Custom Designed Alternative Septic and Department of Health Oversight

Mark D. Obenshain, Virginia State Senator for the 26th District has introduced a bill Senate Bill #1277 in the current session of the Virginia General Assembly: “Professional engineering of onsite treatment works; Department of Health oversight.”

This bill contains several provisions restricting the Department of Health's oversight of the requirements for and the review of onsite sewage systems custom designed by professional engineers. The Virginia Onsite Wastewater Recycling Association, VOWRA, is opposed to the passage of this bill. Some VOWRA members feel it is an attempt to circumvent the regulations on horizontal setbacks and performance requirements for alternative onsite sewage systems, AOSSs. These physical separations are the last defense of my well and my property from a poorly designed and maintained alternative onsite sewage system on a neighbor’s property. By reducing the authority of the Department of Health to maintain these separations this bill threatens drinking wells with contamination from other properties and is entirely counter to the provisions of the Virginia Watershed Implementation Plan and good stewardship.

Septic is a non-consumptive use of water, the water is returned to the earth. It is important that the septic system or AOSS is designed and operated in a way that protects the environment. Whatever goes down the toilet or the drain goes into the earth. Research performed over a decade ago in Dutchess County, NY and North Carolina demonstrated that minimum lot size, vertical and horizontal separations were the controlling factors to maintaining water quality. Adequate dilution, soil filtration and time are necessary to ensure sustainable water quality. Maintaining the horizontal and vertical separation of all septic and AOSS systems is the last protection of the drinking water supply from septic contamination and allows for weather and use irregularities in operation of septic systems and AOSSs.

In recent sessions the General Assembly has passed several bills amending septic requirements. HB 2551/SB 1486 provided that: AOSS designs submitted by professional engineers to the Virginia Department of Health are required to ensure that the treatment works will meet or exceed the standard discharge, effluent, and surface and ground water quality standards for standard commercial systems tested and demonstrated by the industry and permitted in Virginia under Health Department regulations.

My libertarian streak would love to believe that homeowners would care for their septic systems appropriately to avoid the system backing up in the future, contamination of the groundwater (which may be the source of the local drinking water), and future septic system repair bills of tens of thousands of dollars to remediate and replace a system. Unfortunately, many homeowners are unaware of how septic systems works and what is necessary to maintain them. In addition, people do not seem to be able take appropriate responsibility for their systems without some sort of enforcement or the regulations and the current regulations have no penalties or consequences and so far the public seems unaware of them. Thus, the last defense of neighboring properties and drinking water supplies are the horizontal and vertical setbacks.

Contamination of Groundwater

Though it is was widely believed in the past that groundwater was protected from contamination, this is not true. Obvious contamination sources, such as landfills, lagoons, and other waste facilities are easily identified. Sources not so easily recognized as potential contamination sources include agricultural, industrial, and mining operations, and naturally occurring processes such as salt water intrusion. While it is quite common to dispose of waste by burying it, in doing so, we have at times opened the route of contamination for ground water. Once buried, some wastes are forgotten and become more difficult to locate as time passes. Waste disposed of in surface dumps also poses a threat, especially when rainwater or snowmelt seeps down through it into the groundwater. Because groundwater in many geologic formations moves slowly, a contamination problem can remain undiscovered for years or decades before the contamination plume reaches a well (or other outlet) where it is discovered. Fractured rock formations which tend to be groundwater rich in places like Virginia, are particularly susceptible to groundwater contamination. Public water supplies are routinely tested; however, private wells are only tested at the discretion of the owner. (Though the department of health recommends regular testing of private drinking wells, it is not required. In addition, when home owners test their drinking water they routinely only test for coliform- bacterial contamination.)

Remediating groundwater contamination is difficult and expensive. Often, treatment of contaminated groundwater is also expensive. The best approach is to prevent the contamination of groundwater. There is not a comprehensive estimate of ground water contamination costs for Virginia. An example of the magnitude of costs associated with groundwater contamination can be obtained from a review of the underground storage tank program. Between 1990 and 1998 the Virginia Department of Environmental Quality reimbursed tank owners $67 million for remediation of ground water contamination. These reimbursement costs do not include the costs borne by the tank owners or costs associated with remediation activities where responsible parties could not be identified. Gasoline floats on groundwater and is only somewhat soluble, it is introduced as a point source of contamination and thus, it is relatively easy to capture and clean up. The costs associated with other types and sources of contamination would be enormous.

