held pursuant to 12VAC5-640-180 A or B, except that informal hearings conference or consultation proceedings under 12VAC5-640-180 A shall be held before the commissioner or his designee.

12VAC5-640-180. Hearing types Informal conferences and hearings.

Hearings before the commissioner or the commissioner's designees shall include any of the following forms depending on the nature of the controversy and the interests of the parties involved.

A. Informal hearings. An informal hearing conference or consultation proceeding is a meeting with a district or local health department with the district or local health director presiding and held in conformance with § 9-6.14:11 2.2-4019 of the Code of Virginia. The department shall ascertain the fact basis for its decisions of cases through informal conference or consultation proceedings unless the named party and the department consent to waive such a conference or proceeding to go directly to a formal hearing. The district or local health department shall consider all evidence presented at the meeting which is relevant to the issue in controversy. Presentation of evidence, however, is entirely voluntary. The district or local health department shall have no subpoena power. No verbatim record need be taken at the informal hearing. The local or district health director shall review the facts presented and based on those facts render a decision. A written copy of the decision and the basis for the decision shall be sent to the appellant within 15 work days of the hearing, unless the parties mutually agree to a later date in order to allow the department to evaluate additional evidence. If the decision is adverse to the interests of the appellant, an aggrieved appellant may request an adjudicatory hearing pursuant to 12VAC5-640-180 B.

B. Adjudicatory hearing. The adjudicatory hearing is a formal, public adjudicatory proceeding before the commissioner, or a designated hearing officer, and held in conformance with § 9-6.14:12 2.2-4020 of the Code of Virginia. The commissioner may afford opportunity for an adjudicatory hearing in any case to the extent that informal procedures under § 2.2-4019 and subsection A of this section have not been had or have failed to dispose of a case by consent. An adjudicatory hearing includes the following features:

1. Notice. Notice which states the time and place and the issues involved in the prospective hearing shall be sent to the owner or other person who is the subject of the hearing. Notice shall be sent by certified mail at least 15 calendar days before the hearing is to take place.

2. Record. A record of the hearing shall be made by a court reporter. A copy of the transcript of the hearing, if transcribed, will be provided within a reasonable time to any person upon written request and payment of the cost.

3. Evidence. All interested parties may attend the hearing and submit oral and documentary evidence and rebuttal proofs, expert or otherwise, that are material and relevant to the issues in controversy. The admissibility of evidence shall be determined in accordance with § 9-6.14:12 of the Code of Virginia.

4. Counsel. All parties may be accompanied by and represented by counsel and are entitled to conduct such cross-examination as may elicit a full and fair disclosure of the facts.

5. Subpoena. Pursuant to § 9-6.14:13 of the Code of Virginia, the commissioner or hearing officer may issue subpoenas on behalf of himself or any person or owner for the attendance of witnesses and the production of books, papers or maps. Failure to appear or to testify or to produce documents without adequate excuse may be reported by the commissioner to the appropriate circuit court for enforcement.

6. Judgment and final order. The commissioner may designate a hearing officer or subordinate to conduct the hearing as provided in § 9-6.14:12 of the Code of Virginia, and to make written recommended findings of fact and conclusions of law to be submitted for review and final decision by the commissioner. The final decision of the commissioner shall be reduced to writing and will contain the explicit findings of fact upon which his decision is based. Certified copies of the decision shall be delivered to the owner affected by it. Notice of a decision will be served upon the parties and become a part of the record. Service may be by personal service or certified mail return receipt requested.

12VAC5-640-190. Request for hearing. (Repealed.)

A request for an informal hearing shall be made by sending the request in writing to the district or local health department. A request for an adjudicatory hearing shall be made in writing and directed to the commissioner at the State Department of Health in Richmond. Requests for hearings shall cite the reason(s) for the hearing request and shall cite the section(s) of this chapter involved.

12VAC5-640-200. Hearing as a matter of right. (Repealed.)

Except as provided in 12VAC5-640-330, any owner or other person whose rights, duties, or privileges have been, or may be affected by any decision of the board or its subordinates in the administration of this chapter shall have a right to both informal and adjudicatory hearings. The commissioner may require participation in an informal hearing before granting the request for a full adjudicatory hearing. Exception: No person other than an owner shall have the right to an adjudicatory hearing to challenge the issuance of either a construction permit or operation permit unless the person can demonstrate at an informal hearing that the minimum standards contained in this chapter have not been applied and that he will be injured in some manner by the issuance of the permit.

12VAC5-640-210. Appeals.

A. Any appeal from a denial of a construction or operation permit for a discharging system must be made in writing and received by the department within 60 30 days of the date of the denial.

A. B. Any request for hearing on appeal from the denial of an application for a variance pursuant to subdivision 4 a of 12VAC5-640-170 D 1 must be made in writing and received within 60 30 days of receipt of the denial notice.

B. C. Any request for a variance must be made in writing and received by the department prior to the denial of the discharging system permit, or within 60 30 days after such denial.

C. D. In the event a person applies for a variance within the 60-day 30-day period provided by subsection B above C of this section, the date for appealing the denial of the permit, pursuant to subsection A of this section, shall commence from the date on which the department acts on the request for a variance.

D. E. Pursuant to the Administrative Process Act (§ 9-6.14:1 2.2-4000 et seq. of the Code of Virginia) an aggrieved owner may appeal a final decision of the commissioner to an appropriate circuit court.

12VAC5-640-220. Permits; general.

A. Construction permit required. After July 30, 1992, no No person shall construct, alter, rehabilitate, modify, or extend a discharging system or allow the construction, alteration, rehabilitation, or extension of a discharging system, without a written construction permit from the commissioner or the department. Furthermore, except as provided in 12VAC5-640-30 A 2 and 12VAC5-640-220 B, no person or owner shall cause or permit any discharging system to be operated without a written operation permit issued by the commissioner which authorizes the operation of the discharging system. Conditions may be imposed on the issuance of any construction or operation permit and no discharging system shall be constructed or operated in violation of those conditions.

B. Except as provided in 12VAC5-640-30, 12VAC5-640-280, and 12VAC5-640-290, construction permits for a discharging system shall be deemed valid for a period of 60 months from the date of issuance or until the expiration of the General Permit, whichever comes first.

B. Operation permit required. C. Except as provided in 12VAC5-640-310 12VAC5-640-30 A 2 and 12VAC5-640-266, no person shall place a discharging system in operation, or cause or allow a discharging system to be placed in operation, without obtaining a written operation permit. Conditions may be imposed on the issuance of any operation permit, and no discharging system shall be operated in violation of those conditions.

C. Construction permits validity. Except as provided in 12VAC5-640-30, 12VAC5-640-280 and 12VAC5-640-290, construction permits for a discharging system with general or preliminary system approval shall be deemed valid for a period of 54 months from the date of issuance. Construction permits for discharging systems with experimental approval shall be valid for 30 days except as provided in 12VAC5-640-30, 12VAC5- 640-280 and 12VAC5-640-290.

D. Operation permit validity. Except as provided for in 12VAC5-640-280 and 12VAC5-640-290, operation permits shall be valid for a period of time not longer than the General Permit and the maintenance contract required pursuant to 12VAC5-640-500 B or the monitoring contract required pursuant to 12VAC5-640-490 F G, whichever expires first. The operation permit may be renewed shall remain valid upon written proof of a new or renewed maintenance contract or monitoring contract provided they are all valid for not less than 24 months the facility is otherwise in compliance with this chapter. The period of renewal shall coincide with the expiration date of the document with the shortest period of validity.

E. Permits not transferable. Construction and operation permits for discharging systems shall not be transferable from one person to another or from one location to another. Each new owner shall make a written application for a permit. Application forms are available at all local health departments except as provided below:

1. A construction permit for a specific discharging system will be issued to a new owner if the new owner (i) applies for the permit transfer on a form approved by the department, (ii) pays the applicable fee, (iii) provides the department with change of ownership documentation in accordance with the General Permit, and (iv) provides written certification that there are no new site conditions that will adversely impact the existing approved construction permit and documents or the original construction application.

2. An operation permit for a specific discharging system will be issued to a new owner if the new owner (i) applies for the permit transfer on a form approved by the department, (ii) pays the applicable fee, (iii) provides the department with change of ownership documentation in accordance with the General Permit, and (iv) provides a copy of a valid maintenance and monitoring contract as required.

12VAC5-640-230. Procedures Application process for obtaining a construction permit Department of Environmental Quality General Permit using the Combined Application.

The process for obtaining a construction permit for a discharging system consists of two steps. These are filing an application with fee to determine the suitability of a site and filing plans for the type of system being proposed.

A. Application fees. A fee of $50 shall be charged to the owner for filing an application for an alternative discharging sewage treatment system permit with the department. The fee shall be paid to the Virginia Department of Health by the owner or his agent at the time of filing the application and the application shall not be processed until the fee has been collected. Applications shall be limited to one site specific proposal. When site conditions change, or the needs of an applicant change, or the applicant proposes and requests another site be evaluated, and a new site evaluation is conducted, a new application and fee are required.

1. Waiver of fees. An owner whose income of his family is at or below the 1988 Poverty Income Guidelines For All States (Except Alaska and Hawaii) And The District of Columbia established by the Department of Health and Human Services, 53 FR 4213 (1988), or any successor guidelines, shall not be charged a fee for filing an application for an alternative discharging sewage treatment system permit.

2. Determining eligibility.

a. An owner seeking a waiver of an application fee shall request the waiver on the application form. The department will require information as to income, family size, financial status and other related data. The department shall not process the application until final resolution of the eligibility determination for waiver.

b. It is the owner's responsibility to furnish the department with the correct financial data in order to be appropriately classified according to income level and to determine eligibility for a waiver of an application fee. The owner shall be required to provide written verification of income such as check stubs, written letter from an employer, W-2 forms, etc., in order to provide documentation for the application.

c. The proof of income must reflect current income which is expected to be available during the next 12-month period. Proof of income must include: name of employer, amount of gross earnings, pay period for stated earnings. If no pay stub, a written statement must include the name, address, telephone number and title of person certifying the income.

A. The process for obtaining a General Permit consists of (i) filing a Combined Application with fee to determine the suitability of a discharge point, (ii) obtaining confirmation of a suitable discharge point from the department, and (iii) obtaining coverage under the Department of Environmental Quality's General Permit. Once a General Permit registration has been received, the owner shall file an application for a construction permit as described in 12VAC5-640-240 and shall apply for an operation permit in accordance with 12VAC5-640-266 before a discharge is authorized.

B. Written application required. Construction permits are issued by the authority of the commissioner. All requests for construction permits review of a suitable discharge point for discharging systems shall be by written application on the Combined Application, signed by the owner or his agent, and shall be directed to the district or local health department. All applications shall be made on the application form (Virginia Department of Health Discharging System Application Form for Single Family Dwellings Discharging Sewage Treatment Systems with Flows Less Than or Equal To 1,000 Gallons Per Day and State Water Control Board Virginia Pollutant Discharge Elimination System General Permit Registration Statement for Domestic Sewage Discharge Less Than or Equal to 1,000 Gallons Per Day).

