007-08BOARD OF SUPERVISORS
A RESOLUTION REQUESTING HEALTH DEPARTMENT
CESSATION OF CONDITIONAL CONSTRUCTION PERMIT
APPROVALS FOR NEW CONSTRUCION, EXCEPT IN
REFERENCE TO SOIL DISTANCE PARAMETERS
WHEREAS, the Commonwealth of Virginia State Board of Health regulations provide for the
issuance of Conditional Construction Permits, as defined in Section 2.13 J of the sewage Handling
and Disposal regulations, dated July 1, 2000; and,
WHEREAS, such regulations enable various conditions to be placed on an approved health
system, one of which includes the limitation on the number of persons occupying the dwelling
or using the facility served by the proposed septic tank system; and,
WHEREAS, the Board of Supervisors passed by resolution on May 25, 2005, requesting that
the Virginia Department of Health cease to issue Conditional Construction Permits for new
construction within Frederick County, which Virginia Department of Health has continued to
honor; and,
WHEREAS, the Virginia Department Health on July 22, 2008, issued a policy clarification that
would enable health systems which previously received written health approvals based on
separation distances of 12 to 18 inch to impervious strata for shallow placed systems, to receive
construction permits through the conditional process; and,
WHEREAS, the County supports the use of the conditional approval in an effort to honor
previously approved heath approvals for the impervious strata separation distances; and,
NOW, THEREFORE, BE IT ORDAINED that the Frederick County Board of
Supervisors does hereby request that the Virginia Department of Health continue to cease
to issue Conditional Construction Permits for new construction in Frederick County
unless it is solely for the purpose of grandfathering a previously written approval
pertaining to separation distances to impervious strata for shallow placed systems.
Upon motion made by Gary W. Dove and seconded by Philip A. Lemieux , the
above resolution was approved by the following votes:
Passed this 13th day of August, 2008 by the following recorded vote:
Richard C. Shickle, Chairman Aye Gary A. Lofton Aye
Gary W. Dove Aye Bill M. Ewing Aye _
Gene E. Fisher Aye Charles S. DeHaven, Jr. Aye
Philip A. Lemieux Aye
A COPY ATTEST
John R. RVoul r:
Frederick nty Administrator
Resolution 4007 -08
COUNT' of FREDERICK
Department of Planning and Development
MEMORANDUM 540/ 665 -5651
FAX: 540/665-6395
TO: Frederick County Board of Supervisors
FROM: Eric R. Lawrence, AICP, Planning Director"��
SUBJECT: Resolution - Health Department Sewage Disposal Regulations
Pertaining to Recent Soil Depth Revision
DATE: August 6, 2008
On April 8, 2008, the Virginia Department of Health (VDH) revised its policies regarding
the separation distance to impervious strata for shallow placed system. As I understand
it, and to put it in laymen's terms, the minimum soil depth to enable drainfields for
private on -site health systems was increased from 12 to 18 inches. This policy revision
caused significant concern for many Frederick County area property owners, builders,
engineers, and others who had previously secured written health system approvals based
on the 12 inch parameter.
In an effort to address those properties that secured health system approvals based on the
12 inch parameter but had yet to construct (install) the approved system, on July 22, 2008
the VDH issued a clarification directive that would "grandfather" those previously issued
written approvals. These "grandfathered" situations would be treated by the VDH as
conditional approvals.
That is where Frederick County becomes involved — with the VDH conditional
approvals. In 2005, the County passed a resolution requesting that the VDH halt the
issuance of the Conditional Construction Permit Approvals as such were being utilized to
enable the construction of new residential dwellings with undersized health systems.
Staff believes we should continue this practice - do not enable new residential
construction on undersized health systems.
But, if the Board is supportive of the VDH's July 22, 2008 directive to grandfather
previously approved health systems based on the 12 inch soil depth, a revised resolution
would be necessary. Attached is a draft resolution that would enable the VDH to issue
conditional approvals solely for previously approved health systems with soil depths of
12 inches or greater; we would continue to request that conditional approvals not be
utilized for other purposes.
Please contact staff should you have questions.
