Title of Regulation: 12VAC5-613. Regulations for Alternative Onsite Sewage Systems (amending 12VAC5-613-10, 12VAC5-613-90).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: June 28, 2017.

Effective Date: July 17, 2017.

Agency Contact: Allen Knapp, Director, Office of Environmental Health Services, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7458, FAX (804) 864-7476, or email allen.knapp@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia authorizes the board to make, adopt, promulgate, and enforce regulations that protect, improve, and preserve public health and the environment for the general welfare of the citizens of the Commonwealth. Subsections A and B of § 32.1-164 of the Code of Virginia authorize the board to adopt regulations governing the collection, conveyance, transportation, treatment, and disposal of sewage, including sewerage systems and treatment works as they affect public health and welfare.

Purpose: Currently, there is no single technology that can comply with all of the performance requirements for direct dispersal. Different technologies must be combined. However, the amendments would allow the possibility of using a single treatment technology to meet the performance requirements, thereby reducing costs while still being protective of public health. When the regulations were first adopted in 2011, the general sentiment at that time was to require best available technology, and costs would reduce over time. However, costs have not substantially decreased, and to date, no property owner has submitted an application to comply with the requirements for direct dispersal. Private industry is trying to meet the current standard; however, there is a need to allow for upgrades and repairs in the interim. The change in performance standards improves public health protection and reverts to the regulatory requirements that were in effect under the emergency alternative onsite sewer system (AOSS) regulations from 2009 until December 7, 2011, with the addition of total nitrogen (TN) reduction.

In regulating direct dispersal of treated effluent to ground water, 12VAC5-613-90 D 4 establishes a discharge limit of 3 mg/l TN and 0.3 mg/l TP in the Chesapeake Bay Watershed, which is the limit of technologies available in the marketplace. These requirements took effect on December 7, 2013. The limit of technology is not economically possible for many homeowners with older septic systems that already disperse septic tank effluent directly into ground water. By some estimates, compliance with current requirements can cost nearly $40,000 for many owners with previously developed properties. Operation and maintenance costs can exceed $2,000 per year. In contrast, the cost to comply with the amendments is estimated to be at least 50% less. Any system that fully complies with the more stringent requirements of the regulations (on or after December 7, 2013) would be required to continue adhering to those requirements if repaired or upgraded, unless another solution that fully complied became available.

Many existing systems do not meet site and soil criteria established under current regulations. When the existing system fails, the owner is faced with the cost of installing additional treatment or pressure dosing to repair the system. In some cases, the cost of the new treatment or pressure dosing is a barrier to repairing a failing onsite sewage system. In 2004, the General Assembly approved legislation to address this issue by amending § 32.1-164.1:1 of the Code of Virginia to allow property owners to request a waiver from additional treatment or pressure dosing requirements beyond the level provided by the existing system when repairing a failing onsite sewage system. A waiver granted under § 32.1-164.1:1 to repair a failing system is not transferable (unless specifically exempt) and expires upon property transfer.

In 2011, the General Assembly of Virginia approved legislation, which again amended § 32.1-164.1:1 and added § 32.1-164.1:3 of the Code of Virginia, to allow for the voluntary upgrade of onsite sewage systems and alternative discharging sewage systems. As amended, a property owner who voluntarily upgrades his onsite sewage system can request a waiver from additional treatment or pressure dosing requirements, similar to a waiver granted to repair failing onsite sewage systems. However, unlike waivers granted to repair failing systems, waivers granted for voluntary upgrades do not become null and void upon sale of the property.

Waivers pursuant to § 32.1-164.1:1 of the Code of Virginia allow homeowners located anywhere within the Commonwealth, including within the Chesapeake Bay Watershed, to waive additional treatment and continue to discharge untreated septic effluent into ground water. Waivers do not apply to operation and maintenance (O&M) requirements. The amendments change the performance requirements and O&M schedule for direct dispersal of a voluntary upgrade or repair; it does not change the statute, and the law allows the property owner to receive a waiver.

12VAC5-613-90 C sets stringent performance and operational requirements for all sewage systems that result in direct dispersal. These stringent requirements include: (i) quarterly sampling and remote monitoring; (ii) BOD₅ and TSS equal to or less than 5 mg/l; (iii) fecal coliform concentration less than or equal to 2.2 col/100 ml with no sample exceeding 14 col/100 ml; (iv) Total Nitrogen less than 5 mg/l; high level disinfection; average turbidity of less than or equal to 2 Nephelometric turbidity units prior to disinfection; (v) a renewable operating permit; and (vi) a hydrogeologic analysis of the receiving ground water. These requirements, while appropriate for new construction and undeveloped properties, present a significant financial barrier for a homeowner wanting to repair or upgrade an older septic system that already disperses effluent to ground water. In many cases, the owner cannot avoid having a repair or upgrade that does not directly disperse effluent to ground water.