C. Application completeness. An application shall be deemed complete upon receipt by the district or local health department of a signed and dated application, together with and the appropriate fee, containing the following information:

1. The property owner's name, address, and telephone number;

2. The applicant's name, address, and phone number (if different from subdivision 1 of this subsection);

3. A statement signed by the property owner, or his agent, granting the Health Department department access to the site for the purposes of evaluating the suitability of the site for a discharging system and allowing the department access to inspect the construction, maintenance and operation of the discharging system after it is installed. The applicant must secure and produce written permission for the department to enter on any property necessary to evaluate the application;

4. A site sketch on a survey plat showing the location of existing or proposed houses, property boundaries, existing and proposed wells, actual or proposed discharging systems within 600 feet of the discharge point, recorded easements, the slope and side slope of any proposed dry ditch channels, setback distances of proposed system components (such as ATU's, sandfilters, and dry ditches) to property lines, wells and other discharging systems public water supply intakes, and swimming or recreational water use areas within five miles. The drawing should be approximately to scale (plus or minus 10%) or drawn on a United States Geological Survey 7.5 minute topographic map; locations of and setback distances from the proposed discharge point and discharging system components to the following:

a. Location of existing or proposed houses and other structures;

b. Property boundaries;

c. Location of proposed discharge point;

d. Existing and proposed wells, springs, cisterns, or other sources of potable water within 200 feet upslope or 1,600 feet downslope of the proposed discharge point;

e. Actual or proposed discharging systems within 600 feet of the proposed discharge point;

f. Recorded and proposed easements;

g. Existing and proposed overhead and buried utilities such as water lines, electrical lines, phone lines, gas lines, etc;

h. Sink holes located within 1,600 feet downslope of the proposed discharge point;

i. Other topographical features such as wetlands, lakes, ponds, rivers, streams, drainage ways, and swales, within 200 feet upslope and 600 feet downslope of the proposed discharge point;

j. Slope and side slope of any proposed dry ditch channels;

k. Public water supply intakes; and

l. Swimming or recreational water use areas within one mile upstream or five miles downstream of the proposed discharge point shown on a United States Geological Survey 7.5 minute topographic map or surveyed plat.

The site sketch should be to scale and accompanied by a United States Geological Survey 7.5 minute topographic map to provide information relevant to offsite setbacks.

5. A written statement from the SWCB that the owner's registration statement has been approved under the General Permit regulation;

6. 5. Copies of all easements required by subdivision 2 of 12VAC5-640-450 B; however, at the discretion of the department district health director or the district sanitarian, the submission of easements may be postponed until submission of the construction plan if the property owner submits the name, address, and property location of each person that must grant an easement to the owner; and

6. If the discharge is to a wetlands, the application must contain a wetland delineation map of the geographic area for wetlands, stream, and open water on site and any other correspondence, approval, or certifications from the U.S. Army Corps of Engineers or the Department of Environmental Quality that wetlands were properly identified and delineated;

7. A letter of denial from the department or a certified site and soil evaluation report from a qualified person showing that the requirements of 12VAC5-640-30 D have been satisfied; and

7. 8. Other information which that the department deems necessary to comply with the intent of this chapter.

D. Application assistance. It is the policy of the department to assist persons applying for a discharging system permit by maintaining a supply of all appropriate forms in each local office. Department personnel will assist individuals in understanding how to fill out the form and provide information on the administrative process and technical requirements involved in obtaining a permit.

E. Site review. D. Upon receipt of a completed Combined Application application the department will conduct a site review to determine if the site meets the minimum siting criteria contained in Part III (12VAC5-640-390 et seq.) of this chapter. The owner may opt to have a licensed professional engineer conduct the site review and submit appropriate documentation with the application for review by the department. The department may opt to conduct a site review to verify an application submitted by a licensed professional engineer. Upon completing conducting the site evaluation or upon reviewing the site evaluation conducted by a licensed professional engineer, the department will advise the owner in writing of the results of the evaluation.

1. Satisfactory site found. When a satisfactory site is found for a discharging system, the written notice to the applicant shall include the type of discharge point found (i.e., wetland, all weather stream, intermittent stream, or dry ditch). The completed Combined Application and a copy of the documentation pursuant to 12VAC5-640-30 D shall be forwarded to the Department of Environmental Quality to complete the application process for a General Permit.

2. No satisfactory site found. When no satisfactory discharge point site is found the department shall deny the application in accordance with 12VAC5-640-270 owner shall be notified of all limiting factors restricting the use of a discharging system. Further, the applicant shall be notified of his right to appeal and what steps are necessary to initiate the process. The department shall send a copy of the denial to the Department of Environmental Quality.

12VAC5-640-240. Construction plan Application for a construction permit.

A. After a satisfactory site for a discharging system has been found and a General Permit has been obtained from the Department of Environmental Quality, the applicant shall submit a construction plan an application, the appropriate fee, construction plans, specifications, design criteria and calculations, and documentation that coverage under the General Permit has been obtained. The documentation shall include the cover letter and copy of the General Permit issued by the Department of Environmental Quality. If the discharge is to a wetland, the construction submittal must include documentation that a Virginia Water Protection Permit from the Department of Environmental Quality or a permit under the U.S. Army Corps of Engineers has been obtained as needed. The purpose of the construction plan submittal is to demonstrate how the effluent limitations established by the SWCB and the remaining criteria construction, location, and performance requirements of this chapter can be met. At a minimum the construction plan must show the following:

B. All plans for alternative discharging systems shall bear a suitable title showing the name of the owner and shall show the scale in feet, a graphical scale, the north point, date, revision dates (when applicable), and the name of the licensed professional engineer by or under whom prepared. The cover sheet and each plan sheet shall bear the same general title identifying the overall sewage disposal project and each shall be numbered. Appropriate subtitles shall be included on the individual sheets.

The plans shall be clear and legible. Plans shall be drawn to a scale that permits all necessary information to be plainly shown. The size of the plans shall be no larger than 30 inches by 48 inches. Data used should be indicated. The precise location of the proposed system shall be shown on the plans. Detailed plans shall consist of plan views, elevations, sections, and supplementary views that together with the specifications and general layouts provide the working information for the contract and construction of the work, including dimensions and relative elevations of structures, the location and outline form of equipment and components to be installed, the location and size of piping, water levels, ground elevations, and erosion control abatement facilities.

C. Complete technical specifications for the construction of the alternative discharging system and all appurtenances shall accompany the plans. The specifications accompanying construction drawings shall include, but not be limited to, all construction information not shown on the drawings, necessary to provide the installer with all detail of the design requirements as to the quality of material workmanship and fabrication of the project; type, size, strength, operating characteristics, and rating of equipment; allowable infiltration, machinery, valves, piping, and jointing of pipe; electrical apparatus, wiring, and meters; operating tools and construction materials; special filter materials such as stone, sand, gravel, or slag; miscellaneous appurtenances; chemicals when used; instructions for testing materials and equipment deemed necessary to meet design standards; and operational testing for the complete works and component units.

D. At a minimum, the construction submittal must show the following:

1. Information gathered in the site review evaluation;

1. Type of system. The 2. For each system component, the plan shall note the type of system component and, where applicable, the manufacturer, model number, NSF approval and, status in accordance with 12VAC5-640-432, hydraulic capacity, and capacity in pounds of BOD₅ per day treatment capacity;

2. Location 3. The specific location of the property including the county tax map number (where available), a copy of the United States Geological Survey 7.5 minute topographic map showing the discharge point and down stream downstream for one mile, and directions to the property;

3. Grades 4. The elevation of the house sewer line where it exits the house and the elevation of the inlet and outlet ports or tees on all treatment units. Where discharges are to dry ditches or intermittent streams the site plan shall show the elevation of the discharge point, the point 500' downgrade from the discharge point and points every 50 feet between the discharge point and 500' downstream. This requirement may be met by drawing a flow diagram showing all elements listed above;

4. Distances. 5. The distance between all elevation points required by 12VAC5-640-240 3 D 4 so that the grade and setback distances can be established;

5. Pump specifications 6. If a pump is proposed, specifications must be provided which that include the manufacturer, model number, and a pump curve with a system curve overlain on the pump curve;

6. Flood plain 7. The location of the 100-year flood plain. All portions of a discharging system, except for the discharge pipe and step type post aeration, if required, shall be located above the 100-year flood plain;

7. Plans and specifications. Plans and specifications showing compliance 8. Compliance with subsections B through N (inclusive) of 12VAC5-640-470 12VAC5-640-430 through 12VAC5-640-470; and

9. Other information as deemed appropriate by the department to verify the design.

12VAC5-640-250. Issuance of the construction permit.

A construction permit shall be issued to the owner by the commissioner or the department after receipt and review of a complete application submitted under 12VAC5-640-230 and 12VAC5-640-240, a satisfactory site and construction plan review, and approval under 12VAC5-640-240 verification of issuance of a General Permit from the Department of Environmental Quality. The construction permit shall note whether the permitted system has experimental, preliminary, or general approval or is not in accordance with 12VAC5-640-432. Further, the construction permit will indicate that the operation and maintenance of the system is the owner's responsibility and that discharges in excess of the limits established by the General Permit, now or in the future, may cause the department to mandate the repair, expansion or replacement of the discharging system.

12VAC5-640-260. Exception for failing onsite sewage disposal systems.

When a failing onsite sewage disposal system is identified, and the site location criteria in this chapter cannot be met, the site location criteria in Article 1 of Part III and 12VAC5-640-240 F, 12VAC5-640-470 H and the dimensions of the easement specified in 12VAC5-640-450 B of this chapter may be waived, provided the following conditions are met.

When a failing onsite sewage disposal system is identified and the site location criteria in 12VAC5-640-400, 12VAC5-640-410, 12VAC5-640-420, and 12VAC5-640-470 H, and the dimensions of the easement specified in subdivision 2 of 12VAC5-640-450 cannot be met, the department may issue a written waiver that specifies the criteria that are being waived and the rationale for the waiver. In order to obtain this waiver, the owner must provide a written request for the waiver that includes justification and specifies any mitigating measures used to offset the reduced site conditions. The following conditions must apply in order for the waiver to be considered:

A. Reduce health hazard or environmental impact.

1. The issuance of a discharging system permit will reduce an existing health hazard or will improve or negate environmental impacts associated with the existing discharge. This determination shall be made by the district health director or the district sanitarian manager department.

B. No increase in waste load.

2. There will be no increase in the waste load generated by any additions to the dwelling except when necessary to provide for minimum facilities necessary for good sanitation. The minimum facilities for a single family dwelling are: a water closet, a bathroom sink, a bathtub or shower or both, and a kitchen sink. More than one bathroom may be added to a dwelling provided the potential occupancy of the structure is not increased.

C. Minimum facilities.

3. Where a failing onsite sewage disposal system already has more than the minimum facilities described above, the discharging system may be designed and permitted to accommodate the entire existing sewage flow. In no event shall the system designed and permitted exceed the existing sewage flow unless all conditions and criteria of this chapter are met.

12VAC5-640-262. Statements required upon completion of construction.

A. Upon completion of the construction, alteration, or rehabilitation of a discharging system, the owner or agent shall submit to the department a completion statement signed by the contractor responsible for the construction and a completion statement signed by the licensed professional engineer responsible for the design, upon forms approved by the department, that the system was installed and constructed in accordance with the construction permit and complies with all applicable state and local regulations, ordinances, and laws. These completion statements shall be based upon inspections of the treatment works during and after construction or modification that are adequate to ensure the truth of the statements. Should the treatment works be modified from the approved construction plan, the licensed professional engineer shall submit as built drawings documenting the changes. The licensed professional engineer's completion statement shall certify that the treatment works as modified will comply with all applicable state and local regulations, ordinances, and laws.

B. No discharging system shall be placed in operation, except for the purposes of testing the mechanical soundness of the system, until an operation permit is issued by the department in accordance with 12VAC5-640-266.

12VAC5-640-264. Operation and maintenance manual.

