Since licensing of Onsite Soil Evaluators has been directed to DPOR, these regulations are no longer required.  However, there are certain parts of these regulations that should be incorporated into either the VDH regulations 12VAC5-610 and/or into the DPOR regulations governing the OSE licensing program as guidelines for submission of a permit package by "Licensed" OSE's ... these guidelines are currently carried as a Guidance, Memoranda and Policy (GMP) 126.B.  Portions of this need to be codified and needs to apply to ALL License holders.

I object to the Rescission of these Regulations under an Emergency Action, and understand that an indication of opposition will require the Agency to consider the means to amend or transfer these statutes which document the expectations of our work and the procedures by which our client’s interests are considered. We realize that the change from “Authorized” to “Licensed” in 2009 might have created some administrative confusion, however the work an AOSE performs in the interpretation of a client’s objectives, in conjunction with site restrictions and the Regulation have held steady. There are technical, procedural and ethical standards which are lost by the repeal of this section of the Administrative Code of Virginia.

Some of these expectations are captured and refer back to 12VAC5-615 in GMP126B- Standards for Applications with Supporting Documentation from the Private Sector; however there are many issues under the regulation and the policy which deserve clarification and support to standardize the practice of site evaluation and design. Furthermore standards for the handling of documents and the expectation that a professional’s work be reviewed and approved by a qualified code official is an essential component of a citizen’s right to improve his real property..

I recommend that the VDH work with the DPOR Waste Water Board, and consult the Professional Soil Scientist's and Engineering Boards to capture those standards essential to the practice of onsite sewage system evaluation and design. Only with full disclosure may the citizen may be assured that his interests are being considered with  allegiance to our duty to the client, other professionals, the regulation, and the environment.

Please do not repeal the AOSE/OSE program without first making it part of the VDH Regulations or DPOR Regulation.

Now that licensing of Onsite Soil Evaluators has been moved to DPOR, these regulations are no longer required.  However, there are certain parts of these regulations that should be incorporated into either the VDH regulations 12VAC5-610 and/or into the DPOR regulations governing the OSE licensing program as guidelines for VDH submissions of all OSE's, private and public employees.

I am licensed under the OSE regulations and object to the loss of the expectations captured under sections of 12VAC5 615. OSE’s have relied upon these regulations to establish standards of practice used to determine whether a site meets the conditions set forth in the Code of Virginia under the Sewage Handling or Private Well Regulations, and how work presented on behalf of a client is considered by the Department of Health under procedures necessary to secure timely responses to applications. The 615 Regulations have components which ought to be captured by VDH or the DPOR WWWOOSSOP Boards and incorporated in the technical, ethical, and procedural considerations which define and regulate our profession instead of being stricken from the record. Therefore, I oppose repealing the Authorized Onsite Soil Evaluator Regulations.

I oppose the repeal of these regulations. I would agree to shifting responsibility over to DPOR once the VDH standards of practice get transferred to DPOR regulations. DPOR, Licensed Professional Soil Scientists, Authorized Onsite Soil Evaluators and Onsite Soil Evaluator Licensees, Professional Engineers and VDH need to capture the good in the VDH regulations and submit the good to DPOR before standards are removed from the Code of Virginia. Fast track does not work if the good half of the load gets left behind.

I am a licensed OSE and oppose the repealing of the Autherizied Onsite Soil Evaluator Regulations

I object to the 'fast tracking" of the repeal of the AOSE Regulations. Parts of GMP 126-B need to be written into the Code that unify standards of practice for both private and public OSE's before any rescission of the current regulations move forward.

I oppose the fast track process of the repeal of the AOSE regulations.  Although the administration of the AOSE program is now covered by DPOR adoption of 18VAC160-20, other equally important parts are not.  In particular, 12VAC5-615-340,350,360,370,380,390,400 are not being replaced with any other regulations.  Instead, these are being replaced solely by VDH policies.  This puts all private sector OSE's at a disadvantage since VDH policies are not open to public discussion before issuance; there is no notice provided to the private sector when new policies are issued and, most importantly, these policies are not enforced in an equitable manner.  Local Health Districts are allowed to treat the policies as law when they approve of them and totally ignore them when they do not. This leaves the private sector OSE at an extreme disadvantage since the Office of Environmental Health Services in Richmond refuses to intervene in any disputes with the local Health Districts.

