An Agency should not establish the fees for it's administerial duties, nor provide professional services to private landowners. Only the General Assembly has power of the purse, through the budget bill and therefore our elected representives retain oversight.

There have been substantial changes to the proposed language in the final regulation. By introducing fees to the proposal VDH has violated provisions of the Administrative Process Act. Specifically by failing to provide a concise statement of legal and economic basis, and it's estimated impact on persons affected, and the cost of the action to this population and the public. As stated by many professionals during the NOIRA there are substantial economic effects in providing subsidized services, in particular professional services under license to support the development of real property. Under Article 10 of the Consitution the state should not have any competitive interest in such development.

Introducing another competive interest to the duties of a regulator or code official should be avoided. Any conflict of interest should be disclosed to the public, but further undermining the VDH's authority should be avoided to preserve independent third party review of the applicant's and the greater public's interest.

 Substantial changes have been made between the draft and final regulation.  Please suspend the process.

Commerce is a common bene?t to a nation, and all her mem-
bers have an equal right to it. .Monopoly, therefore, in general, is con-
trary to the rights of the citizens. However, this rule has its excep-
tions, suggested even by the interest of the nation: and a wise government
may, in certain cases, justly establish monopolies.  There are commer-
cial enterprises that cannot be carried on without an energy that requires-
considerable funds, which surpass the ability of individuals.  There
are others that would soon become ruinous, were they not conducted
with great prudence, with one regular spirit, and according to well sup-
ported maxims and rules.

Is this proposed regulation to simply abandon cautions about well supported maxims and rules governing the agency's active market participation and fees for services that inappropriatiely compete with licensed regulants?

12VAC5-620-30. Purpose of regulations.

The board has promulgated these regulations to:

1. Establish a fee for filing an application for a permit to construct an onsite sewage disposal system or for the construction of a private well; and Establish a procedure for determining the fees for services provided by the department for onsite sewage systems, alternative discharge systems, and private wells;

2. Establish a procedure for the waiver of fees for an owner whose income of his family is at or below the federal poverty guidelines established by the United States Department of Health and Human Services, or when the application is for a pit privy, the replacement of a private well, or the repair of a failing onsite sewage disposal system.

Please accept my objection to the major changes.  Also, the attorney general representative who signed off on this proposed regulation now works for VDH?  Does Kari Atwood have to recuse herself from any of these public matters?

Ignoring the "elephant in the room" (that the Health Deprtment is providing services that should be the product of the private sector), I think a fee study is an appropriate way to establish fees and the legislation should include a provision that a fee study be performed every 5 years or so. I have always felt that all citizens of the Commonwealth should not have to underwrite services perfomed for a select few: namely, those people that are building a new house, addition or new well. Affected persons should pay for services rendered.

The fees will have a profoundly negative effect on the licensed individuals providing site evaluation and /or design services for onsite sewage disposal systems, single family discharge sewage systems, and installation of private wells. The fees for VDH services are essentially the same, only slightly higher than the fees for VDH to review applications that are submitted along with OSE/PE design information.

https://www.youtube.com/watch?v=aJeuD2o7-4U&list=PLTZdvRZQGUKoltF1hXOmgKUGirCkbKBeh

The health inspector has a serious conflict of interest when collecting fees, regulating services, and issuing financial tickets for health code violations. 

Misleading and Deceptive Practice(s)

            When did the mission of VDH become estranged with it's purpose of protecting public health?

As VDH INC expands its monopoly in the onsite soil evaluation and design services, let us not forget the U.S Supreme Court has held a clear and consistent message to all participants involved in commmerce that,

"where the State acts not in a regulatory capacity but as a commercial participant in a given market, federal  competitive restraints apply.  City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 374-75 (1991)."

VDH INC has conspired with local franchises to eliminate private sector competition via fee manipulation, where as VDH INC is an active market participant and has no desire or mandate to recover below-cost pricing losses subsidized by taxpayers. 

"Simple permission to play in a market"does not "foreseeably entail permission to roughhouse in that market unlawfully." Kay Elec. Cooperative v. Newkirk, 647 F. 3d 1039, 1043 (CA10 2011)". 

Should the VDH INC want to continue it's endeavors in exploring an entrepreneurial spirit, it should do so with conformance to applicable state and federal law; else they are just another bully on the economic playground also known as "commerce"...