A. Prior to issuance of the operation permit, the owner shall submit an operation and maintenance (O&M) manual for the discharging system. The general purpose of the manual is to present both technical guidance and regulatory requirements to facilitate operation and maintenance of the discharging system for both normal conditions and generally anticipated adverse conditions. The manual shall be designed as a reference document, being as brief as possible while presenting the information in a readily accessible manner. The manual shall be tailored to the specific system. The manual must state the minimum required frequencies for routine maintenance, operation, sampling, and monitoring frequencies in this chapter, but additional maintenance visits, sampling, and monitoring may be added as needed, depending on the design of the system. The manual should reflect the minimum operation and maintenance activities required to properly maintain the system and ensure compliance with the General Permit requirements.

B. The manual shall include the following minimum items:

1. Basic information relevant to the discharging system design including treatment unit capacities, pump operating conditions, a list of the components comprising the discharging system, a dimensioned site drawing, sampling locations, and contact information for replacement parts and chemicals for each unit process;

2. Safety considerations;

3. A list of all control functions and how to use them;

4. All operation, maintenance, sampling, and inspection schedules for the discharging system including any requirements that exceed the minimum requirements of this chapter;

6. The General Permit effluent sampling and reporting schedule;

7. The sampling location for each of the required General Permit parameters and for informal (process control) testing parameters;

8. The expected ranges of any recommended informal (process control) tests;

9. The limits of the discharging system and how to operate the system within those design limits; and

10. Other information deemed necessary or appropriate by the designer.

12VAC5-640-266. Issuance of the operation permit.

A. Prior to issuance of the operation permit, the department may inspect the discharging system to determine if the installation is in substantial compliance with the construction permit and the requirements of this chapter. Minor deviations from the permit or proposed plans and specifications, excluding the manufacturer's design and installation specification, that do not affect the quality of the sewage treatment process or endanger public health or the environment may be approved by the department.

B. Before receipt of an operation permit, the owner shall:

1. Submit the completion statements and as built drawings as required under 12VAC5-640-262;

2. Submit the operation and maintenance manual as required under 12VAC5-640-264; and

3. Submit the maintenance and monitoring contracts as required under 12VAC5-640-490 G and 12VAC5-640-500 B.

C. Upon the owner's satisfactory completion of the requirements in subsection B of this section, the commissioner or department shall issue an operation permit to the owner. The issuance of an operation permit does not denote or imply any warranty or guarantee by the commissioner or department that the discharging system will function for any specified period of time. The operation permit shall note whether the permitted system has general or nongeneral approval.

12VAC5-640-270. Denial of a construction or operation permit.

A. Construction permit. If the commissioner or department determines it is determined that the proposed site does not comply with this chapter or that the design of the system would preclude the safe and proper operation of a discharging system, or that the installation and operation of the system would create an actual or potential health hazard or nuisance, or the proposed design would adversely impact the environment, the permit shall be denied and the owner shall be notified in writing, by certified mail, of the basis for the denial, and a copy shall be sent to the Department of Environmental Quality. The notification shall also state that the owner has the right to appeal the denial.

B. Operation permit. In addition to the grounds set forth in 12VAC5-640-270 subsection A of this section, the operation permit shall be denied if the discharging system is not constructed in accordance with the construction permit or the owner has failed to provide the completion statement statements required by 12VAC5-640-300 12VAC5-640-262, or the operation and maintenance manual required by 12VAC5-640-264, and a copy of a valid maintenance contract required by 12VAC5-640-500 or a valid monitoring contract as required in 12VAC5-640-490 F G. The owner shall be notified in writing, by certified mail, of the basis for the denial, and a copy of the denial shall be sent to the Department of Environmental Quality. The notification shall also state that the owner has the right to appeal the denial.

12VAC5-640-280. Suspension or revocation Revocation of construction permits and operation permits.

The After providing the owner with the notice and the opportunity to participate in an informal conference or consultation proceeding in accordance with § 2.2-4019 of the Code of Virginia and 12VAC5-640-180, the commissioner may suspend or revoke a construction permit or operation permit for any of the following reasons:

1. Failure to comply with the conditions of the permit including, but not limited to, the monitoring and maintenance requirements in Article 4 (12VAC5-640-490 et seq.) of Part III of this chapter and the payment of the inspection fee under 12VAC5-640-320;

2. Failure to keep a maintenance contract in force in accordance with 12VAC5-640-500, or keep a monitoring contract in force in accordance with 12VAC5-640-490 F G;

3. Violation of any requirement of this chapter for which no variance has been issued;

4. Facts become known which reveal that an actual or potential health hazard has been or would be created or that the environmental resources may be adversely affected by allowing the proposed discharging system to be installed or operated; or

5. Failure to comply with the effluent limitations set forth by the SWCB in the General Permit as determined by the monitoring required by Article 4 of Part III.

12VAC5-640-290. Voidance of construction or operation permits.

A. Null and void.

All After providing the owner with the notice and the opportunity to participate in an informal conference or consultation proceeding in accordance with § 2.2-4019 of the Code of Virginia and 12VAC5-640-180, the commissioner or the department may declare a discharging system system's construction permits are or operation permit null and void when any of the following conditions occur:

1. Conditions such as house location, well location, discharging system location, discharge point, discharge system design, topography, drainage ways, or other site conditions are changed from those shown on the application or site plan;

2. Conditions are changed from those shown on the construction permit;

3. More than 54 60 months elapse from the date the permit was issued; or

4. The suspension, revocation or expiration of the General Permit or of the owner's approved registration by the SWCB.

B. Reapplication.

Reapplication for the purposes of having an expired construction permit reissued shall be the responsibility of the owner, and such reapplication shall be handled as an initial application and comply fully with 12VAC5-640-230.

12VAC5-640-300. Statement required upon completion of construction. (Repealed.)

Upon completion of the construction, alteration, or rehabilitation of a discharging system, the owner or agent shall submit to the district or local health department a statement, signed by the contractor, upon the form set out in Appendix II, that the system was installed and constructed in accordance with the permit, and further that the system complies with all applicable state and local regulations, ordinances and laws.

12VAC5-640-310. Inspection and correction. (Repealed.)

No discharging system shall be placed in operation, except for the purposes of testing the mechanical soundness of the system, until inspected by the district or local health department, corrections made if necessary, and the owner has been issued an operation permit by the district or local health department.

12VAC5-640-320. Issuance of the operation permit. (Repealed.)

Upon satisfactory completion of the requirements of 12VAC5-640-300, 12VAC5-640-310, 12VAC5-640-490 F and 12VAC5-640-500 B, the commissioner shall issue an operation permit to the owner. The issuance of an operation permit does not denote or imply any warranty or guarantee by the department that the discharging system will function for any specified period of time. The operation permit shall note whether the permitted system has experimental, preliminary, or general approval. Further, the operation permit will indicate that the operation and maintenance of the system is the owner's responsibility and that discharges in excess of the limits established by the General Permit, now or in the future, may cause the department to mandate the repair, expansion or replacement of the discharging system.

A. Inspection fees. A fee of $50 shall be charged to the owner for each mandatory monitoring inspection of an alternative discharging sewage treatment system conducted by the department in accordance with 12VAC5-640-490 C, D, or E. The fee shall be paid to the Virginia Department of Health by the owner or his agent prior to receipt of the inspection results from the department. Each inspection fee shall apply to one site specific inspection of only one discharging system.

B. Waiver of fees. An owner whose income of his family is at or below the 1988 Poverty Income Guidelines For All States (Except Alaska and Hawaii) And The District of Columbia established by the Department of Health and Human Services, 53 Fed. Reg. 4213 (1988), or any successor guidelines, shall not be charged a fee for mandatory monitoring inspection of an alternative discharging sewage treatment system conducted by the Department of Health in accordance with 12VAC5-640-490 C, D, or E.

C. Determining eligibility.

1. An owner seeking a waiver of an inspection fee shall request the waiver in writing. The department will require information as to income, family size, financial status and other related data.

2. It is the owner's responsibility to furnish the department with the correct financial data in order to be appropriately classified according to income level and to determine eligibility for a waiver of an inspection fee. The owner shall be required to provide written verification of income such as check stubs, written letter from an employer, W-2 forms, etc., in order to provide documentation for the file.

3. The proof of income must reflect current income which is expected to be available during the next 12-month period. Proof of income must include: name of employer, amount of gross earnings, pay period for stated earnings. If no pay stub, a written statement must include the name, address, telephone number and title of person certifying the income.

12VAC5-640-330. Suspension of an operation permit. (Repealed.)

A. Suspension. The district health director or district sanitarian manager may suspend the operation permit held by the owner of any discharging system which discharges effluent in violation of the effluent limitations set forth in the General Permit provided the following conditions have been met:

1. The owner has received written notification, either in person or by certified mail, of the violation at least seven working days prior to the suspension;

2. The owner has been advised of the nature of the violation and, if known, what actions are necessary to correct the violation;

3. The owner has been advised of his right to a hearing pursuant to 12VAC5-640-180 B to appeal the suspension of the operation permit;

4. The owner has taken no significant demonstrable action to identify and correct the problem causing the system to fail; and

5. The owner has been issued an emergency pump and haul permit, or given another alternative method of sewage disposal, at least 24 hours prior to the suspension of the operation permit.

B. Discharge suspended. Upon suspension of an operation permit the owner shall immediately cease discharging effluent until corrections have been made to the discharging system which may be expected to bring the system into compliance with this chapter. The owner shall demonstrate to the health department that interim sewage disposal methods are in compliance with all federal, state and local laws governing public health and the environment. When pump and haul is utilized to prevent a discharge from occurring, the owner shall comply with the emergency pump and haul requirements found in the Sewage Handling and Disposal Regulations (12VAC5-610-10 et seq.) and provide the local health department with the name, address and phone number of the hauler and the frequency of pumping prior to initiating the emergency pump and haul process.

C. Modifications, alterations, or extensions. In addition to the remedies under 12VAC5-640-330 A and B, when any individual discharging system has exceeded its permitted discharge limitations three times in any one year or five times in any two consecutive years, the district health director or district sanitarian manager may require modifications, alterations or extensions to the system in order to improve the effectiveness of the system.

12VAC5-640-340. Reinstatement of an operation permit. (Repealed.)

Upon completion of repairs, modifications, alterations, or extensions to the discharging system, which may be reasonably expected to correct the cause of the violation, the department shall reinstate the operation permit. Upon reinstating the operation permit, the pump and haul permit shall be rescinded. The notice of reinstatement of the operation permit and rescinding of the pump and haul permit shall be made in writing and delivered in person or by certified mail.

12VAC5-640-350. System approval. (Repealed.)

Discharging systems will be classified by the division according to the data available to indicate the performance limits and reliability of various discharging systems. Systems may be classified as having an experimental system approval, a preliminary system approval, or a general system approval. The type and frequency of testing for each class of approval is designed to reflect the certainty with which the system has demonstrated its ability to meet the limits of the General Permit. Approval of generic system designs or of individual proprietary systems will be made by the division.

A. Experimental system approval. Experimental system approval indicates that a system, process, technology, or design has not been rigorously tested and proven capable of meeting either the discharge limits of the General Permit or the standards for Class 1 systems as defined by ANSI/NSF (American National Standards Institute/National Sanitation Foundation) International Standard 40, revised July 1990 ("Standard 40") hereby incorporated by reference. Products which have not been field tested or demonstrated in use as described in 12VAC5-640-350 B or C shall be considered experimental.