I believe this fast tracking partially stems from VDH's increasingly adversarial approach to working with the private sector OSE's. 12VAC 5-615 is still necessary until all of it components have been replaced in State Code and can be applied equally to both OSE's in the private sector as well as the OSE's in VDH.

I oppose the repeal of the regulations and feel that DPOR needs to adopt these regulations for the time being.  Any ammendments or changes can then be made to solidfy and unify a minimum standard of work.  There is a great lack of consistancy regarding what different localities like to see in the private work submitted.  I feel that all in all the regulations are fairly well written and unified standard of work can be achieved by reading and adhearing to the current regs. 

I do not support the fast track regulations to repeal significant provisions of the  aose/ose program.  The core elements ensuring the proper evaluation of onsite sewage system design/evaluation should be incorporated into any relevant regulation.

I oppose the repeal of these regulations until a suitable replacement is recorded.  I think they are still needed.

I object to the proposed repeal of the Authorized Onsite Soil Evaluators Regulations [12 VAC 5 - 615] because this would result in the loss of professional expectations and standards of practice used to determine whether a site meets the conditions set forth in the Code of Virginia under the Sewage Handling or Private Well Regulations. The Authorized Onsite Soil Evaluators Regulations also include requirements for how private sector work is to be presented to the Department of Health as well as Department of Health procedures necessary to secure timely responses to applications. The Authorized Onsite Soil Evaluators Regulations should either be updated to reflect the current DPOR licensing program or the important components of the Regulation should be captured by VDH or the DPOR WWWOOSSOP Boards and incorporated in the technical, ethical, and procedural considerations which define and regulate the profession; the Authorized Onsite Soil Evaluators Regulations should not be stricken from the record. I oppose repealing the Authorized Onsite Soil Evaluator Regulations because such an action would result in the loss of important professional definitions, standards of practice, and Department of Health procedures.

I would like to express my opposition at repealing the Authorized Onsite Soil Evaluator (AOSE) Regulations through the Fast Track process.  While I agree that there is much within the AOSE Regulations that is outdated, especially with the Onsite Soil Evaluators moving from VDH certification over to DPOR as licensed professionals, the roles and responsibilites of OSEs need to addressed and the AOSE Regulations should not be repealed until a mechanism is in place in which these roles and responsibilities are clearly defined by Regulation and enforced by DPOR.  Currently OSEs work in both the public (VDH) sector as well as the private sector.  The roles and responsibilities of OSEs should be enforced equally across the board no matter whether the OSE is employed by VDH or works in the private sector.  Without a set of regulatory standards in place, it will be much more difficult for DPOR to enforce the same standards equally among both the private and public sector. 

I absolutely oppose the fast tracking of the Removal of AOSE Regulations. No minimum standards should be removed without first having like standards/guidelines/regulations available and enforceable by our governing body, DPOR. All licensed professionals should be held to the same standards and removing those standards does nothing for the industry and can negatively impact the environment. Something is fishy when a state beaucracy wants to remove existing regulations.  

Absolutely no. This action will result in a procedural vacuum which will allow for wide-ranging jursidictional policies that

will create delays, misunderstandings and periodic "new policies". My suggestion is to transfer the oversight authority but retain

certain procedural practices through a review of the regulation by an interdisiplinary committee.

As a licensed and college educated thrid party with 14 yrs in the onsite field I feel this action is a conflict of interest that will directly affect the quality of service available to the public.  It is in my opinion that parties involved in this movement for regulation change are not only violating trade law but preventing the public from access to qualified parties or companies competent to complete real improvements to property in a manner that conforms to accepted practices of engineering. 

I am requesting this propose regulation be firmly evaluated by all interested stakeholders including the interests of onsite wastewater engineers (PE) and AOSE's.

Regards,

Kenneth Carbaugh

I definitely oppose this action by VDH. The AOSE regulations establish our industry standards of practice. These regulations are the only thing that provide a semblance of standardization between the private sector and VDH public sector employees. With the repeal of these regulations VDH will be able to enforce an unequal standard between private and public. This action is in my opinion obvious proof of the VDH conflict of interest in protection of their monopoly.

I am licensed under the OSE regulations and object to the loss of the expectations captured under sections of 12VAC5 615. The AOSE Regulations are the only place where the licensed professional’s duties and responsibilities are codified in law and should not be lost without the capture of fundamental standards in place since 2002.

