The proposed regulation is a burdensome regulation.  Take an example of a company with 40 employees that provides design, installation, and operation services.  If all of the employees are cross trained that will require 120 licenses by the owner of that company.  License cost alone will cost $12,000.00.

Where do these costs get offset to?  The consumer will pay the difference! 

The senior licensed person is responsible for those who work under his/her supervision.  Why license everyone when the master is held for final judgement?

Disgusted.

Please enter (3)-  add phrase "or stayed at a holiday inn during training period

how does the board justify three 10 hour days of class to 3 months of on job training?  This doesn't happen anywhere in real life situations other than DPOR. 

Dear Board Members,

Please consider the follow request at your discretion.

DPOR Justification

This also allows the Board to take disciplinary action, if necessary, against the licensee actually performing the regulated activity as, currently, the Board cannot take disciplinary action against an individual who is performing the work but is not a licensee of the Board. July 12, 2016

As per the public interest, failure by DPOR to enforce existing rules and policies when allegations are made against employees of the Virginia Department of Health(VDH) have established an enforcement bias among industry professionals.  The very purpose of of having a responsible party/person is to avoid such controversial topics.  While this Board has attempted to hold the newly created "unsupervised" person accountable, the superior providing oversight will be equally responsible for any disciplinary action.  

The proposed repeal of the existing regulation has less to do with protecting public safety, welfare, and health; more protection of sovereign authority of another state agency.  Public record clearly marks the boundaries of our current dilemma.  On September 27, 2011- The Virginia Department of Health embarked on a mission to alter the course of commerce and trade in Virginia.  Let the public record be shown, DPOR collusion with Virginia Department of Health commenced with a request from Mr. Allen Knapp (VDH official) and Mr. Dan Richardson (VDH official).

Sept 27, 2011
Mr. Allen Knapp and Mr. Dan Richardson of the Virginia Department of Health (VDH) addressed the Board concerning the adverse impact on VDH of the following interpretation made by the Board during its June 21, 2011 meeting:  "The Board agreed, without dissent, that a licensed conventional or alternative onsite soil evaluator, as appropriate, shall be present and shall provide direct supervision to unlicensed individuals engaged in activities requiring an evaluator license." 

Mr. Knapp and Mr. Richardson stated the VDH employees licensed as onsite soil evaluators by the Board relied on unlicensed VDH employees to do field work.  The unlicensed employees have completed the VDH onsite soil evaluator training but do not yet have sufficient experience to qualify for a license from the Board.  The licensed employees supervise the activities of the unlicensed employees and assign only field work that the unlicensed employee is competent to perform.  The licensed employee is responsible for compliance with all pertinent regulations by the unlicensed employee.  The Board's interpretation that the licensed employee be present and directly supervise all work performed by the unlicensed employee has added VDH travel costs and will require additional staff to be hired and trained.

Mr. Knapp suggested that an interpretation requiring an employer-employee relationship or a contract between the licensed onsite soil evaluator and the unlicensed individual performing the onsite soil evaluator tasks at the licensed onsite soil evaluator's discretion would address public health and safety concerns.  The licensed onsite soil evaluator would be responsible for full compliance with the Board's regulations. ( WWWOOSSP Board Minutes, 2011)

 Did the Board alter existing guidance document(s) for VDH as being sovereign or as a market participant?

The regulatory scheme warrants further investigation to determine if; (1) "routine" meetings between DPOR and VDH violated any applicable sections of Federal or State law and (2) actions have influenced any anti-competitive behaviors and (3) the resolve allegations of monopolization by VDH while following this request to WWWOOSSP Board.

Respectfully,

James B Slusser

Does the WWWOOSSP Board have authority to require OSE licensure despite the APELS Board regulation of professional engineers? The proposed text specifies anyone designing onsite systems must hold the onsite soil evaluator license. This language further supports our contention that the OSE license belongs at APELS.

18VAC160-40-230. License required.
A. Notwithstanding the provisions of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, no
individual shall [ evaluate soils and soil properties for suitability as locations for or design conventional or
alternative onsite sewage systems perform the duties of an onsite soil evaluator ] without possessing a valid
license issued by the board.

I applaud the inclusion of the requirement of signature(s), dates, and license number to final work products as a safeguard to the safety, health, and welfare of the public.

Has the Board considered what assurance the public or another professional has regarding articals of service.  It remains a widespread conclusion of all design practices that without a regulated seal any number of faux seals are in widespread distribution and may be attached to certify a document which serves to confuse issues of responsibility or authenticity. 

Did the Board intend to create a Christmas tree of red tape for the public to sort out in finding responsible party?

B. [ The licensee shall sign, date, and include his license number on all final work products prepared or reviewed and approved by the licensee. For work products performed by a journeyman licensee, the master licensee providing direct supervision shall sign, date, and include his license number, along with the journeyman's signature, date, and license number on the final work product. A journeyman licensee shall not submit a work project as final without the applicable master licensee's signature, date, and license number.

Confusion remains over which pages of a document should bear a symbol of authenticity; where must a seal be affixed (e.g. every page, cover sheet, the site plan, survey plat signature block).