1. Notification of owner. All owners proposing experimental discharging systems shall sign a waiver of liability relieving, and agreeing to indemnify, the Department of Health and its employees for all liability associated with the design, operation, and performance of the system. Further, the owner shall agree to replace the experimental system with a system that has either general approval or preliminary approval in the event the experimental system fails and cannot be repaired. The cost of all repairs to, or replacement of, any experimental system shall be the responsibility of the system owner and shall not lie with the department.

2. Limit of 25 systems. A maximum of 25 experimental discharging systems of any one type or design may be installed at any one time in the Commonwealth.

3. Time limit for experimental system status. Experimental approval shall not extend for more than 18 months after the 15th experimental system of one type or design has been installed. After 18 months the experimental process, technology or design shall be reviewed by the division and either granted preliminary system approval or the experimental approval shall be revoked. Preliminary system approval shall be granted if the system complies with the requirements of 12VAC5-640-350 B 1 c.

B. Preliminary system approval. Preliminary approval of a particular model of a discharging system indicates that the specific model uses a method, technology, process or combination of methods, technologies or processes that has been demonstrated in full scale systems under controlled test conditions. The results of these tests indicate that the system may have the potential to treat residential sewage under actual residential conditions to the level required by the General Permit. Demonstrated in situ performance, to the level of treatment required by the General Permit, is necessary to maintain system approval.

1. A discharging system may receive preliminary system approval by one of three methods:

a. ANSI/NSF testing. A system may be tested by an entity accredited by the American National Standards Institute and demonstrated to comply with Standard 40; or

b. Accepted engineering practice. System designs such as intermittent dosed sand filters, recirculating sand filters, and other system concepts which use design concepts and loading rates proven in accordance with accepted industry standards and practices and which have been routinely used and have associated test results meeting or exceeding those required for experimental systems to receive preliminary approval, may be granted preliminary approval by the division; or

c. Successful experimental system testing. A system may receive preliminary system approval by successfully demonstrating as an experimental system it can meet the following requirements:

(1) Replicates. At a minimum 15 systems of the same type or design shall be tested under residential conditions for a minimum period of one year each (i.e., no individual system shall be tested for less than one year);

(2) Data collection. Data shall be collected and reported to the Division for each system in accordance with the requirements of 12VAC5-640-490; and

(3) Results. The data shall demonstrate that during the previous year, not less than 95% of all systems of any one type or design were functioning properly during any quarter. That is, during the previous one year there were no data indicating the need to suspend the preliminary system approval.

2. Time limit for preliminary system approval. Preliminary system approval shall not extend for more than 60 months after the 25th preliminary system of one type or design has been installed. After 60 months the preliminary system approval status shall be reviewed by the division and the system either granted general system approval or the preliminary system approval shall be revoked. General system approval shall be granted if the system complies with the requirements of 12VAC5-640-350.

C. General system approval. Systems that have demonstrated in actual residential use that they can consistently meet the limits of the General Permit shall be eligible for general system approval. To meet the intent of this section the system shall meet the following requirements:

1. Replicates. At a minimum 25 systems shall be tested under residential conditions for a minimum period of five years each (i.e., no individual system shall be tested for less than five years);

2. Data collection. Data shall be collected and reported to the district health department for each system in accordance with the requirements of 12VAC5-640-490; and

3. Results. The data shall demonstrate that during the previous five years, not less than 95% of all systems of any one type or design were functioning properly during any quarter. That is, during the previous five years there were no data indicating the need to suspend the preliminary system approval. All systems installed and tested at the time of evaluation shall be included in the review. Nothing shall limit the department to basing its evaluation only on the first 25 systems installed.

12VAC5-640-360. Product registration. (Repealed.)

All aerobic treatment units shall be registered with the Division of Sanitarian Services in order to receive preliminary approval. In order to register a product, the manufacturer shall submit documentation showing the results of the Standard 40 testing and detailed plans and specifications of the product. Detailed plans and specifications shall include at a minimum a plan view of the ATU, a cross section of the ATU and any supplementary views which together with the specification and general installation guidelines will provide sufficient information for sanitarians to issue permits.

A. Health department review. The Division of Sanitarian Services will review requests for preliminary approval within 30 work days of receipt and respond to the applicant in writing. The department may approve, deny, conditionally approve, or request additional information on any request. When additional information is requested the division shall respond to the additional information within 30 days of receipt.

B. Certification mark or seal. All Class I ATU's in compliance with ANSI/NSF International Standard 40 shall have a registered certification mark or seal which must be affixed in a conspicuous location on the unit.

12VAC5-640-370. Submission of plans. (Repealed.)

A. Intermittent sand filter. All plans for an intermittent sand filter must use a design prepared by a professional engineer licensed to practice in Virginia, except for generic system designs which have been approved by the division. All plans and specifications shall bear the name, address, and occupation of the author and date of design.

B. Recirculating sand filter. All recirculating sand filters must use a design prepared by a professional engineer licensed to practice in Virginia, except for generic system designs which have been approved by the division. All plans and specifications shall bear the name, address, and occupation of the author and date of design.

C. Constructed wetlands. Constructed wetlands are considered experimental and will be considered on a case by case basis by the department. All constructed wetland systems shall be designed to meet or exceed 10 mg/l BOD₅ and 10 mg/l suspended solids.

12VAC5-640-380. Suspension and revocation of system approval. (Repealed.)

A. General. The experimental and preliminary approval of systems cited in 12VAC5-640-350 is based on the capability, or theoretical capability, of a particular method, technology or design to treat sewage under controlled conditions. Designs having general system approval have demonstrated their ability to meet the discharge limits of the General Permit; however, these systems still require routine maintenance and attention to their proper use such that they operate in a safe and sanitary manner. In order to protect public health and the environment, these systems must also be capable working properly under normal field conditions.

B. Suspension of approval. Anytime more than 5.0%, as measured statewide, of the discharging systems of any approved generic system or of any approved proprietary system design are found to be failing for two consecutive quarters, the approval of that design or model shall be suspended. Failure for the purposes of this section means the discharge of effluent that does not meet the effluent limitations set forth in the State Water Control Board's General Permit for all constituents except residual chlorine and dissolved oxygen.

1. When less than 100 systems of a single design have been installed, Table 2.1 shall be used determine the maximum acceptable failure rate. The 5.0% rule shall not apply because a small number of failures, or even a single failure, may violate this percentage without unduly endangering public health or the environment.

2. When the approval of a system has been suspended, no additional systems of that design or model shall be installed or approved unless construction or installation is already in progress and the system or materials to construct the system are already on the job site.

TABLE 2.1
Number of systems Installed in VA	No. not to exceed for suspension	No. not to exceed for revocation
0-10	1	3
11-25	2	6
26-50	3	9
51-75	4	12
76-99	5	15

C. Reinstatement of approval for a suspended system. The approval of a system under suspension may be reinstated by the division after the following conditions have been met:

1. Repairs have been made to all failing systems, and

2. Follow-up testing, performed in accordance with 12VAC5-640-490 D 1, reveals that less than 2.0% of the systems are failing. When less than 100 systems have been installed, approval may be reinstated when repairs and testing as described above has been completed on all failing systems and the number of failures is less than that shown in Table 2.1.

D. Revocation of approval. Anytime more than 15%, as measured statewide, of the discharging systems of any approved generic system or of any approved proprietary system design are found to be failing for two consecutive quarters, the approval of that design shall be revoked. Failure for the purposes of this section means the discharge of effluent that does not meet the effluent limitations set forth in the State Water Control Board's General Permit for all constituents except residual chlorine and dissolved oxygen. Further, the division shall revoke the approval of any Class I ATU which fails to meet Standard 40 upon retesting for continued certification, when such testing has been performed by NSF or other third party which has been accredited by the American National Standards Institute.

1. When less than 100 systems of a single design have been installed, Table 2.1 shall be used determine the maximum acceptable failure rate. The 15% rule shall not apply because a small number of failures, or even a single failure, may violate this percentage without unduly endangering public health or the environment.

2. When the approval of a system has been revoked, no additional systems of that type shall be installed or approved.

E. Reinstatement of a revoked system. The approval of a system that has had its approval revoked may be reinstated by the division after the following conditions have been met:

1. Design flaws which led to the excessive failure rate have been corrected;

2. Repairs have been made to all systems to correct the design flaws;

3. Follow-up testing, performed in accordance with 12VAC5-640-490 D 1 reveals that less than 2.0% of the systems are failing. When less than 100 systems have been installed, approval may be reinstated when repairs and testing as described above has been completed on all failing systems and the number of failures is less than that shown in Table 2.1; and

4. Retesting and recertification of any Class I ATU under Standard 40.

F. Notification by the department. When the approval for a system is suspended, or is revoked, the department will send notice of the suspension to all regional and district offices of the Health Department, the manufacturer (if applicable), and other interested parties who have notified the department in writing that they wish to be notified. The notice shall include the system name, failure rate, location of failing systems and what actions are necessary to return to an approved status.

12VAC5-640-400. Classifications of discharge point points.

The nature of the discharge point will determine what precautions must be taken to protect public health and environmental resources. These regulations identify two classifications of discharge points.

A. All 1. Where an all weather stream required if possible is available, it shall be used rather than discharging to an intermittent stream, dry ditch, or wetland. The preferred point of discharge is an An all weather stream where effluent can be readily diluted dilute the effluent at least 10:1 as measured during a 7 at the seven consecutive day average of a 10 year 10-year low flow (7-Q-10) and thereby minimize public health and water quality impacts. Where an all weather stream is available for use it shall be used rather than discharging to an intermittent stream or dry ditch.

B. Stream type identification on USGS maps. 2. An all weather stream may generally be identified is represented by a solid blue line on the most recently published 7.5 minute United States Geologic Survey (U.S.G.S.) topographic map and has a 7-Q-10 flow that can provide 10:1 dilution of the effluent. The site evaluation shall include a review to verify that the stream is flowing at the time of the site evaluation. The USGS map shall not be the sole and final factor used to determine if a stream is an all weather stream when the department observes otherwise. Intermittent streams may be identified are represented by a dotted and dashed blue line on the most recently published 7.5 minute United States Geologic Survey topographic map. An all weather stream that provides less than 10:1 dilution of the effluent based on 7-Q-10 flow shall be considered an intermittent stream. Intermittent streams and dry ditches have an assigned stream flow 7-Q-10 of zero.

C. Other means of determining stream flow. 3. An owner may submit to the division additional hydrologic data, including but not limited to stream records and anecdotal evidence of long time residents, to support that a stream can provide a dilution ratio of 10:1. When in the opinion of the division, the evidence warrants a change, the division may determine that a stream is an all weather stream for the purposes of this chapter. The owner may also request site specific stream flow determinations from the Department of Environmental Quality.

D. Intermittent streams or dry ditches. 4. Discharges into intermittent streams or dry ditches which that do not have the dilution capability cited in 12VAC5-640-400 A subdivision 1 of this section shall be located entirely within the owner's property, or within a recorded easement as described in subdivision 2 of 12VAC5-640-450 B or a combination of the two.

1. Average slope. a. The average slope for any intermittent stream or dry ditch discharge receiving effluent from a discharging system shall be between a minimum of 2.0% and 30% for the first 500 feet from the point of discharge. The intermittent stream or dry ditch shall be protected from erosion by the discharge as needed.

2. Minimum slope. b. In order to prevent ponding, the minimum slope shall not be less than 1.0% at any point.

3. Grading of slopes. c. All slope measurements described in subdivisions 1 and 2 of this subsection shall be made prior to initiating any grading and are intended to reflect naturally occurring swales and drainage ways. Nothing contained herein however, is intended to prohibit a property owner from making minor grading improvements to prevent ponding in areas with minimal slopes. Naturally occurring swales and drainage ways may be extended with an engineered channel on a case-by-case basis, but any engineered channel must tie into the existing natural swale or drainage.