OSE’s have relied upon these regulations to establish standards of practice used to determine whether a site meets the conditions set forth in the Code of Virginia under the Sewage Handling or Private Well Regulations, and how work presented on behalf of a client is considered by the Department of Health under procedures necessary to secure timely responses to applications.

I am concerned that with the lack of a regulatory basis (615) standard of practice will be significantly compromised or non-existent.   

The 615 Regulations have components which ought to be captured by VDH or the DPOR WWWOOSSOP Boards and incorporated in the technical, ethical, and procedural considerations which define and regulate our profession instead of being stricken from the record.

The Agency needs to reconsider the means to amend or abandon these statutes which document the expectations of our work and the procedures by which the public’s interests are considered. These are captured and referenced back to 12VAC5-615 in GMP126B- Standards for Applications with Supporting Documentation from the Private Sector; however there are many issues under the regulation and the policy which deserve clarification and support, particularly clarifications of the appropriateness of submissions to VDH by non-OSE’s, relationship to Chapter 613, and submissions under § 32.1-163.6 of the Code of Virginia, to standardize the practice of site evaluation and design.

No tot the repeal of the AOSE Regulations. VDH's GMP's are to open to interpertation by the local VDH staff.

I am licensed under the OSE regulations and object to the loss of the expectations captured under sections of 12VAC5 615. OSE’s have relied upon these regulations to establish standards of practice used to determine whether a site meets the conditions set forth in the Code of Virginia under the Sewage Handling or Private Well Regulations, and how work presented on behalf of a client is considered by the Department of Health under procedures necessary to secure timely responses to applications. The 615 Regulations have components which ought to be captured by VDH or the DPOR WWWOOSSOP Boards and incorporated in the technical, ethical, and procedural considerations which define and regulate our profession instead of being stricken from the record. Therefore, I oppose repealing the Authorized Onsite Soil Evaluator Regulations.

I oppose the repeal of these regulations. I understand that the responsibility for licensing OSE's has moved over to DPOR. However these regulations contin the standards of practice that DPOR used to establish its testing for the OSE Licenses.  None of that information, which is not directly licensing, is being retained anywhere.  Virginia must have a basis for Standards of Practice.  It can be by a state department such as VDH, or DPOR, or by a independent group such as VAPS or VOWRA.  In any case the Standards of practice should be vetted before those groups/organizations who are part of the Onsite Wastewater practice.  Until that happens those standards contained in this regulation should stand.  The conflict with licensing can be removed,but it is not utilized and should not be a problem until the standards are documented sufficiently elsewhere.

Oppose Repeal of the AOSE Regulations

I am a licensed Soil Scientist and Onsite Soil Evaluator having practiced in the onsite field in Va.since 1987.  As a professional in the field I have relied upon these regulations to establish the standards of practice used to determine whether a site meets the conditions set forth in the Code of Virginia under the Sewage Handling and Disposal Regulations. These regulations have direct influence on how work presented on behalf of a client is considered by the Department of Health and the procedures necessary to secure timely responses to applications. These Regulations need to be used by the DPOR WWWOOSSOP Boards for the technical, ethical, and procedural considerations which define and regulate the onsite industry in Va. and therefore should not be repealed until such time that the standards of practice are captured by DPOR in an inforcable way.

Recommend that 12VAC5-615 not be repealed by the fast track process.  Onsite sewage system design submission requirements and other important requirements would no longer be required by regulation.  These standards are important for consistency and predictability of oversight across the state. 

Emergency AOSE Regulations expired before these regulations were final and AOSEs were asked to sign an statement that even though the regulations were not adopted and the Emergency Regs were expired that they would keep,practicing in accordance with the regs.  If we all agree to keep practicing within the limits of GMP 126 B, are we covered?  IDK?  Is 126 B valid if the regs are repaealed?IDK?

The Virginia Association of Onsite Soil Evaluators (VAAOSE) objects to the proposed Fast-Track Stage -
Repeal of Authorized Onsite Soil Evaluator Regulations (12 VAC 5-615).

Part of the overall objection stems from the rationale for selecting the fast track process. 12 VAC 5-615 was the first regulation of its kind to ever exist, and historically implementation was marked by controversy the moment the 1994 General Assembly required the Board of Health to establish a program for qualifying authorized onsite soil evaluators.

