Administrative Code

Virginia Administrative Code
10/27/2021

Article 2. Systems with Experimental or Provisional Approval

12VAC5-610-441. Special permits for experimental methods, process and equipment.

Article 2
Systems with Experimental or Provisional Approval

A. New construction. Sewage treatment and disposal methods, processes, and equipment which (i) are not covered by criteria in Part V (12VAC5-610-660 et seq.) of this chapter and (ii) in principle and/or application are new or unconventional are subject to a special permitting procedure in lieu of that set forth in 12VAC5-610-250. All applications for such processes, methods, and equipment shall be made to the division through the district or local health department.

1. Submission of data on experimental methods, processes, and equipment. The policy of the division is to encourage the development of any new methods, processes, and equipment which appear to have application for the treatment and disposal of sewage; however, new developments shall have been thoroughly tested in a full scale or representative pilot system utilizing this process and equipment. Results of this testing must be submitted to the division. The testing required on new developments will generally follow the following guidelines:

a. All procedures used in validating the process shall be conducted under the supervision of a faculty member in an appropriate program of an accredited college or university, a licensed professional engineer experienced in the field of sanitary engineering, or by a testing firm acceptable to the division.

b. The tests shall be performed under maximum design conditions and over extended periods of time in the geographical area of the proposed installation.

c. The data shall be from a continuous operation of a full scale or pilot installation treating or conveying the type of sewage to be handled.

d. Flow measuring equipment shall be provided and total flow shall be recorded daily.

e. The minimum sampling and analysis program will be established by the division in accordance with the process under investigation.

f. All analyses will be made in accordance with Standard Methods for the Examination of Water and Wastewater, 1992 (American Public Health Association), or analytical methods approved by the division.

g. The sampling shall establish the impact of the experimental sewage treatment and disposal methods, processes, or equipment on ground water and public health.

h. The application shall identify and suggest operation and maintenance guidelines for the process or components of the process.

2. Detailed plans must be submitted showing how, in case of noncompliance, the method, equipment or process will be converted to or replaced with a proven system. In order to assure that funds are available to convert or replace the experimental method, equipment or process with a proven system, bonding or other assurances shall be provided. A proven system shall be a Type I, II, or III system, a point source discharge system or connection to an existing approved sewerage system or treatment works. The application for the experimental system shall be accompanied by one of the following: (i) a Virginia Pollution Discharge Elimination System (VPDES) permit, or (ii) a General Permit Registration Statement issued by the Department of Environmental Quality and a construction permit for an alternative discharging sewage treatment system issued by the commissioner, or (iii) certification from the owner of the existing sewage system or treatment works that connection is available, or (iv) a valid construction permit for a Type I, II, or III system.

3. Issuance of a construction permit. After review of the plans and testing data by the division and approval of a proven system (see subdivision 2 of this subsection), the commissioner shall issue a construction permit in accordance with the procedures in 12VAC5-610-250 if reasonably satisfied that the method, process, or equipment will provide satisfactory sewage disposal.

4. Issuance of an experimental operation permit. Upon completion of construction or modification, a permit to operate for a definite period of time will be issued for the operation of the experimentally approved methods, processes and equipment. The number of experimental systems of similar design characteristics to be installed for an evaluation period shall be determined by the division and where soil dependent systems are utilized, the number shall be limited to not more than four for each physiographic province (see Appendix K). There shall be no limit on the number of experimental systems allowed to be installed when an approved back-up system is constructed in accordance with subdivision 2 of this subsection and plumbing is provided to the back-up system. In this instance, a flow diversion valve shall be installed to divert wastewater flow between the two systems as necessary. The experimental permit to operate the experimental system shall require that the evaluation period be a minimum of 18 months and no longer than 36 months, under design conditions, and the holder of the experimental operation permit shall submit reports on operation during the evaluation period as required by the division.

5. Issuance of an operation permit. The commissioner shall issue an operation permit upon expiration of the experimental permit if, on the basis of testing during that period, the division finds that the experimental method, processes or equipment provides satisfactory sewage disposal. If these conditions are not met, then the commissioner shall issue an order which will require the owner to alter the sewage disposal system in a manner that will enable the conditions to be met.