The Board in response to comments advocating a requirement to offer a written document defining duties scope of services and disclosure (customarily known as a contract); replies it "does not have the statutory authority to regulate firms."  Recommend statutory review to determine whether the Commonwealth has authority over a firm (an entitity with an organizing principle); to wit:

 C. D. ] A licensee who has direct knowledge that another individual or firm may be violating any of the provisions of this chapter or the provisions of Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia shall immediately inform the board in writing and shall cooperate in furnishing any further information or assistance that may be required.

18VAC160-40-490. Licensee responsibility.

B. [ The licensee shall sign, date, and include his license number on all final work products prepared or reviewed and approved by the licensee. For work products performed by a journeyman licensee, the master licensee providing direct supervision shall seal, sign, date, and include his license number, along with the journeyman's signature, date, and license number on the final work product. A journeyman licensee shall not submit a work project as final without the applicable master licensee's signature, date, and license number.

Each cover page, original site plan, and final as builts should be bear the master licensee seal. 

• Your stamp or seal should be under your control at all times.
• When you place your stamp or seal on a final document, you must sign in permanent ink across the face of the stamp/seal and place the date you signed immediately next to your signature.
• When sealing or signing electronic documents, follow the board’s

Please find attached reference from licensed designers in washington.

How to get your stamp or seal

It’s your responsibility to get your stamp or seal. Request your stamp or seal from a rubber stamp company, and make sure it contains all of the following:

• State of Washington
• On-site Wastewater Treatment System Licensed Designer
• Your license number
• Your name as shown on your wall certificate
• Space to indicate the date your license expires. You may use any of the following formats:
  • EXPIRES 00/00/00
  • EXPIRES 00/00/ (year left blank to be handwritten on the document)
  • EXPIRES (entire date left blank to be handwritten on the document)

Approved design

The approved designs for on-site designer stamps and seals is shown above. You may use it in any size, as long as the stamp or seal is fully legible.

How to use your stamp or seal

• Your stamp or seal should be under your control at all times.
• When you place your stamp or seal on a final document, you must sign in permanent ink across the face of the stamp/seal and place the date you signed immediately next to your signature.
• When sealing or signing electronic documents, follow the board’s
  
  
  Purpose:  This should help protect original ownership issues and enable citizens to determine authenticity of original documents from a licensee.
   

I object to this board creating a journeymen license.  License classes should be reserved for persons who have been tested.  Perhaps the board should have establishing a registration program for unlicensed persons to enter the work force.

You provide no substance for the public to rely upon if the new regulations will allow a journeyman to be present with no superior on the job site.  When a complaint is to be filed, this board will attempt to discipline the journeyman and supervisor? Regulation seems counter productive and existing system should have provided enough degree of regulation to protect the public.

Design professionals should be required to seal all final documents.  The board needs to recognize what seals are to be deemed valid on construction plans.  Failure to recognize sealing requirements will jeopardize license holders when others utilize prior plans and documents.  Former DPOR staff member Mark Courtney encouraged the use of faux seals which anyone can attach to plans.  Clients have already submitted plans with the "signature page" from a different set of plans in order to elude paying their designer.  All plans must bear a recognizeable seal whereby the a measure can be established.

What procedures does the board have to prevent unauthorized use of data?

Complaints against firms for fraudulent of misleading practices will be difficult to achieve.  Does this board regulate individuals or firms?  If the firm is responsible for establishing the fraudulent condition, will the board hold the licensee responsible or the administrators?

The board should consider this problem and what impacts may follow.

Creation of the journeymen category does not appear to be supported by stautory authority.  I object to creating additional license classes without statutory authority.  please remove

Why the difference of CEU's among license holders?  All license categories should have the same number of training hours.  A journeyman would have no testing is permitted to have reduced training?

suggest amending language to require all license holders to hold same number of credits.

Why did the WWWOOSSP board not keep all of the operators under the same set of regulations?

"Direct supervisor" means a licensed waterworks or wastewater works operator who assumes the responsibility of direct supervision

how does direct supervisor only apply to waterworks and wastewaterworks operators?  Operating an onsite system should and does have the same concnerns.  Seperating operators was a grave mistake by this board.

Onsite sewage operators should be added to the "operator" class of professionals, contractors housed with contractors, and soil evaluators/designers should be regulated by existing design professionals.  Direct supervisor must apply to all classes of operators.

suggestion to add "direct supervisor" to all classes of operator licenses.

10. Making any misrepresentation or engaging in acts of fraud or deceit in providing professional services.

Does this refer to the firm or individual?  Is there a requirement to report your firm for any of these alleged violations?

"Profession" means the practice of onsite soil evaluation, onsite sewage system installation, and onsite sewage system operation.

suggestion:  remove the practice of onsite soil evaluation and replace with performing the duties of an onsite soil evaluator

as proposed, this language fails to capture design and consultation components of the OSE license

VDH currently has the sewage appeals board that allows owners of a septic denial or failed system to file address.  Would a decision recorded by the sewage appeals also pertain to this board?  VDH staff doesn't have the ability to have a defense and are required to follow VDH procedures.

So, will a PE with an OSE license under these proposed regulations be allowed to use VITA data?

