HD10 - Report to the General Assembly in Response to House Bill 558 : A Plan for the Orderly Reduction and Elimination of Evaluation and Design Services by the Virginia Department of Health for Onsite Sewage Systems and Private Wells
The strategic vision of the Virginia Department of Health (VDH) is to shift evaluation and design services for onsite sewage systems (OSS) and private wells to the private sector in an orderly manner so limited VDH resources can be focused on improving public health and groundwater supplies. VDH should not provide evaluation and design services when and where a sufficient number of licensed private sector professionals are available to perform evaluation and design services. VDH should focus its limited resources on population health and strengthen its efforts in health monitoring, data collection and dissemination, community health assessments, creating a complete inventory of wells and sewage systems throughout the Commonwealth, understanding viral and nutrient impacts to drinking water and recreational water, providing quality assurance inspections of private sector work, educating the public on operation and maintenance needs and drinking water quality, developing necessary policies to improve health, and providing reasonable enforcement and programmatic oversight. VDH cannot currently perform these higher priority needs to the extent necessary because the law requires VDH to perform soil evaluations and designs.
The strategic vision encompasses VDH having a more traditional regulatory role. VDH is unique among state and federal agencies in that it provides some of the same services offered in the private sector. VDH’s dual role of service provider and regulator creates numerous difficulties with enforcement, plan review, and work product expectations. The strategic vision includes VDH providing adequate programmatic oversight with a proper “check and balance” system.
The Roadmap for Transition
VDH recommends enacting a number of statutory, regulatory, and policy changes to implement the plan. Draft legislation is found in appendices 4 to 24. The plan cannot be implemented without change to the Code of Virginia (the Code). VDH’s plan includes a very specific scope and timetable for transitioning site and soil evaluations, designs for conventional onsite sewage systems, and siting of well locations. The plan could be implemented in stages and the scope and timetable could vary from what VDH recommends. For example, several options for transitioning services, which VDH did not recommend or incorporate into the plan, are discussed in the background section of this report. These ideas could be considered as alternative approaches to alter the scope and time for implementing a business model change.
VDH recommends an orderly transition by requiring certain applications to include supporting private sector work. For example, VDH proposes that soil evaluations and designs for voluntary upgrades, certification letters, and subdivisions stop in the near term because they are voluntary in nature. These voluntary services are not associated with a building permit or the repair of a failing system which require the issuance of a construction permit by VDH. Next, VDH recommends that owners petition the agency to receive soil evaluation and design services from VDH. VDH recommends using a sliding income scale based on the federal poverty guidelines (FPG) to identify cases which VDH should serve as a provider of last resort. Unless there is a specifically identified hardship that prevents a property owner from using the private sector, VDH would only be available as a provider of last resort that would be implemented gradually over time. VDH recommends creation of a fund to ensure that vulnerable populations receive timely and needed service to repair failing onsite sewage systems. Finally, VDH recommends changing its fee structure so that services currently provided for free would have a reasonable charge for processing going forward. The change in fees would ensure VDH remains adequately funded to realize its strategic vision.
Stakeholder ideas were considered.
To develop the plan, VDH reviewed recommendations from three previous studies, all of which included significant stakeholder feedback. VDH also shared programmatic data and information, options, and other possibilities for the plan with the Sewage Handling and Disposal Advisory Committee, which represents 16 different stakeholder groups (see 12VAC5-610-50). VDH created four small teams consisting of three to five stakeholders each to assist in drafting recommendations for consideration. Each small team focused on one of the four key areas of interest identified by VDH in HB 558: (1) how best to protect consumers, (2) how best to transition services, (3) how best to ensure strong internal procedures are maintained for programmatic oversight, and (4) how important a repair fund would be to make the transition successful.
VDH staff presented draft reports, data, and other information at five Sewage Handling and Disposal Advisory Committee meetings between March 2016 and September 2016. Staff also shared draft reports on the VDH website and discussed with Environmental Health (EH) Managers. On October 4, 2016, staff presented a first draft of the final plan at the Virginia Onsite Wastewater Recycling Association conference in Roanoke, Virginia. The conference was attended by more than 150 private sector services providers and manufacturers. Background data used to develop the plan can be viewed at http://22.214.171.124/EnvironmentalHealth/Onsite/hb558/documents.htm.
How best to enhance customer service?