Attachment: VDH memorandum dated July 22, 2008
_ Draft resolution
ERL/bad
107 North Kent Street, Suite 202 • Winchester, Virginia 22601 -5000
COMMONWEALTH of VIRGINIA
Karen Remley, MD, MBA, FAAP
State Health Commissioner
Department of Health
P O BOX 2448
RICHMOND, VA 23218
TTY 7 -1 -1 OR
1-800 - 828-1120
July 22, 2008
To: Environmental Health Managers
From: Donald J. Alexander, Director
Division of Un.site Sewage and Water Services
Subject: CTMP #112.A, #114.A, and #118.A clarifications
Revisions to GNP's #112, #114 and #118 were issued on April 9, 2008. The intent of the
revisions was to improve statewide consistency in implementing the policies by more
clearly stating the original intent and scope of the policies. The revisions focused on
those areas where the implementation of the original GMPs had gone beyond what the
system testing had demonstrated.
An unintended consequence of the revised policies was an impact on the cost of
development in certain areas of the Commonwealth. In particular, several builders,
uevelopers, ACSEs, and Professional Engineers in the Winchester, Virginia area
requested a meeting to present Department of Health representatives with the hardships
they were encountering. This meeting was held on June 5, 2008 and this memo is largely
a result of that meeting.
The principal issue of concern with the revised policies was the separation distance to
inm.pen strata for shallow placed systems. The revised policies reflect the definition
of impervious strata found in the Sewage Handling and Disposal Regulations (i.e., "a soil
feature that has a measured or estimated percolation rate in. excess of 120 minutes per
inch "). Impervious strata may include but are not limited to bedrock pans, restrictions
or shrink -swell soil. In some areas of the Commonwealth, site evaluators considered all
bedrock as being impervious, which is not the intent of the Department. Bedrock may be
pervious or impervious and site evaluators should look carefully at the morphological .
features of the soil horizons overlying the bedrock and assess wheth er or not the bedrock
meets the regulatory definition of an impervious strata.
The intent of the policy was to reflect research conducted by Virginia Tech and
subsequently incorporated in various experimental and provisional approvals granted by
DH DEPARTMENT [
hweUag You and Your &n hvrmwcu
www.vdh.virginia.gov
GMP #11.2.A, *114A, and #118.A clarifications
July 22, 2008
Page 2
the Department. Specifically, when dealing with highly treated effluent, 12 inches of
naturally occurring unsaturated soil is necessary to complete treatment sufficient to
protect public Health and 18 inches of material (not necessarily unsaturated) to an
iniperviois .horizon will provide adequate soil volume for effluent dispersal. The 12 inch
unsaturated zone provides treatment and the 18 inches of permeable material (saturated or
unsaturated, soil or rock) provides a receiving environment that is adequate for sustained
dispersal of effluent flows under 1,000 GPD.
The Department, recognizing that permits had been issued that deviated from the intent of the
original policies, included in each of the revised GM-Ps a provision to allow the practice
installing dispersal systems as close as 12 inches to an impervious strata to continue.
However, the revisions require additional evaluation by a licensed professional engineer to
determine that the practice is not likely to result in a hydraulic failure of the system.
Specif cally the policy contained the following provision
The separation distance to an impervious strata may be reduced from 18 inches to a
distance not less than 12 inches below the trench bottom when a professional
engineer certifies in writing that they have evaluated the hydraulic capacity of the site
to disperse wastewater and that in their professional opinion, water mounding will not
encroach on the separation distance required in Table 1 above. (note: Table I
appealS In GMPs 4.7 1 A, J14A, and 118.,:1, not in this menio)
At the June 5 th meeting, concern was raised regarding this provision. A specific request
was made that previously granted approvals be " grandfathered" in four specific
situations. These included the following tees of approvals:
I . Existing subdivision lots, meaning lots approved based on a site being found
suitable for use of one of the systems allowed by the referenced GMPs, and
2. Sites with a certification letter, and
3. Lots Ntiith existing permits, and
4. Subdivision lots "in process ", meaning subdivision that have been reviewed and
signed off by VDH but have not yet been. recorded because they are awaiting
review and approvals from other agencies and/or county departments that are part
of the subdivision approval process.
After consideration of the request, the Department believes the request is reasonable and.
consistent with the requirements of the Sewage Handling and Disposal Regulations,
under which the policies were implemented. Consequently, iii. those instances where a
prior written approval has been granted, the "Grandfather Clause" of the Regulations (1.2
VAC 5- 610 -70) shall apply. The Sewage Handling and Disposal Regulations require that
permits issued under the provisions of the Grandfather Clause be recorded. However, for
the purposes of complying with G_M?s 112.A, 114.A and I I8.A, the site shall be
considered to substantially comply with requirements of Part IV of the Sewage Handling
- GMP #112. A, #114.A, and T7 1 118.A clarifications
July 22, 2008
Page 3
and Disposal Regulations and no requirement shall be inade to record the permit as a
conditional permit when at least one of the following conditions are met:
1. The stand -off distance to an impervious strata is 18 inches or more below the
infiltrative surface where effluent is applied, or
2. An AOSE has certified that bedrock encountered within 18" is not an. impervious
strata, or
3. An engineer has certified water mounding will not encroach on the separation
distance required in Table 1 of the GMP.