For instance,

18VAC160-40-230

Part V
Onsite Soil Evaluator

18VAC160-40-230. License required. [Text as Proposed]

A. Notwithstanding the provisions of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, no individual shall [ evaluate soils and soil properties for suitability as locations for or design conventional or alternative onsite sewage systems perform the duties of an onsite soil evaluator ] without possessing a valid license issued by the board.

Also,

Pursuant to Section 54.1-402, paragraph C of the Code of Virginia, which is quoted below, this data may not be used for purposes listed in said paragraph C, since the data was not created, nor is it maintained under the supervision of a licensed land surveyor.

C. Persons utilizing photogrammetric methods or similar remote sensing technology shall not be required to be licensed as a land surveyor pursuant to subsection B of 54.1-404 or 54.1-406 to: (i) determine topography or contours, or to depict physical improvements, provided such maps or other documents shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination, or (ii) graphically show existing property lines and boundaries on maps or other documents provided such depicted property lines and boundaries shall only be used for general information.

Any determination of topography or contours, or depiction of physical improvements, utilizing photogrammetric methods or similar remote sensing technology by persons not licensed as a land surveyor pursuant to 54.1-406 shall not show any property monumentation or property metes and bounds, nor provide any measurement showing the relationship of any physical improvements to any property line or boundary. Any person not licensed pursuant to subsection B of 54.1-404 or 54.1-406 preparing documentation pursuant to subsection C of 54.1-402 shall note the following on such documentation: "Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.

Suggest the proposed language be amednded under 18VAC160-40-470, as follows:

18VAC160-40-470. Prohibited acts.

15. Failing to act in providing professional services in a manner that safeguards the interests of the public, unless the appropriate class or category of licensee is preparing documentation and copying VITA data  pursuant to subsection C of 54.1-402.

§ 54.1-2301 provides statutory authority for adopting regulations for the licensure of onsite soil evaluators, operators of alternative onsite sewage systems and installers of alternative onsite sewage systems. Onsite soil evaluators are to be of at least two classes, one of which is conventional.

There is no statutory authority for licensure or regulatory oversight related to conventional installers or conventional operators. The proposed regulation exceeds the Board's statutory authority in this matter.

§ 54.1-2301 provides specific statutory authority related to licensure of soil evaluators, alternative system installers and alternative system operators. Subsection D. (e) further requires the Board to create at least two classes of evaluators, one of which is to be conventional. However, the enabling statute is silent on the creation of classes for the installer or operator license.

The Board's authority is specifically related to licensure of individuals as authorized (soil evaluator, alternative installer or alternative operator). There is no statutory authority for the further division of the installer or the operator into multiple classes. The division of these two licenses into classes is not a criterion for licensure as provided for in D.(f).

Therefore, the subdivision of the two licenses into “journeyman” and “master” classification is not expressly authorized by the statute and exceeds the Board's authority.

§ 54.1-2301 provides specific statutory authority related to creating regulations for licensure. The statutory authority does not expressly authorize the Board to adopt regulations pertaining to “Standards of Practice and Conduct” (Part IX). Therefore, all the elements of Part IX exceed the Board's statutory authority.

The referenced section unlawfully undertakes to modify the statutory requirements regarding professional licensure without explicit authority from the General Assembly.

or rhetorically,  How can a regulatory board create an exemption to the Code of Virginia?

The American Council of Engineering Companies of VA (ACEC/VA) represents the business interests of the consulting professional engineering community. The proposed regulation appears to exclude professional engineers that have been licensed and are authorized to do this type of work, including the evaluation, planning and design of private utilities.

The current statutory requirement for licensing as an onsite soil evaluator is found in § 54.1-2302 and is “inclusive”, meaning all professionals with valid licenses can perform the duties of an onsite soil evaluator. In addition, § 32.1-163.6 specifically authorizes the Board of Health to accept treatment works designs from all professionals with valid licenses. Both of these statutory authorities include onsite treatment works which includes the land that will be an integral part of the treatment or disposal process.

The new regulations exclude Professional Engineers, who are currently authorized by statute to perform the duties of an onsite soil evaluator without having a specific license issued by the WWWOOSSP Board. The use of the phrase “Notwithstanding the provisions of Chapter 4(§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia…”  the Board is proposing to exclude other duly authorized licensees from performing the prescribed duties.  We do not believe that there is statutory authority for the Board to create an exclusionary regulation and the inclusion of such a phrase is contrary to the “inclusive” statutory language in § 54.1-2302.

We respectfully request that the Board reconsider the phrasing and revise it so it is consistent with the statutory language contained in § 54.1-2302.

Please consider adding proposed definition to include. 

"Owner" means the Commonwealth of Virginia, or any political subdivision thereof, any public or private institution, corporation, association, firm or company organized or existing under the laws of this Commonwealth or of any other state or nation, or any person or group of persons acting individually or as a group, who own, manage, or maintain waterworks or wastewater works. operate a waterworks or wastewater works, perform the duties of an onsite soil evaluator, or install or operate an alternative onsite sewage system.

Definitions in statute fail to recognize addition of the onsite sewage system professional component of the board. 

