I humbly wanted to make you aware of an apparent statutory conflict in the text of this document. Specifically I refer to the phrase "an authorized VDH employee" that appears in the last line of section C3A.

This phrase references the apparent subject of the sentence which is "professional engineer, onsite soil evaluator, and VDH inspection reports and completion statement". The case is made that these forms must be certified by the appropriate licensed regulant, I.e OSE forms by an OSE, P.E. forms by a P.E. and VDH forms by an authorized VDH employee. VDH may not create an inspection form or designate a work product that is outside the scope of the practice or duties of an OSE. Hence any inspection conducted by VDH must be signed by an OSE or a supervisory OSE overseeing the work of a non-licensed OSE or by a P.E..

I believe that this must be changed before it becomes law as it is in diametric opposition to the existing Code of Virginia and the rest of the Virginia Administrative Code that deals with our occupation and trade.

Correcting this statutory conflict will in no way affect the ability of Contractors to be licensed. It will simply insure that the documentation that is used to justify their licensure, when obtained from VDH was generated in accordance with the Code of Virginia, the Virginia Administrative Code and the AOSE regulations.

Tony Bible

I object to the use of the Fast-Track process on this regulatory change.

In reviewing the initial regulatory documents I have discovered that the FORM TH-04 "Fast Track Proposed Regulation Agency Background Document dated on the Town Hall website as January 19, 2010 makes no mention of 18VAC160-20-97.C.3A but rather it stops at 18VAC160-20-97.C.2.

The Attorney General Certification that was given to DPOR pertaining to this proposed regulation is also dated as January 19, 2010. This certification is to determine if the proposed regulations are in conflict with the US Constitution, the VA Constitution and any other Federal and State Laws.

Is it not reasonable then to ask if perhaps the allowance in 18VAC160-20-97.C.2 for an authorized VDH employee who is not an OSE or a PE to certify documents which may only be certified by an licensed OSE or a PE was added to the text after the Attorney Generals Certification was conducted?

Allowing a non-licensed person to certify work that may only be conducted by a licensed regulant appears to be in conflict with the Code of Virginia and the Virginia Administrative Code.

18VAC160-20-97 C.3.a

Regulation of Onsite Sewage System Professionals transferred from VDH to the WWWOOSSP Board on July 1, 2009.  The APELSCIDLA board regulates Professional Engineers.  Pursuant to § 32.1-163.5 C, § 54.1-402 A, § 54.1-402 A.11 , § 54.1-406 A, and § 54.1-2302, an "authorized VDH employee" cannot perform the duties of a licensed Professional Engineer or Onsite Soil Evaluator without a valid license under the current statutory framework.  Inspection Reports and Completion Statements fall within the duties of a PE or OSE.  Therefore, an "authorized VDH employee" has to possess a valid license in order to certify inspection reports and completion statements. To ensure that this proposed text is consistent with § 54.1-201 A.5 and the aforementioned sections of the Code of Virginia, I recommend 18VAC160-20-97 C.3.a be revised as follows:

"...All professional engineer, onsite soil evaluator, and VDH inspection reports and completion statements shall be certified by a licensed alternative onsite soil evaluator or a Virginia licensed professional engineer, as appropriate;"

The duties of an Onsite Soil Evaluator (OSE) include the design of conventional and alternative onsite sewage systems, pursuant to 54.1-402 A.11.  The OSE is unique in that it is the only design profession regulated by the WWWOOSSP Board.  It is certainly difficult to account for the differences between evaluators/designers, installers, and operators in a single set of regulations.  But the differences between these professions are real and should be accounted for.  The unintended consequences of defining supervision of evaluators/designers, installers, and operators with a broad stroke could potentially have a negative impact on both regulants and the public.

