Alternative Septic Regulation and the Virginia Single Family Homeowner

Here are some additional thoughts on the proposed Alternative Onsite Sewage System (AOSS) Regulations as they pertain to single family homeowners. These regulations were published September 28, 2009 by the Virginia Department of Health and the comment period is open until October 28, 2009.

The proposed regulations implement the 2007 legislation and require professional operators certified by DPOR to operate and maintain all alternative onsite septic systems, AOSS, including those of single family homes. The Virginia code requires the owner of an AOSS, to have that system operated by a licensed operator, as defined in § 32.1-163, and visited by the operator as specified in the operation permit. Effective July 1, 2009, Virginia law requires that soil evaluators, installers, and operators of onsite sewage systems must be licensed by the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals at the Department of Professional and Occupational Regulation (DPOR). For the interim regulations nothing can be done to change that. However, the proposed regulations go on and require the same operation, maintenance, sampling, record keeping behavior in single family home owners as required of clustered systems of up to 39.999 gallons per day. This serves to add to the profitability of the licensed operators and the expenses for the homeowner without benefiting public health or the environment.

The proposed testing requirement is not authorized or required by statute and is useless. Laboratory testing of a septic system at a single point in time can be misleading. Operating performance is impacted by volume, load, temperature and humidity, and a single sample is not representative of overall performance. These approved AOSS have already been tested to demonstrate an acceptable operating average performance over a period of time and range of conditions. The authorizing statute requires regulation of the operation and maintenance of AOSS but does not authorize or require testing or reporting unrelated to this purpose. An AOSS that is operated and maintained by a professional operator meets the requirements in the law and protects the environment. Regular inspections and maintenance should serve to identify systems that are not functioning properly.

The requirement for operation and maintenance by a licensed operator favors operator over homeowners, and does not require certification by the manufacturer of all approved systems for implementing operation and maintenance programs. Effectively, licensed operators unqualified to maintain a particular system can contract with homeowners to operate and maintain the system. This bias is compounded by the record keeping, and evidence of maintenance contract requirements making it extremely difficult to change operators. The DPOR and VDH do not give homeowners any tools to evaluate operators, yet tie the homeowner to the operator by the requirement to “Maintain a relationship with an operator.” Before a contract expires the homeowner is required to have another one in place.

Finally, a home owner is required to keep a copy of the Operation and Maintenance Manual (O&M Manual) on the property where the AOSS is located, make the manual available to the Department upon request and make a reasonable effort to transfer the O&M Manual to any future owners. The requirements for the manual are listed in the proposed regulations, and appear to be another profit center for the licensed operators to provide these manuals to homeowners. Since the homeowner is not allowed to operate or maintain their systems themselves a manual is a useless pile of paper conveying little information to untrained reader. A simple diagram of the system, physical location of the components and a list of components, their manufacturer and their function would suffice for single family systems. This short information brochure would more likely to be read and understood by the homeowner and could serve as an educational tool and be useful in shopping for a licensed operator.

The success of the regulations in protecting the environment and public health will depend on the compliance of the AOSS owners. For the individual homeowner the regulations should be clear, fair and easily understood by a layman reading them. Compliance with the regulations will suffer if they are, or are perceived, to be excessively costly or burdensome and without benefit to public health and the environmental. Though I believe there should be a method for a homeowner to become licensed to operate their own systems, these approved AOSS need to be annually inspected and properly maintained by professional or trained operators. A monthly cost for a maintenance contract of around $40 will be perceived as an additional cost like a property tax, but is manageable. The other portions of these regulations make the cost to the homeowner too high without providing additional protection to public health and the environment.