In those instances where an application is received to renew a construction permit, or
convert a prior approval to a construction permit, and one or more of the three conditions
above are not met, the permit shall be issued as a conditional permit in accordance with
12 VAC 5- 610 -70 C.
A secondary issue that was raised at the June 5, 2008 meeting involved collecting data to
m
establish whether or not the 18 inch. separation distance to an impervious stratu could
be reduced to 12 inches. This condition was not evaluated in the initial studies. The
Department expressed a willingness to work with Virginia Tech to determine if this
change could be justified; however, funding for such a study was not within VDH's
budget and given the current budget crisis, it did not appear likely that VDH would be
able to fund such a study. Several individuals in attendance indicated a willingness to
identify private funding sources and work with Virginia Tech to complete the study. The
artment reiterates it's commitment to working with Virginia Tech to over -see such a
study and expresses it's willingness to reconsider the stand -off distance to impervious
strata contained in GMPs #11'_.x1, #114.A, or 118.A based on the data collected in such a
study.
Appointed members shall serve at the discretion of the commissioner with terms being two years in duration. The Sewage
Handling and Disposal Advisory Committee shall make recommendations to the commissioner regarding sewage handling and
disposal policies, procedures and programs of the department. The committee shall meet at least annually. The committee
shall establish its rules of order.
12VAC5- 610 -60. The State Health Department Sewage Handling and Disposal Appeals Review Board.
There is established within the Department of Health under § 32.1 -166.1 the Sewage Handling and Disposal Appeals Review
Board, hereinafter referred to as the Appeals Review Board.
12 VAC 5- 610 -70. Grandfather clause.
A. Any owner of a grandfathered lot may submit an application for a construction permit according to the procedure in 12 VAC
5- 610 -250. The local health department may perform a site and soil evaluation in accordance with Part III (12 VAC 5 -610 -450 et
seq.) of this chapter and a permit shall be issued for a system which complies to the greatest extent possible with this chapter
provided that the site and soil conditions would not preclude the successful operation of the system. Whenever the site and soil
conditions on a grandfathered lot do not substantially comply with the requirements in Part IV (12 VAC 5- 610 -591 et seq.) of this
chapter for a septic tank effluent system, secondary treatment will be required in the system design. In no case may the
separation distance between the subsurface absorption system and a drinking water supply be less than the separation distance
established in the regulations in effect at the time the grandfathered lot was approved (subdivision approval) or when the first
permit was issued for the grandfathered lot.
B. Certification letters may not be issued in lieu of permits under the grandfather clause.
C. All permits issued under the grandfather clause which do not substantially comply with the provisions of this chapter shall
be considered conditional permits in accordance with 12 VAC 5 -610 -250 J. A statement approved by the division shall be
recorded and indexed in the grantor index of the land records of the circuit court having jurisdiction over the site of the sewage
treatment and disposal system. The statement shall indicate that the permit is issued under the grandfather clause and that the
site and soil conditions do not substantially comply with the current regulations and may contain such other information as the
division deems appropriate to serve notice to future owners of the unique nature of grandfathered lots.
D. Within 18 months of July 1, 2000, any owner of a lot for which a certification letter or subdivision approval was issued after
November 1, 1982, may submit an application for a construction permit according to the procedures in 12 VAC 5- 610 -250. Such
application shall be subject to the permitting requirements of the regulations under which the certification letter or subdivision
approval was issued.
12 VAC 5- 610 -75. Permits valid on the effective date of this chapter.
Sewage disposal system construction permits which are valid on July 1, 2000, shall be automatically renewed on a one -time
basis. Each permit thus renewed shall have an expiration date 18 months from the expiration date shown on the face of the
permit. Such permits may be converted to certification letters only if they substantially comply with the current provisions of this
chapter.
12 VAC 5- 610 -80. Sewerage systems and /or treatment works required.
A. The discharge of untreated sewage onto the land or into the waters of the Commonwealth is prohibited.
B. No owner, person, or occupant shall discharge treated or untreated sewage onto the land, into the soil or into the waters of
the Commonwealth without a valid permit from the commissioner or, as appropriate, a certificate issued by the Department of
Environmental Quality in accordance with Title 62.1 of the Code of Virginia.