Was it just an oversimplification for the agency to declare 12 VAC 5-615 unnecessary and currently unenforced?

The General Assembly enacted legislation in 2007 creating the Onsite Soil Evaluator licenses. The body of legislation determined the need for the profession to be regulated, the degree of regulation, and the organizational structure to manage the regulatory program. Effective July 1, 2009, administration of the program transferred to the Department of Professional and Occupational Regulation (DPOR), and the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals (WWWOOSSP).

Certainly, the Virginia Department of Health (VDH) does not determine whether a specific activity is the practice of engineering, and DPOR licenses designers under Va. Code Section 54.1 (54.1-400 thru 54.1-415). Therefore, what constitutes adequate justification for repeal of 12 VAC 5-615 given the alternative was to leave the regulations in place with little or no effect on the Board's administration of the program?

Given the many assurances based upon DPOR’s licensing programs and policies for replacing significant portions of 12 VAC 5-615, what level of effort was made to assess the potential impact of the proposed action on DPOR regulants? For example, were all the definitions under current section 12 VAC 5-615-120 adequately referenced elsewhere and consistent with health, safety, environmental, and economic welfare?

VAAOSE requests greater detail and specificity as to the corresponding Code or policy intended to replace all sections of 12 VAC 5-615.

VAAOSE would support the agency obtaining a resolution on the matter from the respective DPOR Boards, with WWWOOSSP, in particular. If a goal of repealing the regulation is to prevent confusion, then establish a memorandum of understanding between DPOR and VDH on roles and responsibilities prior to rescinding 12 VAC 5-615.

A number of other associated issues with the proposed regulatory action include housekeeping clarifications on certain requirements like the "standards of practice and conduct" (12 VAC 5-615-20), implementation of processing time limits (12 VAC 5-615-80), and continued assurance that an AOSE certification is required (12 VAC 5-615-100).

Another potentially pertinent matter of interest is the final disposition of a misleading VDH interpretation that tends to promote two license standards as presented in Guidance Memoranda and Policies (GMPs), which are purported to represent implementation of other regulations (e.g., 12 VAC 5-610, 12 VAC5-613, 12 VAC5-640, and 12 VAC5-630).

One particularly controversial GMP was the original policy interpretation of 12 VAC 5-615. This policy is now titled GMP #126.B, Standards for Applications with Supporting Documentation from the Private Sector. Since the agency concludes that repeal of 12 VAC 5-615 will not result in substantial changes to the Board of Health's program, is the public to conclude this action will not fundamentally improve the license discrimination that was established after DPOR adopted regulations for onsite soil evaluators (18 VAC 160-20)? Under the current licensing program administered by DPOR, the code of ethics is for all practicing onsite soil evaluators (OSE).

VAAOSE considers it equally worthy of further consideration that key subsections of 12 VAC 5-615 were necessary to comply with several statutory provisions of the Code of Virginia. Implementation for the Acts of the Assembly was to incorporate into regulation provisions from 1994 legislation as well as 1999. The objective was to alleviate historical backlogs in sewage system approval through changes in statutory requirements. In this manner, both Acts of the General Assembly were inextricably linked. Whether or not VDH can effectively administer its responsibilities through other applicable provisions of the Code of Virginia remains to be determined. It is generally expected that a proposed Town Hall regulatory change alert the public of all substantive matters or consequences.

The General Assembly approved [S 415] April 11, 1994, an act to "amend the Code of Virginia by adding sections numbered 32.1-163.4 and 32.1-164.1:01, relating to certain application fees and onsite sewage systems." Of particular interest to authorized onsite soil evaluators, at that time, were the procedures for application backlogs under § 32.1-163.4.

Under § 32.1-163.4. A., "In any case where the local or district health department experiences a septic system or other onsite sewage system permit backlog of fifteen working days from the application filing date, the Commissioner shall contract with authorized onsite soil evaluators for the field evaluation of the backlogged application sites[...]."

Measuring the backlog from the application filling date was meant to provide an important trigger mechanism at local or district health departments for increasing AOSE/PE participation throughout the State.

In addition, § 32.1-163.4. C., "The Board's regulations shall include a definition of backlog providing a set number or a percent of the received applications." Therefore, under subsection C., the Board of Health was legislatively mandated to include the definition of a backlog in its regulations. The definition would determine both the extent of a backlog and whether or not contracting authorized onsite soil evaluators was required.