B. Existing construction. Sewage treatment and disposal methods, processes and equipment (i) are not covered by the criteria in Part V (12VAC5-610-660 et seq.) of this chapter and (ii) in principle and/or application are new or unconventional may be utilized where a conventional sewage disposal system serving an occupied dwelling has failed and it is not possible to provide an alternate sewage disposal system having a discharge to state waters. The procedures for obtaining a permit for such systems shall generally follow those set forth in subsection A of this section with the following exceptions:

1. The detailed plans required need not show how in case of nonacceptance the sewage disposal system will be converted to or replaced with a proven process nor are bonds or assurances required;

2. More than four permits for soil dependent experimental systems of similar design characteristics may be issued per physiographic province; and

3. If the disposal system fails to work satisfactorily on a year-round basis, further correction to the system may be required.

C. Issuance of design and construction criteria. When sewage treatment and disposal methods, processes or equipment have demonstrated satisfactory performance and operational competence to the satisfaction of the commissioner, by completing the experimental process or by similar rigorous testing in other states or countries, provisional system approval shall be granted and design and construction criteria shall be developed in accordance with this article. If the wastewater to be treated is substantially different in flow or characteristics from one which was used during testing, the commissioner shall require the issuance of an experimental operating permit and further testing conducted until operational competence is demonstrated. The criteria shall include, at a minimum, the siting criteria, design and construction standards, performance, monitoring and service requirements of the methods, processes and equipment.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-442. Provisionally approved systems; overview.

A. Sewage treatment and disposal systems, methods, processes, technology and equipment that are not covered by criteria in Part V (12VAC5-610-660 et seq.) of this chapter and have not received general approval for use under the provisions of this chapter may be eligible for provisional approval. Depending upon the complexity of the system, method, process, technology or equipment, provisional approval may be granted requiring individual applications for either a Type II or Type III system, as described in 12VAC5-610-250. After the evaluation period described in 12VAC5-610-500, a provisionally approved system may be given general approval and be incorporated into this chapter.

B. The purpose of the provisional approval process is to use, evaluate, and develop criteria for the use of new and innovative technology. The evaluation process allows the department a realistic amount of time, under varied field conditions, to develop and refine siting, construction, operation and maintenance criteria applicable to conditions and uses occurring in Virginia. During this evaluation period, residents of the Commonwealth have the benefit of the systems and the department can review, evaluate, revise and refine all aspects of criteria related to the system.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-443. Applying for provisional approval.

A. Applications for provisional approval shall be made in writing to the division and shall request provisional approval for a specific system, technology, method or process. The application shall comply with 12VAC5-610-250 regarding the submission of detailed plans and specifications.

B. The application shall include the following:

1. A description of the system's operation including the accepted scientific and engineering principles upon which the system technology, method or process is based.

2. A description of the site criteria required for successful operation of the system.

3. Design criteria for sizing the system to meet all relevant site conditions and waste flow characteristics.

4. Construction procedures for successfully installing a system.

5. Operation criteria and maintenance requirements for the successful use of the system over the life expectancy of the system.

6. Proposed performance standards that the system is expected to meet to determine the success or failure of the system.

7. Documentation giving factual evidence of the principles upon which the system is based demonstrating the capacity for satisfactory performance and operational competency for treating and disposing of effluent. Such evidence must include sufficient basic and applied research to demonstrate that experimental status should be waived. Provisional approval of a product is principally intended to provide a method of full-scale system demonstration; however, limited applied research may be required when in the exclusive opinion of the department, the information obtained from applied research is necessary to the evaluation and decision-making process. Systems, technologies, methods, or processes which have not demonstrated sufficient basic and applied research to support the principles or theory of operation shall be considered experimental.