Could you please explain why the state health department is collecting local fees for services provided by private sector professionals? In other words, despite being in violation of state code; VDH is working with local counties to charge what appears to be "illegal" taxes on private sector work.

The VDH is advised to separate the fee for review of a supported application (i.e. those applications for permitting accompanied by a site evaluation with plans and specifications certified by a PE or OSE) from the fee to provide professional services. Indeed such a result was implied by the Health Welfare & Institutions Committee in it's request for report from the Commissioner in January of 2015.

A review is an administerial process, leading to issuance or denial of a construction permit under authority of the Commissioner of Health. The public fully expects to pay a fixed fee for such a service, which applies uniformly to all applicants for a class or capacity of service.

Professional services include those which require a license and are performed under auspices of a licensing board. The terms of contract are generally a results driven proposal agreed to between a client and the professional. Responsibilty, risk and liability accrue to such services and are managed by the provider, subject to recovery through legal action by the client. The standards of practice of our profession are currently housed under 12VAC5-615.

VDH has had difficulty relinquishing the model of a commodity pricing system- where one fee serves all applicants. However since site conditions and circumstances of the landowners are unique the services are not fairly priced under a commodity model. While most accept the need to provide services for which the public has an interest- e.g. repair of a malfunctioning system for means tested citizens. There is clearly no longer a legitimate basis for a public subsidy to real property development.

Ironically the study which established the price during 2010 under estimated the actual cost of services by a factor of five. Data obtained for FY 2015 suggests the actual budget for design services exceeds $14million; but served slightly over 6000 applicants. VDH during 2015 issued slightly over 12,000 construction permits. Most would agree that but for the subsidized fee market prices would be subject to market forces.

Clearly before any fee is enshrined in code a study be office of Management and Budget is called for, and report to the General Assembly which ultimately funds the shortfall between the fee, and actual cost. Control over revenue and allocation are rightfully under control of the Legislative branch, while collection and administration ofthese revenues are under the Executive.

For a regulatory agency to have a competitive interest in a design is surely rare. This is analogous to a building inspector offering design services, and approving his own work. Since these services are offered under engineering code (§ 54.1-402. Further exemptions from license requirements for architects, professional engineers, and land surveyors.) it stands to reason the VDH as an employer of licensed persons must find the means to separate the regulatory and design roles to avoid perception or allegation of COI (18VAC160-20-145. Conflicts of Interest).

The VDH would be well advised to limit the liabilty of it's licensed staff, not by claiming soveriegn immunity- which can not apply to licensed acts, but by separating design from regulatory roles, and establishing policies to protect the public through reliable third party review. This is the prefered model of governmental services, such a transition should begin with a reconsideration of these regulations.

"Voluntary upgrade" means [ a change to or replacement of an existing nonfailing onsite or alternative discharging sewage disposal system, without an increase in the permitted volume or strength of the sewage, in accordance with the regulations for repairing failing systems an improvement to an existing onsite sewage disposal system or alternative discharging system that (i) is not required for compliance with any law or regulation and (ii) results in no net increase in the permitted volume or strength of sewage dispersed by the system ]. 

"Minor modification of an existing sewage disposal system" means an alteration that is not a repair [ , voluntary upgrade, ] or routine maintenance, does not result in an increase in treatment level or volume of the system, and does not require evaluation of the soil conditions prior to issuance of a permit. Minor modifications include but are not limited to relocation of a system component or an additional plumbing connection to the system that does not increase the actual or estimated flow of the system.

While "voluntary upgrade" is defined under §32.1-164.1:3 please explain whether the intent of the alteration of the definition in this regulation will permit the addition of infiltration lines. Thus presumably the evaluation of standoff to water table, texture structure etc.

Whether a system is not "failing" should be established through objective evaluation. This procedure should not be the means to contaminate the shallow groundwater with untreated STE (septic tank effluent). To do otherwise under certification of compliance with regulation and under professional license would be fraudulent (a deceptive practice, suggesting that a system complies with §32.1-164.1:3 (not showing sewage on ground); but when it also does not comply with 12VAC5-610 or 613 Regulations).

To whom accrues the responsibility to certify compliance with current regulations?
Who is responsible for damage to property rights, and subject to recover under tort?