The proposed regulations contain no provisions requiring objective performance validation for nitrogen reducing technologies. Nor are there any requirements for independent third-party technology performance testing at the “end of pipe.” If the VDH believes that mandating nitrogen-reduction for small AOSS is an important positive step to help protect the Chesapeake Bay, then why do the proposed regulations fail to demand solid evidence (from technology evaluation testing at actual residences) that specific technologies will perform as claimed?

Moreover, though the proposed regulations would require nitrogen-reducing technologies for AOSS in the Chesapeake Bay watershed, they fail to establish verifiable end-of-pipe effluent nitrogen limits for small AOSS. Instead, they would allow compliance to be “demonstrated” through poorly defined “best management practices” approved by the VDH, or through engineer “calculations” that depend on numerous unprovable assumptions about the effectiveness of below-ground nitrogen attenuating processes. Such weak requirements, relying on unverifiable assumptions about nitrogen removal in the soil, do not constitute true “compliance demonstration”—they seem to be little more than handwaving and compliance theater.

VDH obviously recognizes the important of systematic third-party residential field-testing to validate performance. Indeed, subsections -613-70 and  -613-30(L) mandate such testing and evaluation for General Approval purposes--but only for effluent BOD and TSS. There is no similar requirement for nitrogen performance validation. Since the importance of objectively performance validation is plainly recognized for BOD and TSS, the lack of similar provisions for evaluating nitrogen performance is  inexplicable.

The failure to insist on meaningful performance validation is not consistent with the goal of promoting the most cost-effective solutions for nitrogen reduction. Failure to define objective end-of-pipe standards, and to require performance verification, will give an advantage to manufacturers and system designers who are willing to misrepresent the actual capabilities of their technologies, cloaking themselves behind poorly defined and inadequate water quality standards. That is a bad thing for the Chesapeake Bay environment. And it will amount to a waste of AOSS owners' money—nitrogen-reducing systems will be mandated, but the mandate will be undermined because in effect the regulations will promote the use of less effective technologies.

To address these deficiencies, the proposed regulations should be amended to require that performance of nitrogen-reducing systems be objectively verified. They should require that nitrogen performance be convincingly demonstrated in one of two ways: either through systematic third-party effluent nitrogen testing and evaluation of a limited number of sites at the manufacturer’s expense (according to a program similar to the General Approval testing program outlined in the proposed regulations at -613-70 and -613-30(L) for BOD and TSS), or else through individual second-party site monitoring of all small AOSS (similar to the effluent BOD monitoring program described at -613-100 (A) through (E)).

The regulations should commit the VDH to systematically collecting and statistically analyzing the cumulative nitrogen testing results, and publishing those results to openly identify the most cost-effective nitrogen reducing technologies. The Maryland Department of the Environment’s Bay Restoration Fund Best Available Technology Program would serve as a good model for an open, systematic, objective testing and evaluation program. (See the Maryland program information at http://www.mde.state.md.us/programs/Water/BayRestorationFund/OnsiteDisposalSystems/Pages/Water/cbwrf/osds/brf_bat.aspx.)

Poorly defined soil-based Best Management Practices and presumptive calculations should not be accepted in lieu of verified end-of-pipe performance. IF adequate requirements are in place for end-of-pipe performance verification, THEN it would be appropriate to offer incentives (such as permitting fee reductions) to promote use of BMPs (e.g., shallow placed dispersal systems) that offer further nitrogen attenuation in the subsurface.