Sources of groundwater contamination

• Leaks and spills of petroleum products. Contamination of groundwater by petroleum products from leaking fuel tanks (both heating oil and gas and diesel fuel tanks), pipelines, and spills and releases. After World War II it became common practice to bury fuel tanks in the ground. No one thought about what would happen over time when these tanks rusted and began to leak creating a slow and steady source of contamination. In the late 1980’s the states began to regulate underground storage tanks, USTs. Virginia began a program to register, regulate and cleanup USTs and their contamination in 1989 and has spent over $67 million in the effort to cleanup contamination from USTs. As the backlog of historic contamination is cleaned up and the more protective regulations reduce the future contamination, USTs are becoming a smaller threat in the future. Motor oil can also pose a threat to groundwater. It is estimated that over 4 million gallons of used oil are disposed of improperly by do it yourself oil changer in Virginia each year. Improper disposal especially pouring it out on the ground or sending it with household waste to the sanitary landfill can impact groundwater.
• Military installations have historically used solvents as degreasing agents for machinery and equipment, disposed of waste on site, have had underground pipelines associated with fueling operations, and fuels storage systems. These have often been large quantity operations and can result in significant impact to groundwater especially where the aquifer is unconfined.
• A landfill is a site where trash and garbage are disposed of. Historically, mixed waste was simply buried and this resulted in contaminated leachate impacting groundwater. Leachate is the liquid formed when rainwater and snowmelt filter or percolate through buried refuse. The liquid formed by dissolving waste is the leachate. If the leachate is not captured and treated it can contaminate groundwater. Many of the old hazardous waste disposal sites have turned into CERCLA (Superfund) sites. Currently there are 26 federal NPL sites in Virginia including the 2008 Sterling CERCLA site. It is reported that a quarter of CERCLA sites are old landfills.
• Under the federal Resource Conservation and Recovery Act (RCRA) definitions and regulations were created for sanitary landfills, a site where sold waste is disposed on land without creating public health or safety hazards. Landfills now required a clay or synthetic liner, and the compacted waste must be caped at the end of each day with soil, monitoring wells to check for groundwater contamination are required for active and closed sanitary landfills. These days, landfills usually contain household waste. Each person in the US creates and average of 4.5 pound of trash daily. It is important that hazardous materials are not disposed of with the regular household trash, and are instead properly recycled.
• Onsite Sewage Disposal Systems
• Cesspools, which directly disposed of untreated sewage wastewater into pits, are no longer permitted in Virginia. These days only septic and alternative onsite sewage systems (AOSS) are permitted in Virginia. Proper location, density, and maintenance of septic systems is necessary to ensure that the AOSS and soil can absorb wastewater from the system and remove the contaminants and disease causing bacteria before it can impact the groundwater. Home owners must also be careful not to dispose of insecticides, herbicides, solvents, paints, drugs or other chemicals in their sinks and toilets. Septic systems and AOSS are not designed to remove these substances and they will pass directly to the groundwater. Currently, there are Emergency AOSS regulations awaiting the Governor’s signature.
• Agricultural activities can cause degradation of the groundwater. Excessive use of fertilizers and pesticides or improper application or disposal of these substances can contaminate groundwater. Shallow groundwater can also be impacted by runoff of pesticides and improper well construction. In addition, improper management, storage and disposal of animal waste from manure piles, animal waste lagoons and feedlots (which are not common in Virginia) can contaminate groundwater with biological contaminates and nitrate. Suburban pesticide use and surface runoff can also have significant impacts on groundwater. Excessive use of herbicides and pesticides on ornamental gardens can contribute to runoff and ground infiltration of pesticides. Injecting termite control chemicals directly into the soil surrounding all houses needs to be rethought and pest control planned and appropriately handled.
• In southwestern Virginia coal mining can impact groundwater. Acidic ground water caused by the coal mining can be a serious problem. Below ground mining can intersect a groundwater aquifer and introduce contaminants into the aquifer. Tailing ponds used to dispose of mining waste can be a source of groundwater contamination. Mining is often associated with acidic impacts to groundwater.
• Finally, coastal areas can be affected by saltwater intrusion caused by heavy pumping of the groundwater, a decrease in recharge or an increase in sea level. When the artesian layer of groundwater is pumped beyond its recharge rate, saltwater will rush flow in to fill the void. This is a growing problem in the Tidewater region of Virginia. Groundwater levels in the Tidewater region of Virginia’s coastal plain are continuing to decline. Impacts from groundwater withdrawals are propagating along the fall line into the coastal plain and have the potential to interfere with wells in these areas. Given current groundwater declines, the entire coastal plain aquifer system must be managed to maintain a sustainable future supply of ground water.