The proposed text changes to "Direct supervision" and "Direct supervisor" do not articulate the degree of supervision and control necessary for design professionals (OSEs) to exersise in the design process.   This supervision and control protects the health, safety, and welfare of the public.  The APELSCIDLA Regulations, which regulate Professional Engineers, define "Direct control and personal supervision" as:
 

18VAC10-20-10. Definitions

"Direct control and personal supervision" shall be that degree of supervision by a person overseeing the work of another whereby the supervisor has both control over and detailed professional knowledge of the work prepared under his supervision and words and phrases of similar import mean that the professional shall have control over the decisions on technical matters of policy and design, and exercises his professional judgment in all professional matters that are embodied in the work and the drawings, specifications, or other documents involved in the work; and the professional has exercised critical examination and evaluation of a(n) employee’s, consultant’s, subcontractor’s, or project team members’ work product, during and after preparation, for purposes of compliance with applicable laws, codes, ordinances, regulations and usual and customary standards of care pertaining to professional practice. Further, it is that degree of control a professional is required to maintain over decisions made personally or by others over which the professional exercises direct control and personal supervision. “Direct control and personal supervision” also includes the following:

1. The degree of control necessary for a professional to be in direct control and personal supervision shall be such that the professional:
a. Personally makes professional decisions or reviews and approves proposed decisions prior to their implementation, including the consideration of alternatives, whenever professional decisions that could affect the health, safety, and welfare of the public are made; and
b. Determines the validity and applicability of recommendations prior to their incorporation into the work, including the qualifications of those making the recommendations.

2. Professional decisions which must be made by and are the responsibility of the professional in direct control and personal supervision are those decisions concerning permanent or temporary work that could affect the health, safety, and welfare of the public, and may include, but are not limited to, the following:
a. The selection of alternatives to be investigated and the comparison of alternatives for designed work; and
b. The selection or development of design standards and materials to be used.

3. A professional shall be able to clearly define the scope and degree of direct control and personal supervision and how it was exercised and to demonstrate that the professional was answerable within said scope and degree of direct control and personal supervision necessary for the work for which the professional has signed and sealed; and

4. No sole proprietorship, partnership, corporation, limited liability company, joint venture, professional corporation, professional limited liability corporation, or other entity shall practice, or offer to practice, any profession regulated under this chapter unless there is a resident professional for that service providing direct control and personal supervision of such service in each separate office in which such service is performed or offered to be performed.

My recommendations are twofold.  First, I recommend the following text amendments to the definitions of "Direct supervision" and "Direct supervisor" in 18VAC160-20-10:

"Direct supervision" means being responsible for the compliance with this chapter by any unlicensed individual who, for the purpose of obtaining the necessary competence to qualify for licensure, is engaged in activities requiring an operator, or installer, or evaluator license.

"Direct supervisor" means a licensed operator, or installer, or evaluator who undertakes the supervision of an unlicensed individual engaged in activities requiring a license for the purpose of obtaining the competence necessary to qualify for licensure and who. The direct supervisor shall be responsible for the unlicensed individual's full compliance with this chapter.

Second, I recommend amending 18VAC160-20-10 to define "direct control and personal supervision" specifically for OSEs overseeing the work of another.  Because licensed OSEs are granted the authority to design onsite sewage systems pursuant to 54.1-402 A.11, I recommend utilizing applicable language from the APELSCIDLA Regulations to craft this definition. 

Per my previous comments, I object to the Fast-Track rulemaking process for the proposed text revisions to these regulations.  Thank you for your consideration.

While I am sympathetic to the Board, and the VDH for their interest in cleaning up loose ends within the regulatory environment, I oppose this effort to fast track a change to the Installer’s Regulations. If there shall be changes within the Regulation they should be consistent with the intent of the legislature and VDH in establishing a licensure which delivers a professional service to the public.

The installers and the public benefit if there is less ambiguity regarding who is licensed to evaluate, design, permit or approve installations. Please clearly define who is authorized to take the responsibility for adjustments which may be required for a particular installation to comply with the Regulation, and the intent of the Licensed Onsite Evaluator or Professional Engineer responsible for the permit. Certifying an installers work requires a clear and consistent authorization.

About 2/3 of the OSE in the Commonwealth are currently employees of the VDH. However the Agency has not required staff to utilize their OSE designation while permitting or certifying design and inspection documents. I am not aware of any guidelines or Regulations authorizing an “EHS” to certify onsite sewage installations.