C. All buildings, residences, and structures designed for human occupancy, employment or habitation and other places where
humans congregate shall be served by an approved sewerage system and /or treatment works. An approved sewerage system
or treatment works is a system for which a certificate to operate has been issued jointly by the department and the Department
of Environmental Quality or a system which has been issued a separate permit by the commissioner.
12 VAC 5- 610 -90. (Repealed.)
12 VAC 5- 610 -100. Right of entry.
The commissioner or his designee shall have the right to enter any property to assure compliance with this chapter in
accordance with the provisions of § 32.1 -25 of the Code of Virginia.
12 VAC 5- 610 -110. (Repealed.)
12 VAC 5- 610 -120. Definitions.
The following words and terms when used in this chapter shall have the following meanings, unless the context clearly
indicates otherwise:
Printing Date: July 19, 2000
2
"Agent" means a legally authorized representative of the owner.
"Alluvial soil" means a soil developing from recently deposited alluvium and exhibiting essentially no horizon development or
modification of the recently deposited materials.
"Alluvium" means mineral materials, either weathered or unweathered, that are transported by flowing water and deposited or
redeposited in a flood -plain or marine terrace.
"Aquifer" means water - bearing portion of a geologic formation that transmits water.
"Certification letter" means a letter issued by the commissioner, in lieu of a construction permit, which identifies a specific site
and recognizes the appropriateness of the site for an onsite wastewater disposal system.
"Colluvial soil" means a soil developing from recently deposited colluvium and exhibiting essentially no horizon development or
modification of the recently deposited materials.
"Colluvium" means an accumulation of soil material, or a mixture of stone fragments and soil material, deposited at the base of
slopes or in depressional areas, primarily by gravity.
"Commissioner" means the State Health Commissioner or his subordinate who has been delegated powers in accordance
with subdivision 2 of 12 VAC 5- 610 -40.
"Cr horizon" means weathered or soft bedrock and is used to indicate root restrictive layers of bedrock or saprolite.
"Dilution area" means the land immediately adjacent to and down gradient, in the direction of ground water flow, from a mass
sewage disposal system, which is provided for the purpose of diluting nitrogen, or other nutrients occurring in wastewater, with
ambient ground water, in order to assure compliance with nutrient standards contained in this chapter.
"District health department" means a consolidation of local health departments as authorized in § 32.1 -31 C of the Code of
Virginia.
"Division" means the Division of Onsite Sewage and Water Services, Office of Environmental Health Services, State Health
Department or its administrative successor.
"Existing construction" (with failing sewage disposal systems) means an existing structure where the sewage disposal system
serving the structure has failed or is currently in violation of state law or regulations and requires correction.
- "General approval" means approval granted to systems which are proven and tested in accordance with Article 2 (12 VAC 5-
610 -441 et seq.) of Part II of this chapter.
"Grandfathered lot" means:
1. Any lot upon which no permit has been issued and which is in a subdivision approved by the department prior to July 1,
2000, in accordance with a local subdivision ordinance. Individual lots may or may not have been evaluated; or
2. Any lot, parcel, or portion thereof with a previously issued permit or a specific written approval (not including a certification
letter) from the department.
"Gray color" means a chroma -2 or less on the Munsell Color Chart.
"Impervious strata" means soil or soil materials with an estimated or measured percolation rate in excess of 120 minutes per
inch.
"Local health department" means a branch of the State Health Department established in each city and county in accordance
with § 32.1 -30 of the Code of Virginia.
"Mass sewage disposal system" means a sewage disposal system or systems which will discharge effluent to a single
absorption area or multiple absorption areas with or without combined flows, such that the loading rate applied to any acre, as
determined by the department, exceeds 1,200 gallons per day.
"Mineral soil" means a soil consisting predominantly of, and having its properties determined predominantly by, mineral matter.
A mineral soil usually contains less than 20% organic matter, but it may contain an organic surface layer up to 12 inches thick.
"New construction" means construction of a building for which a building permit is required.
"Office" means the Office of Environmental Health Services, State Health Department.
"Owner' means the Commonwealth or any of its political subdivisions, including sanitary districts, sanitation district
commissions and authorities, any individual, any group of individuals acting individually or as a group, or any public or private
institution, corporation, company, partnership, firm or association which owns or proposes to own a sewerage system or
treatment works.
Printing Date: July 19, 2000