Commonwealth of Virginia Proposed Septic System Regulations

On September 28, 2009 the Virginia Department of Health published their proposed Alternative Onsite Septic System, AOSS, regulations for public comment. The window for public comments closes on October 28, 2009. The comment period is closed.


The proposed regulations implement the legislative mandate of 2007 and require professionals operators certified by DPOR to operate and maintain all alternative onsite septic systems, AOSS. 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). Prior to July 1, 2009, Virginia law did not require a license to practice as an onsite sewage system operator. DPOR’s regulations for licensing operators does not have any sort of exemption or modified certification for homeowners, but should. It is irrational that home owners can operate direct discharge septic units, but the legislation requires that all single family AOSS units be operated and maintained by a licensed operator.

In their proposed regulations the Virginia Department of Health did not have the option of allowing homeowners to operate and maintain their own systems without modifying the DPOR licensing requirements. The legislation passed in 2007 required that licensed operators perform these tasks. The Department of Health, fully aware of the problem, did not attempt to develop an alternative certification for homeowners, instead they choose to propose that single family home AOSS (under 1,000 gallons per day) be required to be operated by a licensed operator, maintained by a licensed operator and sampled. These are the same requirements that are used for AOSS units processing up to 39,999 gallons per day. These requirements combined are far in excess of what is required to ensure that these systems function as designed. It is to be noted that most single family homes operate at far fewer than 1,000 gallons a day.

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. This bias is compounded by the record keeping, and evidence of maintenance contract requirements making it extremely difficult to change operators. I am not give any tools to evaluate operators, yet sa a homeowner I am tied 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. A simple diagram of the system and a list of components and their function would suffice for single family systems. The question is why the VDH is proposing such punishing regulations for single family AOSS that go beyond the need to properly maintain these systems, but serves as a profitability act for the licensed operators.

Alternative onsite septic systems are designed to be state of the art, meeting EPA's treatment standard one. This exceeds the standards for sewage treatment plants and replenishes existing groundwater systems. These alternative onsite systems can be more sustainable to the surrounding ecosystem than sewers and centralized waste treatment and are certainly less expensive for the homeowners in sparsely populated areas. However, the systems need to work properly and these newer alternative systems with multiple tanks, compressors and various parts require consistent maintenance to continue working properly. Rather than attempt to educate the homeowner and offer cost effective solutions to ensuring that AOSS are maintained properly, the VDH has proposed three layers of oversight within the regulations that are likely to result in avoidance of compliance and potentially abandonment of the technology. The VDH is treating low volume single family home AOSS the same way as clustered systems. Is this the best answer for Virginia?

Virginia’s Proposed Alternative Onsite Septic System Regulations 12VAC5-613

Today, September 28, 2009 the Virginia Department of Health published their proposed Alternative Onsite Septic System, AOSS, regulations for public comment. There is only a 30 day window for public comments. The opportunity to comment has closed.

The purpose of the regulations is to ensure that these more effective treatment systems are maintained in a manner to allow them to function properly to be protective of the environment and public health. It is widely accepted, but not documented that improperly managed septic systems contribute to major water quality problems. The US EPA states in the “Volunteer National Guidelines for Management of Onsite and Clustered Treatment Systems” that improper design, construction, installation, operation and/or maintenance are the source of these onsite waste treatment failures. EPA hopes to better determine the extent of the relationship as documentation becomes available. In 2003 EPA reported that 168,000 viral and 34,000 bacterial illnesses occur nationally each year from drinking water contaminated by waterborne pathogens from fecal contamination. Proper maintenance of septic systems (both traditional and alternative) is essential for protection of public health and local water resources. The EPA estimates that 29-30% of Virginia households have septic systems and that 8% of theses systems are AOSS.

The research into the contamination from septic systems was performed at the RS Kerr Environmental Research Laboratory in Ada, Oklahoma. The classic study by Marylynn V. Yates points out that septic systems contribute 800 billion gallons of waste water per year to the subsurface. The study found that the most important factor influencing groundwater contamination by septic systems is the density of systems in an area and the distance to the contamination point. It is as simple as that. The fewer systems per square mile the less chance of contamination. Distance from a septic system, the so called horizontal set backs are the final protection from harm especially for those of us who obtain our drinking water from private water supplies. The proposed regulations maintain and expand the conservative set backs for traditions systems.