The General Assembly may wish to amend §§ 32.1-163.5 and 32.1-163.6 of the Code of Virginia to require private sector onsite soil evaluators and professional engineers to verify system design options and disclose estimated costs to the property owner.
The General Assembly may wish to provide additional authority to the Department of Professional and Occupational Regulation in Title 54.1 of the Code of Virginia to enhance dispute resolution between a property owner and a private sector service provider over services rendered.
The General Assembly may wish to amend § 32.1-176.5:2.B of the Code of Virginia to give well drillers the authority to perform sanitary surveys for locating wells and submitting work to the Virginia Department of Health.
How best to initiate a transition?
The General Assembly may wish to amend § 32.1-163 of the Code of Virginia to revise the definition of maintenance, such that paperwork is reduced for certain types of repairs or voluntary upgrades.
The General Assembly may wish to amend § 32.1-164 of the Code of Virginia to require operation and maintenance reporting for conventional onsite sewage systems, which will improve program oversight.
The General Assembly may wish to revise § 32.1-164 of the Code of Virginia to require the pump out or inspection of all conventional onsite sewage systems once every five years.
The General Assembly may wish to amend §§ 32.1-163.5, 32.1-164, and 32.1-164.1.3 of the Code of Virginia to shift onsite sewage system evaluations and design services which are not associated with a building permit or the repair of a failing system (i.e., subdivision reviews, certification letters, and voluntary upgrades) to the private sector by July 1, 2017.
The General Assembly may wish to amend § 32.1-163.5 of the Code of Virginia to shift new construction evaluations and designs which are not for a principle place of residence to the private sector by July 1, 2017.
The General Assembly may wish to amend § 32.1-163.5 of the Code of Virginia to require VDH to establish guidelines to help property owners with a specific hardship and be a provider of last resort.
The General Assembly may wish to amend §§ 32.1-163.5, 32.1-165, and 32.1-176.5:2 of the Code of Virginia to require applicants to petition VDH to provide evaluation and design services for new construction, repairs, and safe, adequate, and proper evaluations.
The General Assembly may wish to amend §§ 32.1-163.5 and 32.1-176.5:2 of the Code of Virginia and the Appropriation Act to ensure the orderly transition of evaluations and designs for new construction, repair, and safe, adequate, and proper evaluations over a five-year period based on a sliding scale of income eligibility.
How best to ensure the agency’s strategic vision is adequately funded?
The General Assembly may wish to amend § 32.1-164 of the Code of Virginia and the Appropriation Act to include additional fees which would allow the Virginia Department of Health to retain its current level of funding during and after the transition of direct services to private sector service providers. This recommendation would allow the Virginia Department of Health to maintain a staffing level to provide necessary oversight, improve operation and maintenance of alternative onsite sewage systems and alternative discharging sewage systems, improve management of onsite sewage system and private well data, and incorporate onsite sewage systems and private wells into community health planning.
The General Assembly may wish to create a fund to cover the cost of designing and installing repairs for failing onsite sewage systems and private wells for income eligible property owners.
How best to protect public health and improve internal procedures?
The Virginia Department of Health should revise agency regulations and policies to i) require VDH staff to inspect all onsite sewage systems and wells designed by the private sector, ii) clarify that a malfunction assessment must be completed as part of all repair and voluntary upgrade evaluations and designs, and iii) require an inspection of conventional onsite sewage systems within 180 days after the operation permit is approved.
The Virginia Department of Health should expand efforts to educate the public concerning the design, operation, and maintenance of onsite sewage systems and private water supplies.
The Virginia Department of Health should expand efforts to incorporate onsite sewage system and private well data into community health assessments.
The Virginia Department of Health should enhance its quality assurance checks and inspection procedures for the review of private sector evaluations, designs, and installations, and update its quality assurance manual to reflect a change in the agency’s business model.
The Virginia Department of Health should consider whether to separate work unit functions regarding permitting and enforcement. Staff reviewing evaluations and designs for permitting purposes may need a separate and independent function from staff performing enforcement actions.
The Virginia Department of Health should improve the collection and management of onsite sewage system and private well data, including i) creating a web-based reporting system for conventional onsite sewage system operation and maintenance, ii) accepting applications and payments online, iii) making onsite sewage system and private well records available online, iv) creating a complete electronic record of all permitted onsite sewage systems and private wells, and v) creating procedures for tracking Notices of Alleged Violations and corrective actions.
The Virginia Department of Health should revise agency policies to allow the transfer of valid construction permits to new property owners.