On June 27, 1994, VDH issued GMP #54 that established an interim definition of a backlog until regulations were adopted. Changes in the Code of Virginia in 1999, allowed private soil evaluators to have a legal right in approving or denying sites for septic systems. The definition of the term "backlog" was finally adopted under regulation, 12 VAC 5-615-120. Definitions:

"Backlog" is deemed to exist when the processing time for more than 10% of a local or district health department’s complete bare applications for construction permits exceeds a predetermined number of working days (i.e., a 15-day backlog exists when the processing time for more than 10% of permit applications exceeds 15 working days). When calculating backlogs, only applications for construction permits shall be counted.

On July 16, 2004, GMP #126, Implementation Manual for Authorized Onsite Soil Evaluator Regulations, was published. This GMP was intended to "provide guidance to VDH staff, AOSE/PEs, and others for

administering, interpreting, and enforcing the AOSE Regulations." Of particular note with respect to the proposed repeal of 12 VAC 5-615, was a highlighted paragraph which indicated the following:

 Effective immediately, VDH Guidance Memoranda and Policies (GMP) #54 (Defining Backlogs), #99, #100, and #103 are hereby rescinded; all agreements executed between VDH and individual AOSEs upon the expiration  of the Emergency AOSE Regulations are null and void upon the effective date of the AOSE Regulations. 

In closing, the agency has an opportunity to withdraw this proposed action until these inconsistencies can be satisfactorily repealed without controversy.

Earnestly,

James B. Slusser, AOSE

President, VAAOSE

I oppose Fast-Track Repeal of the Authorized Onsite Soil Evaluator Regulations.  I look forward to the agency's response to the comments received during this stage.  Thank you for your consideration.

Upon review of the proposed repeal of 12 VAC 5-615, Authorized Onsite Soil Evaluator Regulations, please note my objection to the fast track action.

While the purpose and intent of repealing 12 VAC 5-615 was long overdue, so much of the agency's explanation for repeal relies upon standards or code referenced to another agency. Running this action as a fast track process deprived the public sufficient opportunity to address the realm of potential consequences. One has a right to expect greater transparency, accountability, standardization, and consistency in the repeal of a regulation.  This action deserves further review and understanding of its potential impact on the regulated community. A few brief observations for further consideration:

•  The agency is without equal the Commonwealth's largest employer of onsite soil evaluators.
•  DPOR recognized the VDH AOSE certification when setting the minimum examination and experience requirements for initial licensure.

  Under section 12 VAC 5-615-90, the agency rationale for repeal stated, "Va. Code Section 54.1-400 provides additional guidance regarding the practice of engineer. [...]" In addition, please include a reference to § 54.1-406. License required:
  .
  A. Unless exempted by § 54.1-401, 54.1-402, or 54.1-402.1, a person shall hold a valid license prior to engaging in the practice of architecture or engineering which includes design, consultation, evaluation or analysis and involves proposed or existing improvements to real property.

  Unless exempted by § 54.1-401, 54.1-402, or 54.1-402.1, a person shall hold a valid license prior to engaging in the practice of land surveying.

  B. Unless exempted by § 54.1-402, any person, partnership, corporation or other entity offering to practice architecture, engineering, or land surveying without being registered or licensed in accordance with the provisions of this chapter, shall be subject to the provisions of § 54.1-111 of this title.

  Under section 12 VAC 5-615-100, the agency explains, "The Board does not have authority to qualify individuals as AOSEs. DPOR regulates the practice. The Board has other policies and regulations that implement this regulation. [...]" Please include a corresponding reference to § 54.1-2302. License required:

  No person shall operate a waterworks or wastewater works, perform the duties of an onsite soil evaluator, or install or operate an alternative onsite sewage system, without a valid license.

I would like to take this opportunity to stress my personal opposition to the repeal of 12VAC 5-615 et. seq.  Rescinding these regulations would attenuate mandates legislated by the General Assembly in 1994 (32.1-163.4 A and C). 

Additionally, the repeal may SHIFT potential burden onto agency resources due to reducing private sector input in the onsite program.  Any actions to reduce private sector input will ultimately result in more tax dollars being spent to subsidize residential growth in the Commonwealth and attract unnecessary liability to the Agency by allowing State employees to provide proprietary services for improvements to real properties.