Since promulgation of the AOSS regulations on December 7, 2011, and the effective date of December 7, 2013, for 12VAC5-613-90, the Commissioner of Health has granted more than 30 variances to owners claiming financial hardship for repairs and voluntary upgrades, and over 750 owners have waived additional requirements pursuant to § 32.1-164.1:1 of the Code of Virginia. The amendments are essential to protect the health, safety, and welfare of citizens in that they will provide a more financially attainable level of treatment for previously developed properties, still provide a high level of public health protection, and encourage owners to not waive regulatory requirements. The amendments will also eliminate the need for an individualized variance for most situations.

Rationale for Using Fast-Track Rulemaking Process: The amendments will allow more owners to affordably repair or upgrade old sewage systems that already disperse effluent to ground water while upholding strict requirements for new systems seeking to disperse effluent to ground water. This action is not considered to be controversial as it reduces a financial burden to homeowners and small business owners while improving public health and the environment.

For the fast-track rulemaking process, Virginia Department of Health staff consulted with the Sewage Handling and Disposal Advisory Committee (advisory committee), which comprises over 15 stakeholder groups, including homebuilders, realtors, well drillers, septic contractors, professional engineers, operators, onsite soil evaluators, environmental groups, and regulatory interests. On June 3, 2015, and September 16, 2016, the advisory committee discussed the amendments to the AOSS Regulations to address voluntary upgrades and repairs that disperse effluent directly to ground water. At the September 16, 2016, meeting, the advisory committee recommended the amendments be approved for the Board of Health's consideration. Only one stakeholder, Mr. Joel Pinnix, representing the American Council of Engineering Companies of Virginia, opposed the amendment because it did not include undeveloped property or new construction activities, only repairs and upgrades. The amendments do not include new construction activities because that idea is considered controversial, which requires vetting through the routine and normal regulatory adoption process. During executive branch review of the amendments in 2017, staff added 12VAC5-613-90 F to ensure that alternative onsite sewage systems that already comply with direct dispersal requirements will continue to do so when repaired or voluntarily upgraded.

Substance: The amendment to the definition of direct dispersal of effluent to ground water at 12VAC5-613-10 clarifies that excavation excludes a preexisting soil disturbance not designed to create a direct conduit or preferential path to ground water. The amendment to 12VAC5-613-90 adds subsection E to require a repaired or voluntarily upgraded direct dispersal system to meet 50% reduction of total nitrogen as compared to a conventional gravity drainfield system, TL-3 treatment, and standard disinfection in accordance with Table 2 of subdivision 13 of 12VAC5-613-80 for systems with less than 12 inches of vertical separation to ground water. Subsection F clarifies that any system designed to meet the performance requirements of 12VAC5-613-90 D and installed on or after December 7, 2013 (which is the date on which more stringent nitrogen reduction requirements took effect), will have to continue to meet the stringent performance requirements of 12VAC5-613-90 D and will be ineligible for the reduced requirements of 12VAC5-613-90 E unless another design would otherwise fully comply.

Issues: The primary advantages to the public are increased public health protection and a reduced financial burden to repair or upgrade sewage systems when requirements for direct dispersal apply. The public will also receive faster permitting because a variance or waiver to the regulation would no longer be necessary in most cases. The advantage to the agency is it will reduce staff time processing waivers and individual variances to the regulations, and, in most cases, the regulatory amendments will lead to better defined expectations for repairing and upgrading sewage systems. Currently, the commissioner has granted over 30 variances to allow for the repair or voluntary upgrade of existing direct dispersal systems. The amendments, while having less stringent requirements for treatment and monitoring of older systems seeking repair or upgrade, are still protective of public health and are within the requirements of the EPA's model program for the total maximum daily load. The amendments ease the financial burden on the homeowner or small business owner while streamlining the agency's processing of applications. 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 Board of Health (Board) proposes amendments to reduce the burden for property owners when the owner has an installed sewage system that disperses effluent into groundwater with an average daily sewage flow of less than 1,000 gallons per day, and the owner wants to repair or upgrade the installed sewage system. Additionally, the Board proposes clarifying amendments.

Result of Analysis. The benefits likely exceed the costs.

Estimated Economic Impact. The Regulations for Alternative Onsite Sewage Systems (Regulations) establish performance and operation and maintenance requirements for alternative onsite sewage systems. In the Regulations, alternative onsite sewage system (AOSS) is defined as "a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge."

Conventional onsite sewage systems use a septic tank and rely on unsaturated soil below the drainfield to treat septic tank effluent. Septic tank effluent has many of the same characteristics as raw sewage and typically contains viruses and bacteria that number in the millions per 100 ml. Typical soil treatment processes include biological breakdown of organic material, physical filtering, predation and die-off between pathogens and naturally occurring microorganisms, and chemical reactions. A septic tank and drainfield combination is the oldest and most common type of conventional onsite sewage system.