5. Wetlands shall be confirmed by the U.S. Army Corps of Engineers or the Department of Environmental Quality, as appropriate, based on the type of wetland. Confirmation of delineated wetlands shall be provided, and include a wetland delineation map, wetland field data sheets, and any other documentation from the U.S. Army Corps of Engineers or the Department of Environmental Quality indicating their approval of the wetland boundary. 7-Q-10 flows cannot be calculated for wetlands and therefore the assigned 7-Q-10 flow value is zero. Discharges to wetlands shall be located entirely within the owner's property, or within a recorded easement as described in subdivision 2 of 12VAC5-640-450.

12VAC5-640-420. Setback distances from discharge points and downstream channels for the protection of public health.

A. Water supply intakes and recreational uses. Discharges proposed within one mile (upstream or up channel) of any public water intake or one mile (upstream or up channel) of any area explicitly designated for public swimming shall not be permitted.

B. Discharges proposed within one mile upstream or up channel of any area explicitly designated for public swimming shall not be permitted.

C. When any river, stream, or other potential discharge area appears to receive significant primary contact use, such as, but not limited to, swimming, water skiing, tubing, or wet-wading, so that the discharge will pose a significant threat to public health or create a nuisance, the district health director may require a higher level of treatment and reliability class for the permitted discharge facility.

D. The district health director, in consultation with the local governing authority and the department, may prohibit discharges into specified portions of the river, stream, or other potential discharge area. Prior to taking such action, the health director shall take the following steps:

1. Publish a notice announcing the department's intention to consider areas for restricting the use of discharging systems, establishing the date, time and location(s) of the public meeting(s), and soliciting public comment on the proposed area or areas being reviewed;

2. Request the opinion of the local governing body and other appropriate government agencies concerning proposed restrictions to be submitted before the close of the public comment period;

3. Have a public comment period on the proposal of not less than 30 days;

4. Hold at least one public meeting, 30 days or more after publication of the notice specified in subdivision 1 of this section; and

5. Evaluate the public comments received and staff evaluations regarding the use of the proposed area or areas for primary contact uses.

When in the best professional opinion of the health director the area or areas under consideration receives, for 30 days or more per year, significant primary contact uses, such that the discharge will pose a significant threat to public health or create a nuisance, the director may designate areas where discharge systems are prohibited. Prohibited discharge areas may include areas upstream in the main channel and tributaries, from the area under review, for distances up to one mile if warranted by the evidence. Prohibited discharge areas shall be clearly defined in writing and delineated on a United States Geological Survey 7.5 minute topographic map. The prohibition on discharges, if any are found necessary, shall be effective upon notice after completion of the elements contained in this section.

B. Private and public water supplies. E. The wastewater treatment system (ATU, sandfilter etc.) (tankage and components), shall be a minimum of 50 feet from private and public water wells and private cisterns. The discharge point and the channel of treated effluent flow shall be located in accordance with the distances given in Table 3.1 from private and public water supplies wells and cisterns. Where the bottom elevation of a cistern is located above the elevation of the discharge point, the setback distances shall not apply. The set back distances between the water supply well or cistern and the downstream channel established in Table 3.1 shall apply for 50 feet downstream of the discharge point for all weather streams and 500 feet downstream for intermittent stream or dry ditch discharges. For wetlands where the flow path can be established, generally where the slope is 10% or greater, the setback distances between the water well or the cistern and the "downstream channel" shall apply for 250 feet downstream of the discharge point. For wetlands where the flow path cannot be established, generally where the slope is less than 10%, then the distance shall be measured radially for 250 feet from the point of discharge.

F. Setback distances to other wells not covered in Table 3.1 of this section, such as geothermal and gas wells, will be determined on a case-by-case basis.

C. Springs. G. No discharging system nor or any portion of the channel carrying the treated effluent flow shall be within 100 feet of a spring. Further, no discharging system shall discharge within 1,500 feet upstream or 100 feet downstream of any spring used for human consumption.

D. Sink holes. H. Discharging systems are prohibited from discharging directly into sink holes or into dry ditches, intermittent streams, wetlands, streams, or other waterways that flow into sink holes within 1,500 feet from the point of discharge, and dry ditches that flow into sink holes within one mile from the point of discharge.

E. Limestone outcrops. I. Dry ditch discharges to swales or drainage ways which have shall not have limestone outcrops within 25 feet of the dry ditch channel bottom are prohibited. This provision shall apply for the entire distance required for ownership or easement in 12VAC5-640-450 B a distance of 50 feet along the channel.

F. Proximity to other discharge points. The J. Except as noted below, the department will not approve discharging systems except where discharge points will be at least 500 feet apart. If the proposed system utilizes aerobic biological treatment followed by sand filtration this distance may be reduced to 250 feet apart. The separation distance may be reduced to 250 feet between discharge points in accordance with the following:

1. For discharges to an all weather stream, the distance may be reduced to 250 feet by providing a Reliability Class II facility.

2. For discharges to a dry ditch or intermittent stream, the distance may be reduced to 250 feet by providing a Reliability Class I system that produces a TL-3 effluent and a fecal coliform concentration of 100 col/100 ml or less.

3. No reduction in the distance between discharge points is allowed for discharges to wetlands.

G. Shellfish waters. K. No discharge shall be permitted under this chapter which will result in the condemnation of shellfish waters or the continued condemnation of shellfish waters closed only because of inadequate water quality.

TABLE 3.1 SETBACK DISTANCES FROM PRIVATE AND PUBLIC WATER SUPPLIES WELLS AND CISTERNS (All distances are in feet)
Type of Water Channel Supply Stream	Distance from Point of Discharge	Distance from Downstream Channel
		Downstream Channel With 7-Q-10 Discharge to All Weather Stream	Downstream Discharge to Wetland2, Intermittent Stream, or Dry Ditch
Class I and II1Wells	100	100	100
Class IIIA Well	50	50	50
Class IIIB Well	50	50	50
Class IIIC Well	100	50	100
Class IV Well	100	25 50	50 100
Cistern	100	50	100
1Class I and II well specifications are found in the Waterworks Regulations (12VAC5-590). All other well specifications may be found in the Private Well Regulations (12VAC5-630). 2The downstream 'channel' of a wetland where the flow path can be established shall be a minimum of 25 feet wide and approximately centered on the flow path. Where the flow path cannot be established in a wetland, then the distance shall be measured radially from the point of discharge.

Article 2

Design Requirements

12VAC5-640-430. Performance requirements.

A. Discharge limits. All systems operated under this chapter shall meet the effluent limitations set forth by the State Water Control Board in the General Permit. All systems operated under this chapter shall maintain the treatment system in accordance with the approved construction permit or as modified by the final construction permit in accordance with the operation permit, "as built" plans, and the operation and maintenance manual.

B. Bypass flow. No system shall be approved for use which provides a bypass pipe, or otherwise allows untreated or partially treated effluent to discharge in the event of a system failure.

12VAC5-640-432. Treatment unit and additional system component classifications.

A. Biological treatment units will be classified by the division according to the data available to demonstrate the performance limits and reliability of those treatment units. The division may classify treatment units as generally approved or not generally approved. The type and frequency of testing for each approval class is designed to reflect the certainty with which the system has demonstrated its ability to meet the limits of the General Permit or the performance requirements of this chapter.

1. General approval may be issued by the division for both TL-2 and TL-3 treatment units in accordance with the current policies of the division. Generally approved units shall be listed on the division's website.

2. Nongenerally approved biological treatment unit designs shall be properly supported with design calculations and one or more of the following:

a. Documentation from applicable engineering standards, texts, or other publications;

b. Relevant peer-reviewed research;

c. Technical guidance from other states (may be considered on a case-by-case basis); or

d. Technical guidance from the U.S. Environmental Protection Agency.

Scale drawings of the treatment unit, appropriate design calculations, and control system details shall be provided that demonstrate the ability of the unit to meet the required effluent limits and reliability standards at the proposed design flow.

B. Additional system components for discharging systems will be classified by the division as generally approved or not generally approved.

1. The division shall consider additional system components such as post-filtration, disinfection, dechlorination, and post-aeration to be generally approved if the unit has been tested and approved under a National Sanitation Foundation (NSF) or other recognized protocol for the proposed wastewater use or if the design complies with the design standards in 12VAC5-640-460.

2. Nongenerally approved system component designs shall be properly supported with design calculations and one or more of the following:

a. Documentation from applicable engineering standards, texts, or other publications;

b. Relevant peer-reviewed research;

c. Technical guidance from other states (may be considered on a case-by-case basis); or

d. Technical guidance from the U.S. Environmental Protection Agency.

Scale drawings of the treatment unit, appropriate design calculations, and control system details shall be provided that demonstrate the ability of the unit to meet the required effluent limits and reliability standards at the proposed design flow.

C. Discharging systems that are comprised entirely of generally approved treatment biological treatment units and system components as described in this section are considered generally approved treatment systems.

12VAC5-640-434. Reliability.

A. Reliability is a measure of the ability of a component or system to perform its designated function without failure or interruption of service. Overflow criteria, such as the allowable period of noncompliant discharge, are utilized solely for the establishment of reliability classification for design purposes and are not to be construed as authorization for, or defense of, an unpermitted discharge to state waters. The reliability classification shall be based on the water quality and public health and welfare consequences of a component or system failure.

B. Reliability Class I is required for dry ditch and intermittent stream discharges with 250 feet of easement available and wetland discharges with 100 feet of easement available.

1. For biological treatment processes, Reliability Class I shall be met by providing one of the following:

a. A passive, backup biological treatment system (e.g., an intermittent sand, peat, or media filter or a constructed wetlands);

b. A generator for the treatment system with automatic transfer switch;

c. A 24-hour holding tank for raw wastewater with telemetry system to immediately notify the operator of system failure; or

d. Any alternative means that limits the discharge of a noncompliant effluent to a maximum of 24 hours.

2. For disinfection, a Reliability Class I design shall ensure that the effluent is continually disinfected by providing electronic or mechanical means of monitoring the process such that failure of disinfection systems may be corrected within 24 hours.

C. Reliability Class II is required for dry ditch and intermittent stream discharges with 500 feet of easement available and wetland discharges with 250 feet of easement available. Reliability Class II is also required for the reduction of the distance between discharge points to 250 feet on an all weather stream.

1. For biological treatment processes, Reliability Class II shall be met by providing:

a. A fixed film biological treatment process such as an intermittent sand filter, recirculating media filter, or a peat filter;

b. A suspended growth biological system followed by post-filtration;

c. Telemetry to relay alarm conditions to the operator; or

d. Any alternative means that limits the discharge of a noncompliant effluent to a maximum of 36 hours.

2. For disinfection, a Reliability Class II design shall ensure that the effluent is continually disinfected by providing electronic or mechanical means of monitoring the process such that failure of disinfection systems may be corrected within 36 hours.

D. Reliability Class III is required for all weather stream discharges with a separation distance between discharge points of 500 feet or greater. For the purposes of this chapter, noncompliant discharges must be limited to a maximum of 48 hours in accordance with 12VAC5-640-500 C.

12VAC5-640-440. Factors Special factors affecting system design.

Each type of discharging system has its own unique advantages and disadvantages. These unique characteristics define the situations where a system may be used to advantage. The design of the system must be appropriate for the intended use and the site conditions where it is placed. the system is to be installed. Subdivisions 1 through 6 of this section contain a list of factors that will require special design consideration. This list should not be considered all encompassing. There may be other design factors that require special consideration. A preliminary engineering conference may be scheduled with the department to discuss such factors prior to submitting designs for department review.