18VAC 145-20-10 "Field Study" means the investigation of a site to secure soils information by means of landscape analysis and soil borings, excavations or test pits...

18VAC145-20-90  1. Soil evaluation. Conducted at least 20 soil evaluations for specific land uses under the direct guidance of an experienced technical supervisor. Examples of such uses include but are not limited to, onsite wastewater disposal,....

A licensed soil scientiest is not allowed to provide this information  to a regulatory body, individually or with another licensed professional.

The regulation is discrimiinatory by preventing a licensed soil scientist from performing studies which he/she is authorized by by Title 54.1, chapter 22.

18VAC145-20-160. Soil Scientist : Professional Conduct  exceed those required by the 18VAC160-20-140. Discipline.  Professionalism vs. reasonable care.

.

18VAC160-40-10. Definitions.

Suggest adding language to definitions as taken from existing tradesmen regulations. (may need slight modification)

“Supervisor” means the licensed master or journeyman tradesman who has the responsibility to ensure that the installation is in accordance with the applicable provisions of the Virginia Uniform Statewide Building Code, one of whom must be on the job site at all times during installation.

Adds clarity to proposed rule.

Contracting tradesmen have existing prerequisites for entry.  As detailed below, how did the WWWOOSSP Board draft a proposal to exempt testing while ALL other journeymen in the tradesmen category?  WWWOOSSP Board appears to be arbitrarily and capricious in establishing entrance criteria.

Please consider revising the proposed regulations to compliment experience, education, and testing required by other boards that regulate existing journeymen.  Three years minimum experience should be required in order to represent any entity while on an active job site.  

(This document may only be reproduced for public benefit)

Soil scientists are entitled to the entire program.  Engineers can't do soil work.  Don Alexander discriminated against soil scientists and this program must return to the Board of soil scientists.  All soil scientists oppose practicing soil science under this board.

This comment was not posted by William F. Sledjeski.  I intend to file a complaint with DPB and request  the DPOR webmaster locate the source of  the posting and forward.

Proposed action:

18VAC160-40-130. Qualifications for master conventional onsite sewage system installer licenses.

Suggest striking section for regulating conventional master installers.  Code seems to indicate regulation of alternative system installers.

18VAC160-40-10. Definitions.

Suggest adding term "Trainee"

 shall require proof of at least one year of full-time practical experience in the installing or maintaining ] onsite sewage systems or assisting in the evaluation of soil sites as suitable for conventional and alternative onsite sewage systems and to design onsite sewage systems under the direct supervision of a master licensee.

This terminology is already used in other trade related industry and will allow for the professional tracking of skill and experience prior to testing.  No exam should be required.

"Residential wastewater" means sewage (i) generated by residential or accessory uses, not containing storm water or industrial influent, and having no other toxic, or hazardous constituents not routinely found in residential wastewater flows, or (ii) as certified by a professional engineer.

The board should have a process to recognize experience earned by those persons who may have an expired contractors license.  Seems they should just be required to pass the written test to become licensed.

Suggest adding language to include experience gained by those persons who have an expired license.

18VAC160-40-170. License required

A. No individual shall operate an conventional or alternative onsite sewage system without a valid [ master ]
onsite sewage system operator license issued by the board [ in the appropriate class ].

B. An individual cannot simultaneously hold valid master and [ journeyman ] onsite sewage system operator
licenses in the same class. Issuance of a master onsite sewage system operator license in a specific class shall
void the journeyman onsite sewage system operator license in the same class.

C. An individual cannot simultaneously hold valid conventional and alternative [ master ] onsite sewage system
operator licenses or conventional and alternative journeyman onsite sewage system operator licenses. Issuance of a master alternative onsite sewage system operator license shall void the conventional onsite sewage system operator license.

D. A journeyman onsite sewage system trainee operator must work under the direct supervision of a licensed master onsite sewage system operator [ with the appropriate class of license ]. [ An A master ] onsite sewage system operator is responsible for supervising the operation of the onsite sewage system by any journeyman onsite sewage system operator trainee under his responsibility.

E. Experience used to qualify for licensure cannot be verified by a journeyman onsite sewage system operator.

[ F. No individual shall act as an alternative onsite sewage system operator of an alternative onsite sewage
system that exceeds 10,000 gallons per day design flow without possessing a Class 4 or higher wastewater
works operator license in addition to an alternative onsite sewage system operator license. ]

suggestion:  remove any directives for the establishment of a "journeymen" license until statutory authority is granted by the General Assembly to create such a class.  Insert trainee

18VAC160-40-180. Qualifications for journeyman conventional onsite sewage system operator licenses.

Strike entire section that attempts to license conventional operators.  Statute directed DPOR to license alternative operators. 

 18VAC160-40-200. Qualification for exemption from examination for master conventional onsite sewage
system operator applicants.