AOSSs typically utilize a treatment device that resembles a scaled-down municipal treatment plant to produce an effluent that is "cleaner" than septic tank effluent with respect to the amount of organic material, the total nitrogen load, and the number of microorganisms present in the effluent. Typically, AOSSs remove 90 to 95% of contaminants before the effluent is released into the soil. Using technology to treat wastewater before it is released into the soil allows AOSSs to achieve high performance levels on sites where limited drainfield area, soil permeability, soil saturation, groundwater, or landscape position preclude the use of conventional systems.

Under the current regulation, property owners who have an installed sewage system that disperses effluent into groundwater with an average daily sewage flow of less than 1,000 gallons per day, and wish to repair or upgrade their system, must meet the same requirements that exist for new systems. According to the Department of Health, compliance with current requirements can cost in excess of $40,000 for many owners with previously developed properties, and operation and maintenance costs can exceed $2,000 per year. In order to improve affordability and compliance, the Board proposes less stringent requirements for existing property owners to repair or upgrade systems that would cost less than fifty percent of the compliance cost in the current regulation (see Appendix for detail).

Many existing systems do not meet site and soil criteria established under the current regulations. When the existing system fails the owner is faced with the cost of installing additional treatment or pressure dosing to repair the system. In some cases, the cost of the new treatment or pressure dosing requirements is a barrier for property owners seeking to repair a failing onsite sewage system. In 2004, the General Assembly of Virginia approved legislation to address this issue by amending § 32.1-164.1:1 of the Code of Virginia to allow property owners to request a waiver from additional treatment or pressure dosing requirements beyond the level provided by the existing system when repairing a failing onsite sewage system.

A waiver granted under § 32.1-164.1:1 of the Code of Virginia to repair a failing system is not transferable (unless specifically exempt) and expires upon property transfer. In 2011, the General Assembly of Virginia approved legislation which again amended § 32.1-164.1:1 of the Code of Virginia and added § 32.1-164.1:3 of the Code of Virginia to allow for the voluntary upgrade of onsite sewage systems and alternative discharging sewage systems. As amended, property owners who voluntarily upgrade their onsite sewage system can also request a waiver from additional treatment or pressure dosing requirements, similar to waivers granted to repair failing onsite sewage systems. However, unlike waivers granted to repair failing systems, waivers granted for voluntary upgrades do not become null and void upon sale of the property.

Waivers pursuant to § 32.1-164.1:1 of the Code of Virginia allow homeowners located anywhere within the Commonwealth, including within the Chesapeake Bay Watershed, to simply waive additional treatment and continue to discharge untreated septic effluent into groundwater. Waivers do not apply to operation and maintenance (O&M) requirements. The Board's proposed amendments change the performance requirements and O&M schedule for direct dispersal of a voluntary upgrade or repair; it does not change the statute, and the law allows the property owner to receive a waiver.

Since promulgation of the AOSS Regulations on December 7, 2011, the Commissioner of Health has granted more than 30 variances to owners claiming financial hardship for repairs and voluntary upgrades, and about 750 owners have waived requirements pursuant to § 32.1-164.1:1 of the Code of Virginia. The proposed amendments will provide a more financially attainable level of treatment for previously developed properties, while still providing a high level of public health protection and encouraging owners to not waive regulatory requirements. The proposed amendments will also eliminate the need for an individualized variance for most situations. To the extent that the proposed less costly requirements do result in more affected property owners complying with the requirements, there will likely be reductions in contaminants released into groundwater and potential improvements in public health. Additional compliance would also produce additional business for septic contractors that repair or upgrade AOSSs, as well as engineering firms and authorized onsite soil evaluators that design AOSSs.

Businesses and Entities Affected. The proposed amendments potentially affect property owners with an installed sewage system that disperses effluent into groundwater with an average daily sewage flow of less than 1,000 gallons per day, septic contractors, authorized onsite soil evaluators, and engineering firms that design alternative onsite sewage systems.

Localities Particularly Affected. The Board proposes amendments that particularly affect localities near the Chesapeake Bay and within the coastal plain physiographic province of the Commonwealth since these regions are more likely to have shallow groundwater and sewage systems dispersing effluent close to, or into, the shallow groundwater.

Projected Impact on Employment. To the extent that the proposed less costly requirements do result in more affected property owners complying with the requirements, septic contractors that repair or upgrade AOSSs, as well as engineering firms and authorized onsite soil evaluators that design AOSSs may have more business, which may moderately increase employment.

Effects on the Use and Value of Private Property. The proposed amendments potentially increase the likelihood that owners of property with an installed sewage system that disperses effluent into groundwater with an average daily sewage flow of less than 1,000 gallons per day have their system repaired or upgraded.

Real Estate Development Costs. The proposed amendments do not affect costs of new real estate development, but do lower costs for repairing or upgrading some sewage systems on existing developed real estate.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments reduce the costs of repairing or upgrading sewage systems that disperse effluent to groundwater for small businesses that own property with such systems.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.