The public deserves a consistent means of assigning responsibility for the design and construction of improvements to their real property. And while the transition will be complicated I believe the public interest is best served by following the lead of Counties wherein all site evaluations, designs, installations and certifications are performed by the private sector with the VDH maintaining a regulatory and records keeping function. Clearly the old model of EHS providing field support for home construction is out-dated and the regulations should reflect a phasing out and/or clarification of responsibilities.

Thank you for soliciting our comments; Jeff T. Walker; AOSE

I object to the Fast Tracking of the proposed Amendments to the Definations of Supervision, SDS Experience and Document Requirements for Installers because it appears to include Soil Evaluators as well as Septic Installers. This should be handled through the regular state process for proposed changes to regulations.

Respectfully,

Frank R. Lee

§ 54.1-201.5 of the Code of Virginia states that the Board has the power and duty “To promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners and to effectively administer the regulatory system administered by the regulatory board."

Given that over two years have elapsed since these proposed changes were adopted by the Board, some of the proposed text can no longer be deemed necessary or accurate with respect to the statutory framework. These proposed changes may impact the quality of training and level of experience obtained for several catagories and classifications of licenses held by system operators, installers, and soil evaluators. The Board will potentially bear the burden and unintended consequences of this Regulatory Action for years to come if these changes become permanent without further review.

Please note my objection to the Fast-Track Process for these proposed text changes to the Virginia Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals Regulations.

In addition please forward the proposed changes with my objection to the Commerce and Trade Standing Committee and the Joint Commission on Administrative Rules for their review. Thank you for finding these changes controversial as written and allowing the initial publication of this fast-track regulation to serve as the Notice of Intended Regulatory Action.

I object to the proposed regulation changes be  “fast tracked”.  They should be review in a public forum. 

Although the changes appear to be addressing installers only, I find certain items troubling and in need of clarification.

The definitions of Direct Supervisor and Direct Supervision as proposed are no longer specific to licensure.

Secondly, 18VAC 160-20-97C. (5) 3a inserts the term “authorized VDH employee”.  Although the term arises out of language specific to installers, the undefined term, coupled the above definitions is of concern.

Could these changes be subject to interpretation in the future and applied to field EHS’s under the “supervision” of an “authorized VDH employee”?.

I am in full agreement with previous comments. 

I object to the proposed regulation changes be  “fast tracked”.  They should be reviewed in a public forum. 

18VAC 160-20-97C. (5) 3a inserts the term “authorized VDH employee”. These type of general, undefined terms, need to deleted, at the very least the public should be allowed to comment.

I  fully agree with previous comments, such as,

(Could these changes be subject to interpretation in the future and applied to field EHS’s under the “supervision” of an “authorized VDH employee”?.)

All items should be open and available for comment in a public forum.  Stakeholders such as contractors, AOSE's and local regulators must be involved.

I object to the Fast Tracking o the proposed amendments to the definitions of supervision, SDS experience, and document requirements for installers for the following reasons:

1. It appears that this includes soil evaluators and designers.

2. I see no reason why the fast tracking process should be used for changes to regulations in this instance.

3. I feel all changes to the regualtions should be handled through the normal process and go to the state legislators. I'm sure there are some exceptions where fast tracking could be used but I see no reason for it in this case.

This appears to be a "back door" way to get changes without the approval from State Legislation.

I should have added language to my comment above specifically stating I "emphatically oppose and object to any fastracking of regulation without the direct involvement of private DPOR AOSE license holders. Private AOSE license holders should be directly involved in the development and approval of language and changes of existing or proposed regulation.  Changes in policy can have a drastic effect on the legitimacy, workload, and scope of our work; therefore all parties involved should have an input on these proposed changes.

I strongly object to fast tracking this legislation. "authorized VDH employee" is unacceptable in this day and age of licensing requirements. Correct me if I'm wrong but didn't this industry just go through a 180 degree turnabout to remove "authorized" from our credentials? And now VDH wants to put it back in? This proposed legislation needs to be thoroughly scrutinized and definately not "fast tracked".