The AOSS were approved by the state based on demonstrations of their functioning and effectiveness. In the proposed regulations the Commonwealth is going to require outside operators to inspect and maintain these systems in perpetuity at a cost to the home owner of $400-$600 per year (the basic contract where I live is $480, but the provider will grant a 25% discount if I get a group of at least 10 families together.). This level of oversight and maintenance should ensure that these AOSS function as intended and ensure that anomalies and alarm situations are responded to in a timely manner.

Ideally, homeowners should care for their septic systems appropriately to avoid the system back up in the future, contamination of the groundwater (which may be the source of the local drinking water), and future septic system repair bills of tens of thousands of dollars to remediate and replace a system. Many homeowners are unaware of how septic systems work and what is necessary to maintain them. In addition, many people do not seem to be able take appropriate responsibility for their systems. One method to deal with this problem is to eliminate all but the most basic systems in the most geologically favorable locations (reduce percolation rate tolerances and design the systems as conservatively as possible). The other method is to regulate, control and track. Establish system performance and monitoring and maintenance requirements, establish a tracking system for compliance monitoring. Virginia has taken the tact to require outside operators and an ongoing operations and maintenance contract. There is no opportunity for an interested homeowner to obtain the skills and knowledge to operate and maintain their own systems. I do not know if this is the right answer, but it is the one the VDH picked.

All AOSS systems were demonstrated to perform satisfactorily to be approved for use in the Commonwealth. Monitoring and operating these AOSS systems with professional operators is designed to ensure a single family home (low volume) unit is functioning. In addition, the VDH proposes that single family AOSS be required to have the outside operator sample and send out for analysis system effluent every five years. As an old chemical engineer I know how misleading a single sample once every five years can be. Septic systems are impacted by volume, load, temperature and humidity. The AOSSs are really the most basic and tiny of waste treatment plants. These systems were tested over a period of time and conditions to demonstrate an acceptable operating average performance.

A single sample every five years will provide little if any useful information that is not provided by an initial demonstration of functioning and on going maintenance and inspection. If a system is tested and does not meet the design averages, does it fail? What range around the design parameters is officially acceptable to the VDH? If a system fails, protocol would require a retesting (at the consumer’s expense). If the system “failed” to meet the design parameters adjustments to the use or operation of the system would be then be made and the system retested again at the home owners expense. How many rounds of testing would be required to determine that the “average” parameter was met? Or would the Department of Health simply ignore the results and allow the systems to continue to operate until the next five year sample date? In real life design parameters will sometimes be exceeded and sometimes not met. THE VDH has not quantitative standards for these operating ranges, but wants quantitative sampling performed every five years. At what levels does the VDH take enforcement action, or require further investigation? Without these answers how can a sampling program be instituted that is anything more than data gathering? If the VDH has no intention of using the data for enforcement it is inappropriate to require this level of expenditure from home owners. What is the limit of the amount of money the VDH will require to be spent by a home owner? I do not believe the environment or public health of the Commonwealth will benefit from this sampling. This requirement creates a permanent substantial and open ended additional cost to the homeowner above the annual cost of having an operator maintain the system.

I investigated the costs of testing an AOSS with an ATU by having the third tank sampled. To test for Total Coliform, ecoli, and Nitrate-Nitrite cost $321.42 (which included a 10% discount for having a maintenance contract). Sampling BOD, TSS, Oil and Grease and Nitrate-Nitrite, as Nitrogen samples from the third tank cost $353.58 (also including a 10% discount). For $675 all these parameters could by tested by the outside operator. This level of cost, even at a five year interval is excessive on top of the operations and maintenance contract. This cost could financially stress a home owner. The possibility to have to retest, take corrective action or develop an average effluent profile to demonstrate compliance with a design parameter is an open ended financial liability that might have no benefit to the environment or public health, but could have dire consequences on the financial viability of the home owner. Routine inspections and maintenance should serve to identify systems that are not functioning properly. If there appears to be an on going problem then sampling and testing could be performed if the operator in consultation with the VDH felt it could help resolve an operating problem.

The success of the regulations in protecting the environment and public health will depend on the compliance of the AOSS owners. For the individual home owner the regulations will have to be clear, easily understood by a layman reading them and fair. I believe home owners will be able to accept that AOSS systems need to be annually inspected and maintained by operators at a monthly cost that is around $40. It will be perceived as an additional property tax, but is constant and will become routine like any other homeowner expense.