A. Discharge to a dry ditch or intermittent stream. 1. When a discharge is proposed to a wetland, dry ditch, or intermittent stream, the department shall require restricted access to the wetland, dry ditch, or intermittent stream in accordance with 12VAC5-640-450 to protect public health.

B. Intermittent use. 2. Intermittent use for the purposes of this chapter constitutes use of the system for less than three consecutive months. Systems serving weekend cottages, or other intermittent uses will not reliably treat effluent prior to discharge. Therefore, the use of discharging systems for dwellings subject to intermittent use is prohibited require special design, operation, and maintenance consideration.

C. Infiltration. 3. When a discharging system is proposed to be located in an area subject to infiltration by surface water or shallow ground water, the department may require additional protection from infiltration, inflow, and flotation, including placement of the system above natural grade.

D. Erosion. 4. Erosion must be controlled by the owner of the discharging system in accordance with any local erosion control ordinances or the Soil Conservation Services recommendations.

E. Sewage design flows. 5. All systems shall normally be designed to treat the BOD₅ loading rate of 0.4 lbs/day per bedroom and a flow of 150 gallons per day per bedroom for systems up to three bedrooms. Systems serving single family dwellings having more than three bedrooms shall be permitted and designed to treat the anticipated loading rate based on BOD₅ and be capable of handling anticipated peak loading and flow rates. All systems shall be designed to operate over the range of anticipated flow and loading rates. When a system is permitted with a design less than the maximum capacity of the dwelling, the owner shall have the construction permit recorded and indexed in the grantor index under the owner's name in the land records of the clerk of the circuit court having jurisdiction over the site of the discharging system.

6. All system designs must include protection of the components from freezing or other adverse weather conditions and ensure that the system will function properly year round.

12VAC5-640-450. Criteria Design criteria for the use of intermittent streams or, dry ditches, or wetlands.

All owners of systems discharging to an intermittent stream, or dry ditch, or wetland shall ensure the following conditions are met:

1. Restricted access. Direct contact between minimally diluted effluent and insects, animals, and humans must be restricted for the life of the system. This will be achieved by reducing the chance of ponding and run-off and limiting access to the effluent. The department shall require fencing, rip-rap, or other barriers to restrict access to effluent discharging to a dry ditch, or intermittent stream, or wetland as deemed necessary to protect public health. This determination shall be made by the district health director or district sanitarian department on a case by case basis.

The a. For dry ditch and intermittent stream discharges, the restricted access area shall begin at the point where the effluent is discharged and continue for 500 feet, or until the effluent discharges into an all weather stream or is no longer visible during the wet season. The design shall provide justification for the length of the restricted access channel if less than 500 feet.

b. For wetland discharges, the restricted access shall extend for a distance of 250 feet along the flow path of the discharge unless a 10:1 dilution with the wetland can be achieved. If the flow path cannot be established and a 10:1 dilution cannot be obtained, then access shall be restricted for 100 feet radially from the point of discharge. For wetland discharges, the access barrier may be a subsurface discharge point, but in no case shall the discharge point and diffuser be greater than 18 inches below the natural wetland surface.

2. Ownership and easements. When effluent is discharged to a dry ditch, or intermittent stream, or wetland, the owner shall either own the land or have acquire an easement from the downstream or downgradient land owner to discharge on all land below the point of discharge for the distance shown in Table 3.2. To allow for system construction and repair of within the restricted access area, as well as and to facilitate maintenance and monitoring, the width of the easement shall be a minimum of 25 feet wide and approximately centered on either side of the low point of the dry ditch or intermittent stream for the entire length of the restricted access area. For wetlands, the easement shall be measured radially from the point of discharge unless flow direction can be established. In those cases where flow direction can be established, the easement shall be a minimum of 25 feet wide and approximately centered on the discharge path and extend for a distance along the flow path as described in Table 3.2. If the slope across the discharge site is equal to or greater than 10%, the flow direction can be determined by observation. For slopes less than 10%, a site specific study must be conducted to document the direction of flow. All easements must be in perpetuity and shall be recorded by the owner with the clerk of the circuit court having jurisdiction over the property prior to issuance of the construction permit. For the purposes of complying with this chapter, a CE-7 permit issued written approval to utilize an easement owned by the Virginia Department of Transportation shall be considered as equivalent to an easement in perpetuity recorded by the owner with the clerk of the circuit court office having jurisdiction over the property.

TABLE 3.2 REQUIREMENTS FOR OWNERSHIP OR EASEMENTS DOWNSTREAM FROM DISCHARGING SYSTEMS
	Downstream or Down Channel Distance (feet)
Process	No spring below	Spring below
Sandfilter, aerobic system (w/post filtration), constructed wetland, or other single process system	500'	1,500'
Aerobic system w/sand filter, or other combination process with equal treatment	250'	1,500'

3. Public health and environmental impact reduction and nuisance abatement. Each discharging system which that discharges to a dry ditch, or intermittent stream, or wetland must receive additional treatment beyond that required by the General Permit in order to reduce the increased potential for public health and nuisance problems which may result when partially treated effluent is not diluted. Such additional treatment shall be capable of producing an effluent with a quality of 10 mg/l of BOD₅, 10 mg/l of suspended solids and a fecal coliform level of less than or equal to 100 colonies per 100 ml. Treatment units approved as TL-3 are recognized as having the ability to meet this BOD₅ and TSS standard, but have not been tested for compliance with the fecal coliform standard. Therefore, the following reliability classifications in Table 3.2 must be met when designing discharge systems intended to discharge into dry ditches, intermittent streams, or wetlands.

TABLE 3.2 REQUIREMENTS FOR RELIABILITY CLASSIFICATION AND OWNERSHIP OR EASEMENTS DOWNSTREAM FROM SYSTEMS THAT DISCHARGE TO DRY DITCHES, INTERMITTENT STREAMS, OR WETLANDS
Reliability Class	Downstream or Down Channel Distance for Dry Ditches or Intermittent Streams (feet)		Wetlands from Discharge Point along Flow Path or Radially from Discharge Point
	No spring below	Spring below
Reliability Class I	250 ft	1,500 ft	100 ft
Reliability Class II	500 ft	1,500 ft	250 ft

12VAC5-640-460. Disinfection Design requirements for system components.

A. All discharging systems shall be equipped with a means of disinfecting the effluent which is acceptable to the division and meets the performance requirements of this chapter.

A. 1. All discharging systems utilizing chlorine as a disinfectant shall be equipped with a chlorinator and contact chamber. Dechlorination is to be supplied if required by the General Permit.

a. Chlorinator capacity shall be based on the degree of treatment, flow variations, and other variables in the treatment processes. For disinfection, the capacity shall be adequate to maintain a total chlorine residual between 1.0 mg/l and 3.0 mg/l in the effluent after the required contact period. All chlorinators shall be designed to provide the appropriate dose of chlorine and mix the chlorine with the effluent. All chlorine products used to disinfect effluent from a discharging system shall be approved by the U.S. Environmental Protection Agency for use as a sewage disinfectant; products unapproved for wastewater disinfection are not acceptable. Use of unapproved products shall constitute a violation of this chapter.

b. The chlorine contact chamber shall have a length to width ratio of 20:1 and shall be capable of maintaining a total chlorine residual between 1.0 mg/l and 3.0 mg/l in the effluent within the chlorine contact chamber for provide a contact time of 30 minutes based on peak hourly flow, or 60 minutes based on peak daily flow. The length to width ratio may be reduced on a case by case basis when increased chlorine contact times are utilized.

c. When required by the General Permit, dechlorination capacity shall be adequate to dechlorinate the maximum chlorine residual anticipated and achieve the required General Permit effluent limits for total residual chlorine by providing at least 1-1/2 parts sulfite salt to one part chlorine. Provisions shall be made to thoroughly mix the dechlorinating agent with the contact tank effluent within a period of approximately one minute.

d. To meet Reliability Class I or Class II, all chlorination and dechlorination units shall be alarmed to notify the operator when tablets are not present in the dosing chamber or equipped with duplicate units that automatically switch over to the redundant unit if the primary unit is not operating.

2. Disinfection can be achieved through exposure of microorganisms to a sufficient level of ultraviolet light (UV) irradiation at the germicidal wavelength for an adequate period of time.

a. UV disinfection equipment shall be capable of providing a minimum average calculated dose of 50,000 microwatt-seconds per square centimeter after the UV lamps have been in operation for 7,500 hours or more and at a 65% transmissivity. The dosage may be reduced on a case-by-case basis when sufficient information is provided to demonstrate that the required level of disinfection can be obtained at a lower dose level through test data.

b. UV lamps shall produce 90% or more of their emitted light output at the germicidal wavelength of 253.7 nanometers.

c. UV lamp assemblies shall be so located as to provide convenient access for lamp maintenance and removal.

d. UV lamps should not be viewed in the ambient air without proper eye protection as required by VOSH and other applicable regulations. The system design should prevent exposure of bare skin to UV lamp emission for durations exceeding several minutes.

e. An elapsed time meter shall be provided to indicate the total operating time of the UV lamps.

f. UV systems are sensitive to color and suspended solids. Precautions should be taken to protect the UV system from both color and excessive suspended solids.

g. To meet Reliability Class I or Class II, all UV units shall be equipped with sensors to detect bulb failure with an alarm or equipped with duplicate units that automatically switchover if the primary unit is not operating.

B. All chlorine used to disinfect effluent from a discharging system shall be approved by the Environmental Protection Agency for use as a sewage disinfectant.

C. Other methods of disinfection for the removal of bacteria and viruses, which have been demonstrated effective under field use, may be approved by the division.

B. Post-aeration as required by the General Permit shall be provided to ensure that the final effluent complies with the dissolved oxygen effluent limits in the General Permit. Post-aeration may involve diffused aeration or cascade type aeration. All post-aeration designs shall assume a zero dissolved oxygen concentration in the influent wastewater to the post-aeration unit.

1. Effluent post-aeration may be achieved by the introduction of diffused air into the effluent.

a. Diffused aeration basins shall be designed to eliminate short-circuiting and the occurrence of dead spaces. For maximum efficiencies, sufficient detention time shall be provided to allow the air bubbles to rise to the surface of the wastewater prior to discharge from the basin.

b. When the detention time in the aeration basin exceeds 30 minutes, consideration shall be given to the oxygen requirements resulting from biological activity in the aeration unit.

c. Diffused air aeration systems shall be designed utilizing Fick's Law (the rate of molecular diffusion of a dissolved gas in a liquid) in the determination of oxygen requirements. Supporting experimental data shall be included with the submission of any proposal for the use of diffusers that are considered nonconventional. Such proposals will be evaluated on a case-by-case basis by the division.

d. Alternatively, an airflow of one cubic foot per minute at a diffuser submergence of one foot is sufficient to increase the dissolved oxygen of 1000 gallons per day of effluent to greater than five mg/l dissolved oxygen at 25°C.

e. If airflow is to be siphoned off the blower for the biological treatment unit, calculations shall be submitted to verify that there is sufficient air for both uses.