No to fast tracking. The changes that are proposed need to be commented on by the public. These changes are giving  VDH another way out. A  valid license needs to be held by all VDH employees and soil evaluators who review private sector work or actually go out in the field to do an evaluation, or inspect an existing sewage disposal system for SAP.

Pardon our anonymity; unfortunately there is not a contractor in the state that is not afraid of VDH since their employees have the power to make or break our livelihood.

We object to another fast track move to re-regulate our work, or open the doors for inexperienced contractors.

Those contractors who applied for licensure, paid the fees, and paid for the education and testing ought to deserve the respect of the system. Instead we find the government opening the door to other contactors who were late to sign on, or who since they have a backhoe and a trailer decided they ought to get licensed too. These firms shold be required to take the training and learn their responsabilities before they are granted a license.

If the public is going to trust a license there needs to be a stable platform to authorize an installer who has done a reputable job in installing a system. It is very rare for a system to go in the way the designer intended, but it's equally rare for that discrepency to affect the function of that home's drainfield. It takes a person with experience to work with a contractor to approve a system. We would like for the VDH to exit the approval system, the old guard of EHS who knew their jobs have passed, the industry should move toward a privatized design system. Doing so will be better for consumer, environment and contractor alike.

I would like to object to the use of Fast Tracking for these proposed regulatory changes, especially in regards to 18VAC 160-20-97C. (5) 3a which inserts the term “authorized VDH employee”.  Since the Onsite Soil Evaluator (OSE) is now a licensed profession regulated by DPOR with OSEs both working in the public sector for VDH as well as in the private sector it would seem that the term "authorized VDH employee" would conflict with the licensing regulations enforced by DPOR.  OSEs working for VDH should be held to the same strict licensing standards and requirements that OSEs are held to who work in the private sector.  I therefore request that these regulatory changes not be Fast Tracked but instead vetted through the normal legislative process with public review and comment. 

I also agree with the previous commentors who have also objected to Fast Tracking.

  I would like to strongly object to the Fast Tracking of the proposed changes , specifically 18VAC 160-20-97C.

  Much work was done by both public and private individuals alike to ensure that ALL involved parties are properly trained licensed and held accountable in the on-site industry. I feel that parts of the proposed changes to the Regulations undermine these efforts and should be subject to normal legislative and public review. The Fast Tracking of these proposed changes should not even be a consideration and is viewed by many as a back door attempt to seperate public and private individuals in the Commonwealths on-site industry.

No need to restate the obvious.  This needs to go to public review and comment.

As stated numerous times by previous objectors, please accept my objection to the fast track process. The definition changes appear to be vague in nature and may lead to further confusion by our regulant community. As stated in the proposed regulations; "Direct supervisor" means a licensed operator, installer, or evaluator who undertakes the supervision of an unlicensed individual engaged in activities requiring a license for the purpose of obtaining the competence necessary to qualify for licensure and who. The direct supervisor shall be responsible for the unlicensed individual's full compliance with this chapter. The direct supervisor within the VDH/OSE community in many cases is the same person who will provide a regulatory approval. Inadvertently, this will create a conflict of interest.

18VAC 160-20-97 C-3a

The term "authorized VDH employee" appears to be vague and subject to scrutiny. Please define what an "authorized VDH employee" consists of.

18VAC 160-20-97 C-3b

AOSE/professional engineer inspection report and completion statements shall be certified by either an authorized onsite soil evaluator or a Virginia licensed professional engineer;--please define what "certified" or what tasks must be completed in order to "certify". Furthermore, the term "AOSE" appears to be irrelevant in the context used within this section. Only systems installed in the past 36 months may be used for experience credit. The "Authorized Onsite Soil Evaluator (AOSE) expired on June 30, 2009, which exceeds the three (3) year time window.

Thank you for allowing me to express these concerns in writing for your consideration

Earnestly,

 James B Slusser, AOSE 1072