Applicants seeking licensure as a master conventional onsite sewage system operator may be exempt from the
examination provided the applicant:

1. Is able to satisfactorily demonstrate that he has been actively engaged in performing the duties of a
conventional onsite sewage system operator for at least four years. Documentation of qualifying experience
may be verified by a [ master ] conventional or alternative [ onsite ] soil [ evaluation evaluator ], a [ master ]
conventional or alternative onsite sewage system operator, a professional engineer, or an authorized onsite soil
evaluator [ certified by VDH before July 1, 2009 ]; and
2. Meets the requirements of 18VAC160-40-60.

VOWRA lobbied very strenuously to the General Assembly to restrict "grandfathering" of operators as there is no method of assuring competency. To summarize the point, please consider the following dialogue entertained during the 2014 General Assembly session.

my problem is with an “Operator” being granted a license to manage, operate and maintain an AOSS up to 10,000 gpd without demonstrating they have the “knowledge” to do so … these guys run pump trucks and have the attitude (as demonstrated in their letter) that maintenance is nothing but “pumping and Dumping” … Managing the higher flow systems requires higher math skills, a working knowledge of some chemistry and microbiology, as well as intimately knowing HOW the systems work and WHY they work … 

Suggest striking language.  

18VAC160-40-240. Qualifications for journeyman conventional onsite soil evaluator licenses.
An applicant for licensure as a journeyman conventional onsite soil evaluator shall furnish acceptable
documentation that one of the following has been met:

The WWWOOSSP Board has no public purpose or statutory function to create a new subclass of licensure for onsite soil evaluators.  Confusion exists between the labor market of tradesmen and those persons offering professional services; I would like to elaborate on the latter.  Persons seeking licensure as a professional engineer or surveyor apply for an apprenticeship which lasts at least four years under the direct supervision of a licensed professional prior to taking the established entrance exam.  While under the direct supervision of  a licensed person, qualified persons are challenged with increasing assignments.  After the four years of practical experience and passing a state sponsored exam, those individuals are free to practice under their own license.

WWWOOSSP Board elected to abandon the existing practice on September 27, 2011 at the request of Virginia Department of Health (VDH) Director, Mr. Allen Knapp.  The Board reported Mr. Knapp as stating,

The Board's interpretation that the licensed employee be present and directly supervise all work performed by the unlicensed employee has added VDH travel costs and will require additional staff to be hired and trained.

Restructuring the onsite model for VDH was a peculiar benefit that not only impacts the public, but industry as well.  Altering the professional pathways created a vicious cycle where VDH continued to recruit and hire unlicensed persons.  After the law was changed in 2009, why was VDH allowed to persist by hiring unlicensed persons?  There is no other industry that requires a license which will allow ANY entity to hire those unlicensed.

Please find every profession or trade that requires a license prior to practicing.

• Architects
• Asbestos Workers
• Auctioneers
• Backflow Prevention Device Workers (Tradesmen)
• Barbers
• Body Piercers
• Boxers (Professional)
• Branch Pilots
• Cemetery Salespersons
• Common Interest Community Managers
• Contractors
• Cosmetologists
• Electricians (Tradesmen)
• Elevator Mechanics (Tradesmen)
• Estheticians
• Fair Housing
• Gas Fitters (Tradesmen)
• Geologists
• Hearing Aid Specialists
• Home Inspectors
• HVAC (Tradesmen)
• Interior Designers
• Landscape Architects
• Land Surveyors & Photogrammetrists
• Lead Abatement Workers
• Martial Arts
• Nail Technicians
• NG Auto Mechanics
• Onsite Sewage System Professionals
• Opticians
• Plumbers (Tradesmen)
• Polygraph Examiners
• Professional Engineers

Performing ministerial duties of state does not require a license.  Participating in a regulated profession does require a license.  Prior to  dismissing my concerns, would the WWWOOSSP Board please explain to the existing license class and public why programmatic changes were made for an agency that is meddling in commerce? 

Two ] years of full-time experience evaluating site and soil conditions and designing conventional onsite sewage
systems verified by one or more of the following: an authorized onsite soil evaluator [ certified by VDH before July 1, 2009 ], a professional engineer, or an onsite soil evaluator

suggestion:  Strike TWO and replace with FOUR (4).  DPOR arbitrarily reduced the former standard of four (4) years experience as required under the VDH AOSE program (see 12VAC5-615-230).  By reducing  practical experience time, people are acquiring a license who do not possess the minimum skills necessary to practice.  Evidence exists in site plans of VDH records.  A large portion of site plans are  free hand  and should not constitute the work product of a licensed professional.

Also, please keep in mind that the OSE license already receives an inherent reduction of education and testing while being exempt from becoming a licensed professional engineer.       

Item 2 and 3

While this appears to be an inherent bias by the Board, it does not serve the public interest.  Under the former VDH OSE program, such individuals were required to obtain six (6) years experience to meet entrance requirements.  To date, only VDH has complained about reducing entry requirements. 

WWWOOSSP Board should not be acting in any capacity to aid VDH in resolving job retention issues.  On it's face value, it appears the WWWOOSSP Board has a conflict of interest while reducing the experience time for the VDH onsite sewage system [training] program.  During the most of the drafting period of the proposed regulation, Mr. John Aulbach (VDH employee) was chair of the WWWOOSSP Board and under respectable circumstances, had a responsibility to recuse himself.  Failure to following such principles should be grounds for disqualification of the proposed regulation.

recommend Board to add six years experience to item 2 and item 3. 