2. Effluent post-aeration may be achieved through a turbulent liquid-air interface established by passing the effluent downstream over either a series of constructed steps that produces a similar opportunity for transfer of dissolved oxygen to the effluent, otherwise known as cascade or step aeration.

a. The following equation shall be used in the design of cascade/step type aerators:

	rn = (Cs-Ca)/(Cs-Cb)
	where: r	=	Deficit ratio
	Cs	=	Dissolved oxygen saturation (mg/l)
	Ca	=	Dissolved oxygen concentration above the weir, assumed to be 0.0 mg/l
	Cb	=	Dissolved oxygen concentration in the effluent from the last or preceding step
	n	=	The number of equal size steps
	r	=	1 + (0.11) (ab) (1 + 0.046 T) (h)
	where: T	=	Water temperature (°C)
	h	=	Height of one step (ft)
	a	=	1.0 for effluents (BOD5 of less than 15 mg/l) or 0.8 for effluents (BOD5 of 15 mg/l to 30 mg/l)
	b	=	1.0 for free fall and 1.3 for step weirs

b. The equation for determining the number of steps is dependent upon equidistant steps, and if unequal steps are used, transfer efficiencies must be determined for each separate step.

c. The effluent discharge to a cascade type aerator shall be over a sharp weir to provide for a thin sheet of wastewater. Consideration shall be given to prevention of freezing.

d. The final step of the cascade type aerator shall be above normal stream flow elevation and the cascade aerator shall be protected from erosion damage due to storm water drainage or flood/wave action.

e. When pumping is necessary prior to discharge over the cascade aerator, the range of the flow rate to the post-aeration unit must be accounted for in the design.

f. A step aerator with multiple steps each less than or equal to one foot and a total drop of five feet is sufficient to increase the dissolved oxygen in an effluent at 25°C to greater than five mg/l.

C. Post-filtration may be used to ensure compliance with the reliability standards in 12VAC5-640-434 and generally follow the biological treatment unit and are prior to disinfection in the treatment process. For granular media filters, the media depth shall not be less than 30 inches. Sand media for intermittently dosed and recirculated effluent, shall have an effective size of 0.30 mm to 1.0 mm and 0.8 mm to 1.5 mm, respectively. The uniformity coefficient should not exceed 4.0. No more than 2.0% shall be finer than 0.177 mm (80 mesh sieve) and not more than 1.0% shall be finer than 0.149 mm. No more than 2.0% shall be larger than 4.76 mm (4 mesh sieve). Larger granular media up to five mm in effective size may be considered on a case-by-case basis. The filter shall be equipped with an underdrain. The surface of the filter shall be accessible for maintenance. For the purposes of a filtration unit, the maximum surface hydraulic loading rate is 15 gpd/sf.

D. Constructed wetlands that are used as a passive backup biological treatment unit for the purposes of meeting Reliability Class I requirements of 12VAC5-640-350 shall be lined with a minimum surface area of 100 square feet, a depth of 18 inches, a length to width ratio of about 4 to 1, and shall have subsurface flow. Wastewater shall be disinfected prior to entering the constructed wetlands and sampling ports shall be provided to allow monitoring of the influent to the wetlands. Effluent dechlorination prior to entering the wetlands may be necessary to protect the plants from toxic levels of chlorine.

Article 3
Construction Requirements

12VAC5-640-470. Installation review General construction requirements.

A. General. No portion of any system may be covered or used until inspected, corrections made if necessary, and approved, by the local health department or unless expressly authorized in writing by the local health department. All applicable sections contained in the Sewage Handling and Disposal Regulations, 12VAC5-610-10 et seq. 12VAC5-610, shall be used to establish design and construction criteria not contained in this chapter.

B. Slope. Gravity sewer lines and lines between components of the system shall be schedule 40 pipe and shall have a minimum grade of 1.35" 1.25 inches per 10' ten feet for 3" three-inch and 4" four-inch sewer lines. Discharge lines after primary or secondary treatment units shall have a minimum grade of 6" six inches per 100' 100 feet. Where minimum grades cannot be maintained, detailed pump specifications shall be shown on the site plan in accordance with Article 4 (12VAC5-610-598 et seq.) of Part IV of the Sewage Handling and Disposal Regulations, 12VAC5-610-10 et seq.

C. Location. The treatment unit and all piping and appurtenances shall be located in conformance with the approved plans. All changes in location shall be approved by the local department prior to the installation of the system.

D. Pumps. All pumps and appurtenances to the pump shall be installed according to the plans and specifications approved by the department and referenced in the permit.

E. Electrical. All wiring shall be approved by the local building official and shall be weather tight and permanent in nature (hard wired).

F. Controls. The control panel for the system shall be located within 15 feet of the treatment unit and shall be provided with a manual override switch. Each pumping station shall be provided with controls for automatically starting and stopping the pumps based on water level. When float type controls are utilized they shall be placed so as to be unaffected by the flow entering the wet well.

G. Alarm. All mechanical treatment units shall be provided with an alarm system on a separate electrical circuit from the remainder of the treatment unit. The alarm shall be both audio and visual and shall be located in an inhabited portion of the dwelling. Examples of alarm conditions to be monitored include aerator failure, blower failure, and high water level.

All ATU's shall be equipped with an alarm that detects aerator failure and a high water alarm to warn against the back-up or overflow of sewage.

H. Flood plain. Except for the discharge pipe, and step type post aeration if required used for post-aeration, no portion of the discharging system may be located in the 100-year flood plain.

I. Sampling ports. All discharging systems shall be equipped with a six-inch (or larger) sampling port connected to an approved effluent collection box at the chlorine contact chamber after the 30- or 60-minute contact time (i.e., the sampling port shall be located at the outlet end of the chamber. Additionally, a separate sampling port shall be required after the dechlorination unit. Other sampling ports may be required elsewhere on a case by case basis as required by the system design.

I. The design must allow for sampling to confirm the efficacy of the treatment process. Sampling ports shall be identified on the construction documents and shall meet the following minimum requirements:

1. All discharging systems utilizing chlorine as a disinfectant shall be equipped with a four inch or larger sampling port connected to an approved effluent collection box at the chlorine contact chamber after the 30-minute or 60-minute contact time (i.e., the sampling port shall be located at the outlet end of the chamber).

2. A separate sampling port shall be required after the dechlorination unit.

3. The sampling location is to be identified and a port provided if needed for sampling the final effluent prior to the effluent entering the discharge channel.

4. Other sampling ports may be required on a case-by-case basis due to the system design.

J. Clean out port. All discharging systems shall have a clean out port, accessible from the surface of the ground within 10' 10 feet of the influent invert of the treatment unit.

K. Ventilation. Positive ventilation shall be provided at pumping stations when personnel are required to enter the station for routine maintenance.

L. Filter liners. Sand filter liners shall be constructed of clay having a permeability of 10^-6 cm/sec. or less, a 28 mil vinyl or PVC plastic liner, concrete, or other material approved by the division. A watertight seal shall be provided where underdrain piping exits the filter.

M. Filter materials. Sandfilter materials shall meet the specifications described in 12VAC5-580-760 B of the Sewerage Regulations, or as amended.

N. Posting of discharge pipe. M. The owner of each discharging system that discharges to state waters, including either an all weather stream or an intermittent stream, shall post a permanent sign at the point of discharge with the following notice:

This pipe carries treated sewage effluent and is not suitable for human consumption. This system is owned by (FULL NAME OF PERMIT HOLDER) and is maintained by (NAME AND PHONE NUMBER OF MAINTENANCE PROVIDER IN MAINTENANCE CONTRACT).

The sign shall be posted within three feet of the discharge pipe, and shall be plainly visible to the public, and shall be constructed of durable material. All lettering shall be at least one-inch high and shall be clearly legible. The sign shall have black letters on a white background (or be painted in other contrasting colors) and be plainly visible at a distance of 25 feet to a person with normal vision. Failure to maintain this sign shall be grounds for suspending the owner's operation permit.

12VAC5-640-480. Compliance with plans. (Repealed.)

Prior to the issuance of an operation permit all discharging systems must be inspected by the health department and found to substantially comply with the intent of the chapter. Minor deviations from the permit or proposed plans and specifications (excluding the manufacturer's design and installation specifications) that do not affect the quality of the sewage treatment process or endanger public health or the environment may be approved. Where engineering plans were submitted and were incorporated in the construction permit, the design engineer, or other professional engineer designated by the design engineer, shall inspect the installation and submit written comments concerning the compliance of the installation with the design specifications prior to the issuance of the operation permit.

Article 4
Monitoring and Maintenance Requirements

12VAC5-640-490. Monitoring.

A. General. Discharging systems that discharge improperly treated effluent can endanger public health and threaten environmental resources. All discharging systems shall be routinely inspected and the effluent sampled to determine compliance with the effluent limitations set forth by the State Water Control Board in the General Permit and in accordance with 12VAC5-640-430 and 12VAC5-640-510. All testing requirements contained in this chapter are the responsibility of the system owner to have collected, analyzed, and reported to the department.

B. Types of testing. There are two types of testing recognized by this chapter: formal compliance testing and informal (process control) testing. Formal testing is conducted to determine either compliance or noncompliance with this chapter the General Permit. Informal testing is conducted to assess the treatment system's performance determine compliance with this chapter and to determine when additional formal compliance testing is necessary. Informal testing may support but shall not be the sole basis for suspending an operation permit pursuant to 12VAC5-640-330 or to suspend or revoke suspending or revoking the approval of the system pursuant to 12VAC5-640-380 of this chapter 12VAC5-640-280.

1. Formal compliance testing. Effluent from all discharging systems shall be tested for the following parameters at a frequency specified in Table 3.4: Five-day biochemical oxygen demand (BOD₅), total suspended solids, fecal coliform bacteria, dissolved oxygen and total chlorine residual (measured at the outfall and in the chlorine contact chamber if dechlorination is required). The tests shall be analyzed by a laboratory certified by the E.P.A. or the SWCB to conduct self-monitoring analysis to determine compliance limits for VPDES permit discharge limits. Samples shall be collected, stored, transported and analyzed in accordance with requirements set forth in Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act as published in 40 CFR Part 136 (July 1, 1991).

2. Informal testing. The following tests will be conducted on the effluent, except as noted, at a frequency specified in Table 3.4; 30 minute settleable solids (conducted on the mixed liquor suspended solids), odor, color, pH, and chlorine (after the chlorine contact chamber). In addition, systems requiring effluent dechlorination shall be tested for dechlorination at the point of discharge. These tests shall be run in the field during routine monitoring inspections. The criteria for satisfactory informal testing are contained in Table 3.3.

TABLE 3.3 INFORMAL TESTING CRITERIA (FOR ALL CLASSES OF DISCHARGING SYSTEMS)
Settleable solids	less than 65% (mixed liquor suspended solids)
Odor	Slight musky odor (MLSS not septic)
Color	less than 15 units (measured at outfall - no solids present)
pH	Same as formal compliance test limits
Chlorine	1.0 mg/1 3.0 mg/1 (measured after chlorinator) None detected (measured at the outfall)

C. Frequency of mandatory testing.

1. Formal compliance testing. Formal compliance testing as described in12VAC5-640-490 B 1, shall be conducted at the frequency listed in Table 3.4 for all discharging systems for all constituents listed under 12VAC5-640-490 B 1. Additionally, formal compliance testing may be required anytime informal testing indicates a discharging system appears to be discharging effluent that exceeds the effluent limitations set forth in the State Water Control Board's General Permit. Compliance monitoring conducted pursuant to the SWCB General Permit requirements may be submitted for one of the mandatory tests to comply with this chapter.

2. Informal testing. Informal testing, as described in 12VAC5-640-490 B 2, shall be used as an inexpensive screening method to identify systems that are potentially in violation of the effluent limitations set forth in the State Water Control Board's General Permit. Informal testing shall be conducted monthly for at least six consecutive months beginning the second full month after the issuance of the operation permit. After a discharging system has met the permit limits for six consecutive months the testing shall be conducted at the frequency listed in Table 3.4.