ITEM 5

Suggest replacing one year of experience with four (4).  The design experience skills must be established and tested prior to practicing. During the four year term, the person seeking licensure will be able to learn how to perform deed searches, double check survey plat deficiencies, perform site plans, construction drawings,etc.

18VAC160-40-250. Qualifications for master conventional onsite soil evaluator licenses

ITEM 4:  Three Four years of full-time experience evaluating site and soil conditions and designing
conventional onsite sewage systems verified by one or more of the following: an authorized
onsite soil evaluator [ certified by VDH before July 1, 2009 ], a professional engineer, or an
onsite soil evaluator

comment:  strike three and replace with four (4).

This will allow the individual to obtain all practical field experience necessary for competency.

It seems there is a very fine line between regulating a profession for the welfare of the public and the constitutional rights of the individuals that would like to practice a common calling. As long as this serves a legitimate state interest and not the self interest of the board or other practitioners it is a viable function of state police power.  Some states regulate professions such as cat groomers, hair braiders, and shampoo technicians. It’s hard to tell just to what degree these regulations bring protection to the consumer. The Virginia Legislature has decided on a set of criteria in order to establish whether a regulation shall be imposed upon a profession. The summary is listed below.

§ 54.1-100. Regulations of professions and occupations.

The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.

No regulation shall be imposed upon any profession or occupation except for the exclusive purpose of protecting the public interest when:

1. The unregulated practice of the profession or occupation can harm or endanger the health, safety or welfare of the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

2. The practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work and labor;

3. The practice of the profession or occupation requires specialized skill or training and the public needs, and will benefit by, assurances of initial and continuing professional and occupational ability; and

4. The public is not effectively protected by other means.

No regulation of a profession or occupation shall conflict with the Constitution of the United States, the Constitution of Virginia, the laws of the United States, or the laws of the Commonwealth of Virginia. Periodically and at least annually, all agencies regulating a profession or occupation shall review such regulations to ensure that no conflict exists.

Comments on Proposed Regulations

Part V Onsite Soil Evaluator

18VAC160-40-230. License required.

A. Notwithstanding the provisions of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, no individual shall evaluate soils and soil properties for suitability as locations for or design conventional or alternative onsite sewage systems without possessing a valid license issued by the board.

Section 40-230 violates criteria #4 above. VDH reviews all OSE submittals and has the means to check for valid OSE licenses providing public protection. Declaring a simple set of motions or actions such as possessing a hand auger while walking in the woods to be prohibited would not be allowed as these don’t directly endanger the welfare of the public. (criteria #1)  Some professions have a simple work product based on a single task or action that is not reviewed by an agency. Once the task is completed the work is done, and if the task is done incorrectly then the harm is immediate.  I could see the need for declaring an action or single task prohibited if the harm is immediate.

18VAC160-40-280. Acceptable degree programs and verification procedures.

Section "A" Line #1

Please Revise line #1 to include "Engineering Technology" as this has been accepted in the past.

After reading comments, I realized most OSE's and Soil Scientist are still assigning perc rate based on soil texture by the thumb and forefinger method. The procedure for soil texture determination is not written down in any of the regulations that I can find. This procedure is so arbitrary and inaccurate compared to a constant head permeameter test why is this allowed. How is this method protecting the public.

The absence of established standards of practice in the proposed language creates an unenforceable regulation. This deficiency neither protects the public, nor satisfies requirement to define requirement of a consistent professional practice. 

DPOR under the Agency Statement asserts “The Board’s regulations are applicable to individuals and the proposed regulations include standards of practice and conduct,” and references amendments to 18VAC160-40-470. I recognize this well established concern might be addressed through a guidance document, however while the Regulation is open please consider remedy to institute language which provides recognition of the fundamental scope of practice. Following admission from the Director that the OSE is an engineering discipline it seems prudent for the board to integrate standards of practice into the OSE Regulation, specifically those aspects of which are incidental to other professions. The proposed language lacks any reference to standards of practice except penalizing violation under this section and 18VAC160-40-440.

Suggest language such as:    

18VAC10-20-730. Competency for Assignments.

A. The professional shall undertake to perform professional assignments only when qualified by education or experience, or both, and licensed or certified in the profession involved. Licensed professionals may perform assignments related to engineering and survey provided they do not hold themselves out as certified in this profession unless they are so certified by this board. The professional may accept an assignment requiring education or experience outside of the field of the professional's competence, but only to the extent that services are restricted to those phases of the project in which the professional is qualified. All other phases of such project shall be the responsibility of licensed or certified associates, consultants or employees.

B. A professional shall not misrepresent to a prospective or existing client or employer his qualifications and the scope of his responsibility in connection with work for which he is claiming credit.

C. The professional shall adhere to the minimum standards and requirements pertaining to the practice of his own profession, as well as other professions if incidental work is performed.

During prior comment periods for this and related regulation substantial remarks supported integrating standards of practice as defined under 12VAC5-615 Authorized Onsite Soil Evaluator Regulations. The amended language neglects to bring these accepted standards into the Regulation.

Further recommend Board integrate standards of practice into the OSE examination recognition of such standards, the OSE requires establishment of engineering fundamentals including drafting of site plans, assessment and reporting of topography, including elevation and contour; measurement of standoff from horizontal and vertical limitations; certification and/or seal of design specifications are made under the professionals direct supervision; and satisfy requirements of ensuring suitability for future performance. These responsibilities are unique to the engineering profession and contrary to Geology or Soil Science licensures stand alone under limited exemption to engineering licensure without requirement for a PE’s direct oversight.

In light of these substantial public concerns please consider whether regulations to date, or in the future  establish standards of practice which enable consistent enforcement of 18VAC160-40-470 and is consistent with the following requirements:

§ 54.1-404 includes requirements for the proper discharge of registered professionals

duties. Those duties include:

1. The protection of the public health, safety and welfare;

2. The maintenance of standards of objectivity, truthfulness and reliability in public

statements by professionals;

3. The avoidance by professionals of conflicts of interests;

4. The prohibition of solicitation or acceptance of work by professionals on any basis other

than their qualifications for the work offered;

5. The restriction by the professional in the conduct of his professional activity from

association with any person engaging in illegal or dishonest activities; or

6. The limitation of professional service to the area of competence of each professional.

18VAC160-40-260 18VAC160-40-260. Qualifications for journeyman trainee alternative onsite soil evaluator licenses.

Proposed rule is overly broad and will confuse the public.  Design professionals prepare plans and construction specifications for improvements to real property.  Sufficient confusion already exists between the "public" and private design professionals and the reporting mechanism instituted by DPOR. 

While I understand DPOR can not remove the installers and onsite soil evaluators from the WWWOOSSP Board, such recommendation should have been presented during the Virginia Department of Health, Safety and Health in Facilitating a Transition (SHIFT),  and Report to the General Assembly in Response to House Bill 558:A Plan for the Orderly Reduction and Elimination of Evaluation and Design Services by the Virginia Department of Health for Onsite Sewage Systems and Private Wells.

DPOR participated in each study, yet failed to disclose the continued conflicts and inability to resolve licensing concerns under the existing regulatory framework.  To date, placing the onsite sewage system professionals in a board of water and wastewater operators has been with many conflicts. The most obvious issue has been the necessity to split the regulatory framework.  WWWOOSSP is proposing to strike an entire regulation and propose virtually new text since board inclusion in 2009.  This only proves the difficulty in regulating design professionals and contractors within a board of operators.

Numerous attempts to legitimize VDH conduct in the marketplace have failed.  Actions include but are not limited to modifying WWWOOSSP Board policies to protect VDH financial interest, reducing training times for market entry, relaxing experience requirements, and establishing the journeymen program.  Following excerpt explains current model how the board regulates individual industry functions.

Regarding the development of master and journeyman license categories and any concern of an adverse impact, the Board considered alternative methods of regulation to achieve the Board’s responsibility to protect the health, safety, and welfare of the public through the license mandate codified in § 54.1-2 302 of the Code of Virginia, and reiterated in the Board Regulation 18VAC160-20-74.C effective July 1, 2009.  The Board adopted policies during the early implementation of the program to allow many in the industry to continue working without a license while under the supervision of a license-holder.

  Unlicensed contractors have been the ony concern of individuals who are working without a license.  That would include any individual or firm that does not possess a current license with the appropriate classe(s) of expertise.  Despite the Virginia Department of Health allowing those individuals to submit completion statements, it does not rise to a regulated community concern. DPOR does have authority to require individuals or firms to possess appropriate level of license.  For example,

§ 54.1-111. Unlawful acts; prosecution; proceedings in equity; civil penalty.Bills amending this Section

A. It shall be unlawful for any person, partnership, corporation or other entity to engage in any of the following acts:

1. Practicing a profession or occupation without holding a valid license as required by statute or regulation.

2. Making use of any designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.

3. Making use of any titles, words, letters or abbreviations which may reasonably be confused with a designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.

4. Performing any act or function which is restricted by statute or regulation to persons holding a professional or occupational license or certification, without being duly certified or licensed.

5. Failing to register as a practitioner of a profession or occupation as required by statute or regulation.

6. Materially misrepresenting facts in an application for licensure, certification or registration.

7. Willfully refusing to furnish a regulatory board information or records required or requested pursuant to statute or regulation.

8. Violating any statute or regulation governing the practice of any profession or occupation regulated pursuant to this title.

9. Refusing to process a request, tendered in accordance with the regulations of the relevant health regulatory board or applicable statutory law, for patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice.

Any person who willfully engages in any unlawful act enumerated in this section shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction for violating this section during a 36-month period shall constitute a Class 6 felony. In addition, any person convicted of any unlawful act enumerated in subdivision 1 through 8 of this subsection, for conduct that is within the purview of any regulatory board within the Department of Professional and Occupational Regulation, may be ordered by the court to pay restitution in accordance with §§ 19.2-305 through 19.2-305.4.