TABLE 3.4 FREQUENCY OF MANDATORY TESTING BEGINNING SIX MONTHS AFTER SYSTEM START-UP
System Approval Testing	Formal Testing	Informal Testing
Experimental1	Quarterly2	Monthly
Preliminary	Semi-Annually2	Quarterly
General	Annually2	Semi-Annually
1Testing on systems with experimental approval shall begin 3 months after installation and continue for 12 or more consecutive months. The initial sample testing at three months shall be formal testing and the formal testing shall continue quarterly from that time forward.
2Also see 12VAC5-640-490 D 1.

C. All treatment systems shall undergo startup testing to assess the ability of the system to comply with the established performance requirements.

1. Treatment systems are considered generally approved for the purposes of establishing startup testing requirements only when all treatment components (i.e., biological treatment unit, disinfection, dechlorination, post-aeration, etc.) of the system are considered generally approved as described in 12VAC5-640-432.

2. All new discharging systems shall undergo formal startup compliance testing for parameters limited by the General Permit. The collection, storage, transportation, and analysis of all formal compliance samples shall be in accordance with the requirements of the General Permit.

a. For generally approved systems, the first formal compliance testing event shall occur 45 to 90 days after the system begins discharging. If the formal compliance test data indicate the system is in compliance with the General Permit, then the system will revert to annual formal compliance sampling in accordance with the General Permit. The initial sample may be used to comply with the first annual sampling requirement. If the testing data indicates that any parameter is out of compliance, subsection E of this section shall apply.

b. For nongenerally approved systems, the first formal compliance testing event shall occur 45 to 90 days after the system begins discharging. Three additional formal compliance testing events are to occur quarterly and at least 60 days apart. If the four startup compliance test data indicate the system is in compliance with the General Permit, then the system will revert to annual formal compliance sampling in accordance with the General Permit. If the testing data indicates that any parameter is out of compliance, subsection E of this section shall apply.

3. Informal (process control) testing shall be conducted monthly for at least six consecutive months beginning the second full month after the issuance of the operation permit. After successful startup of the treatment system, informal testing shall be conducted semiannually at a minimum and any time formal testing is conducted. Informal testing shall be in accordance with the approved operation and maintenance manual, which shall include at a minimum the tests listed in Table 3.3. The specific test, sample location, and frequency shall be itemized in the operation and maintenance manual for the treatment system.

D. Both formal and informal routine monitoring is required after a system successfully completes startup testing.

1. After a system successfully completes startup testing, the system formal testing reverts to the General Permit monitoring frequency for the parameters limited by the General Permit. The collection, storage, transportation, and analysis of all formal testing shall be in accordance with the requirements of the General Permit.

2. Informal (process control) testing shall be conducted during routine maintenance visits. The specific test, sample location, and frequency shall be itemized in the operation and maintenance manual for the treatment system. When an operation and maintenance manual is not available, informal testing shall be sufficient to assess the treatment system's performance. Table 3.3 contains the minimum informal testing that must be conducted as appropriate for a given system.

TABLE 3.3 INFORMAL (PROCESS CONTROL) TESTING
Treatment Unit	Informal Tests
Septic tank/trash tank	Sludge depth
Suspended growth biological treatment unit	Dissolved oxygen, settleabilty, pH, odor
Fixed film biological treatment unit	Dissolved oxygen (effluent from unit), pH, odor
Chlorine disinfection/dechlorination	TRC at end of contact tank (>1.0 mg/l), TRC after dechlorination
Ultraviolet disinfection	Turbidity prior to UV
Final effluent	Dissolved oxygen, pH, odor, color

D. Nonroutine mandatory testing and inspection. E. The district health director or district sanitarian manager department may require additional formal compliance testing or informal testing, or both, as necessary to protect public health and the environment. Additional testing shall be based on observed problems and shall not be implemented routinely on all discharging systems.

1. Anytime a discharging system is found to exceed be out of compliance with the effluent limitations of the General Permit, follow-up formal compliance testing shall be repeated between 45 and 90 days after the original samples were collected and the results reported to the local health department. This follow-up formal compliance testing shall constitute a subsequent consecutive quarter for the purposes of determining compliance with12VAC5-640-380 B and D. Prior to resampling, the operator should attempt to determine the reason for the noncompliance and take corrective actions.

2. Anytime an informal test reveals an apparent a potential problem, additional formal or informal testing may be conducted to review the effectiveness of any repairs or adjustments.

3. Anytime the results of two consecutive formal compliance tests as specified in 12VAC5-640-490 B 1 subdivision C 2 or D 1 of this section result in a violat1on violation of the effluent limitations of the General Permit, informal testing shall revert to monthly frequency until satisfactory results are obtained for six consecutive months. Nothing in this section shall preclude requiring the collection of samples for formal compliance testing as described in 12VAC5-640-490 B 1 subdivisions C 2 and C D 1 of this section to determine compliance with the effluent limitations set forth in the General Permit.

E. Responsibility for testing. F. The owner of each system is responsible for ensuring that the collection, analysis, and reporting of all effluent sample tests are completed in a timely fashion and in accordance with 12VAC5-640-490 this section and 12VAC5-640-510. In addition to the mandated testing requirements contained in this chapter, the The department shall conduct, at a minimum, an annual inspection, which may include formal or informal testing at the option of the department and may conduct additional inspections at its discretion. Furthermore, the department may conduct or mandate formal or informal testing as deemed appropriate by the department. Nothing contained herein shall be construed to prohibit the department from mandating additional formal and informal testing as deemed appropriate by the department. Further, the department at its discretion may require split samples be collected at any time (i.e., for routine or nonroutine testing).

F. Monitoring contract. G. In order to assure that monitoring is performed in a timely and competent fashion, the owner of each system shall have a contract for the performance of all mandated sampling with a person capable of performing the sampling and analysis of the samples. This requirement may be met by including the performance of all testing and monitoring as part of the maintenance contract in accordance with 12VAC5-640-500 C 1. Failure to obtain or renew a monitoring contract shall result in the suspension or revocation of the operation permit as described in 12VAC5-640-280. When the district health director or the sanitarian manager find that the homeowner is capable of collecting and transporting samples to an approved laboratory in compliance with this chapter, the requirement for having a valid monitoring contract may be waived. Waiving of this requirement shall be done only on an individual basis and shall reflect the competency of the individual based on profession, training or other educational experience. Owners with existing waivers to the monitoring contract as of the effective date of the amendment to the regulations may be extended, but no new waivers shall be issued. In the event the individual for whom this section is waived fails to collect three or more of any of the required samples in any five-year period, the district sanitarian or the health director department may reinstate the requirement for a monitoring contract.

12VAC5-640-500. Maintenance.

A. General. Due to the potential for degrading surface water and ground water quality or jeopardizing the public health, or both, routine maintenance of discharging systems is required. In order to assure maintenance is performed in a timely manner a maintenance contract between the permit holder and a person capable of performing maintenance as defined in subsection E of this section is required.

B. Maintenance contract. A maintenance contract shall be kept in force at all times. Failure to obtain or renew a maintenance contract shall result in the suspension or revocation of the operation permit as described in 12VAC5-640-280. The operation permit holder shall be responsible for ensuring that the local health department has a current copy of a valid maintenance agreement. When a maintenance contract expires or is canceled or voided, by any party to the contract, the owner and maintenance provider shall report the occurrence to the local health department within 10 work days.

C. Elements of a maintenance contract. At a minimum each maintenance contract shall provide for the following:

1. Performance of all testing required in 12VAC5-640-490 B either Part I A or Part I B of the General Permit, as appropriate, and in this chapter, unless the owner maintains a separate monitoring contract in accordance with 12VAC5-640-490 F G. Note: The treatment works should be sampled during normal discharging operations or normal discharging conditions (i.e., operations that are normal for that facility). The owner or maintenance provider should not force a discharge in order to collect a formal sample, but the informal sampling should be used to identify any operational problems;

2. Full and complete repairs to the system within 48 hours of notification that repairs are needed. Any deductible provision in a maintenance agreement shall not exceed $500 in any given year for repairs (including parts and labor). Periodic (at least semiannual) inspections of the treatment works or as needed to keep the treatment system functional and in compliance;

3. Twenty-four months of consecutive coverage shall be the minimum time period a maintenance contract may be valid. A written notification to the owner within 24 hours whenever the contract provider becomes aware that maintenance or repair of the owner's treatment works is necessary. The owner is responsible for prompt maintenance and repair of the treatment works including all costs associated with the maintenance or repair. Immediately upon receipt of notice that repair or maintenance is required, the owner shall begin emergency pump and haul of all sewage generated in the dwelling if full and complete repairs cannot be accomplished within 48 hours; and

4. Electronic reporting to the department in accordance with 12VAC-640-510.

D. Public utility. In localities where a public service authority, sanitary district, or other public utility exists which monitors or maintains the systems, or monitors and maintains the systems, permitted under this chapter, the requirements for the monitoring or maintenance contract or both may be waived by the division provided the owner of the system subscribes to the service and the utility meets the minimum elements described in 12VAC5-640-490 and 12VAC5-640-500.

E. Qualifications to perform maintenance. In order to competently evaluate system performance, collect samples, and interpret sample results, as well as and repair and maintain discharging systems, an individual must be knowledgeable in sewage treatment processes. Therefore, after July 1, 1994, all All individuals who perform maintenance on discharging systems pursuant to 12VAC5-640-500, are required to hold a valid Class IV or higher wastewater works operator license or an alternative onsite sewage system operator license issued by the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals. Until July 1, 1994, individuals that can demonstrate two years of practical experience with discharging systems, with flows under 1,000 GPD, may conduct maintenance on all systems.

12VAC5-640-510. Information to be reported electronically.

A. Who is responsible for reporting. All owners Every owner issued an operation permit for a discharging system are is responsible for reporting having the results of all mandated testing and inspections submitted to the department in the form and format acceptable to the department.

B. What must be reported. All formal compliance testing, informal testing, repairs, modifications, alterations, expansions and routine maintenance must be reported.

C. When reports are due. All reports and test results must be submitted within 15 working days of the sample collection by the 15th of the month following the month in which the activity occurred.

D. Where to report results. All reports and test results shall be submitted to the local or district office of the health department electronically. When formal testing indicates that a discharge limit established in the General Permit is being exceeded or when informal testing indicates a discharging system may be in violation of the General Permit requirements, the owner shall notify the maintenance provider and the department shall be notified by the owner within 24 hours.

12VAC5-640-520. Failure to submit information.

Failure to conduct mandatory monitoring or to report monitoring results as required in 12VAC5-640-490 and 12VAC5-640-510 may result in the suspension or revocation of the owner's operation permit. The department shall notify the Department of Environmental Quality of the revocation of the operation permit.

FORMS (12VAC5-640)

Appendix I-Combined Application Virginia Department of Health Discharging System Application Form for Single Family Dwellings Discharging Sewage Treatment Systems With Flows Less Than or Equal to 1,000 Gallons Per Day and State Water Control Board Virginia Pollutant Discharge Elimination System General Permit Registration Statement for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons Per Day.

Appendix II-Completion Statement.

Combined Application-Virginia Department of Health Discharging System Application for Single Family Dwellings Discharging Sewage Less Than or Equal to 1,000 Gallons Per Day and State Water Control Board Virginia Pollutant Discharge Elimination System General Permit Registration Statement for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons Per Day (rev. 9/11)

Permit Transfer under 12 VAC 5-640-220 E (undated)

Completion Statement (undated)