Under the proposed rule, journeyman will be treated under the same conditions as implemented by WWWOOSSP Board in the early years of licensure for onsite sewage system professionals.  Concerns regarding unlicensed individuals performing the duties of an onsite soil evaluator are only that of VDH.  In 2009, a VDH manager expressed sentiment of being required to "sign off" on the work of unlicensed individuals.

Commenter: Karl Rudolph, AOSE (public) *
18 VAC 160-20-96. Qualifications for licensure

2.  When these regulations become effective there will be an enormous number of VDH employees who will not qualify for the interim license or the conventional license (and may not qualify for years).  Is it DPOR's intention to take VDH out of the evaluation and design business?  If so, fine.  If not, has anyone considered the consequences (e.g. 1. pressure placed upon VDH employees who are licensed to sign off on the work of unlicensed individuals, 2. land owners being forced to hire private sector evaluators in localities that don't have licensed public sector employees, etc.)....

While I can not speak to the intent of Mr. Rudolf, I can express concern over the proposed regulation. 

Is the WWWOOSSP Board attempting to resolve a VDH internal employee policy issue or a genuine concern of the industry?

qualifying experience..... strike TWO and enter FOUR

Two years of practical experience is insufficient to prepare site plans and construction specifications.

As taken from the Virginia Department of Health AOSE Regulations:

2. A person who demonstrates to the satisfaction of the division that he has at least four
years of full-time experience evaluating site and soil conditions for onsite sewage
systems in Virginia in accordance with the Board of Health’s regulations (12 VAC 5-
610-20 et seq.) and a related four-year college degree such as science or engineering shall
be eligible to receive a certificate as an AOSE provided:

a. The applicant successfully completes a training course or courses designated and
approved by the division; and

b. The applicant successfully completes the AOSE written and field tests approved
by the division.

Reducing entry standards provides no benefit to the consumer or industry entrepreneurs seeking a qualified labor force.

Commenter: James Slusser *

18VAC160-40-270 Qualifications for master alternative onsite soil evaluator licenses (Item 1)

qualifying experience..... strike THREE and enter SIX

Two years of practical experience is insufficient to prepare site plans and construction specifications.  WWWOOSSP Board decision to reduce qualifying experience is arbitrary at best and lacks any fundamental merit.  Correlation may not be causation, but there is an awkward relationship between VDH  employee attrition  rates and reducing applicant qualifications seeking licensure.  Please consider Board comments on a past VDH concern.

Commenter: Jack Watts, AOSE *
18VAC160-20-96.B.1. Qualifications for licensure – onsite soil evaluators

Recommend adding another option.

e. Two years of full time experience evaluating site and soil conditions in compliance with this chapter under the direct supervision of a licensed conventional onsite soil evaluator or of a licensed alternative onsite soil evaluator, and a graduate of the VDH onsite sewage system training program.

VDH has been a trainer for Authorized Onsite Soil Evaluators for years.  

As taken from the Virginia Department of Health AOSE Regulations:

DPOR RESPONSE FROM FINAL REGULATION AGENCY TOWN HALL DOCUMENT dated March 31, 2009:

...In addition, the Board has amended the language to allow certain VDH personnel to obtain an interim onsite soil evaluator license that will be valid only for their work as an employee of VDH.

Virginia Department of Health  27 of 54
Authorized Onsite Soil Evaluator Regulations

3. A person who demonstrates to the satisfaction of the division that he has at least six
years of full-time experience evaluating site and soil conditions for onsite sewage
systems in Virginia in accordance with the Board of Health’s regulations (12 VAC 5-
610-20 et seq.) and a two- or four- year college degree shall be eligible to receive a
certificate as an AOSE provided:
a. The applicant successfully completes a training course or courses designated
and approved by the division;
b. The applicant passes the AOSE written and field tests; and
c. The applicant provides a written statement signed by a current or former
supervisor or an AOSE with a current certification stating that the person is sufficiently experienced to become an AOSE.

The WWWOOSSP Board has failed to recognize the differences of education and experience to become a VDH employee (sanitarian) and a licensed onsite soil evaluator.  To date, approximately 25 percent of VDH staff can not produce a- to scale site plan.  While the agency exempts certain sanitarian skills for VDH employment, the license skills are necessary to protect public health, safety, and welfare while providing designs to make improvements to real property.

Reducing professional entry standards provides no benefit to the consumer or industry entrepreneurs seeking a qualified labor force.

Please revise the entry standard to six years of qualifying experience for persons under this category. 

18VAC160-40-270. Qualifications for master alternative onsite soil evaluator licenses

Two years of full-time experience evaluating site and soil conditions and designing alternative onsite sewage systems verified by one or more of the following: an authorized onsite soil evaluator [ certified by VDH before July 1, 2009 ], a professional engineer, or an alternative onsite soil evaluator.

please strike Two years and replace with Four (4).  Soil scientists may have the ability to characterize soils, but lack the ability to prepare site plans and construction specifications.  The four year training requirement will enable all professionals to achieve a minimum baseline of skills to practice engineering within the scope of our license.  Engineers are not provided a relaxed standard to obtain licensure.  An OSE makes use of the same values and calculations that professional engineers rely upon.  For example, both category of professionals use the same skill set to design a pump system.