8. Documentation of at least 50 comparable systems of identical design and capacity having been installed in Virginia or elsewhere. Only systems installed under similar soil and site conditions (if applicable) to the site and soil conditions for which approval is sought in Virginia shall be considered. Additionally, the wastewater flows, strength and other characteristics shall be documented and be similar in both the demonstration systems and the proposed use in the provisional application.

9. Data indicating that the 50 systems identified in subdivision 8 of this subsection have provided both treatment and disposal no worse than a conventional septic tank-drainfield system over a period of time not less than three years.

10. Test results and certifications must be conducted by an accredited college or university, the National Sanitation Foundation, entities accredited by the American National Standards Institute, or other testing groups that may be acceptable to the division as being impartial and competent in testing or evaluating wastewater treatment and disposal methods.

C. An application submitted according to this section and containing the information required by subsections A and B of this section shall be considered a completed application.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-444. Evaluation process for provisional system applications.

A. Preliminary evaluation. Upon receiving an application, the division shall review it for completeness. The division shall request additional information from the applicant if the application does not contain all of the requested information. Once the application is complete, the division shall prepare a summary and a preliminary evaluation of the proposal.

B. Division evaluation and recommendation. The division shall evaluate all completed applications and make a recommendation to the commissioner concerning the application. The recommendation, if favorable, shall include proposed criteria for installing, operating and maintaining the system. The division shall consider the following information which shall be provided by the manufacturer or other interested party:

1. Whether the demonstrations and test results required by 12VAC5-610-443 B will provide sufficient scientific evidence to support the proposed theory of operation and that the application of the theory is appropriate for proposed uses without posing an undue risk to public health and ground water.

2. The impact of the system on ground water and public health.

3. The operation of the system in other states. The division may solicit evaluations and comments from health officials in other states or countries where the system, method, process, equipment or technology has been used.

4. A review of the appropriate manufacturer's or the distributor's records relating to system maintenance and user complaints. Failure to maintain accurate and up-to-date records of maintenance actions and customer complaints may delay or prevent completing a review.

5. A review of any sample results which may be collected from or around any of the systems.

6. The practicability of preventative maintenance and the frequency of the required maintenance.

7. Other information as deemed appropriate by the division which relates to evaluating the effect of the system, method or process on ground water or public health.

C. Decision by commissioner. In making a decision, the commissioner shall review the recommendations of the division and the comments and recommendations made by the advisory committee. The commissioner may elect to approve or deny the application, or approve the application with conditions or with requirements for additional testing. The commissioner's provisional approval shall set forth the criteria for filing an application (i.e., Type II or Type III system), installing, operating, maintaining and testing the provisionally approved system. The commissioner's approval shall indicate that the provisional approval may be modified as set forth in 12VAC5-610-447 C.

D. During the first year of provisional system approval, a maximum of 100 permits may be issued for a provisionally approved system. When 50 or more systems have been installed, operated, reviewed by the division and found to be demonstrating satisfactory performance and operational competency, the division may allow additional permits to be issued, up to 1,000 systems during the first five years. No single increment of additional permits may exceed 500 additional systems and a satisfactory review must be made by the division prior to any additional release of permits. Further, at least 12 months must elapse between permit releases to assure adequate time passes for potential problems to develop and be discovered by the division.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-445. Appeals.

A. Denial of provisional status. Pursuant to the Administrative Process Act (§ 9-6.14:1 et seq. of the Code of Virginia), any aggrieved applicant seeking provisional approval for a specific type of system may appeal the final case decision of the commissioner by requesting an adjudicatory hearing.

B. Denial of an applicant for use of a provisionally approved system. Aggrieved applicants who have been denied use of a system having provisional approval may request a hearing in accordance with 12VAC5-610-210.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-446. Permits for constructing and operating provisionally approved systems.

A. Construction permit application. Homeowners can apply for a construction permit to install a provisionally approved system in the same manner provided for in 12VAC5-610-250 for Type II or Type III systems depending upon the nature of the provisional approval granted by the commissioner. Appeals from the denial of a permit application for a provisionally approved system shall conform to the requirements of 12VAC5-610-210.

B. Operation permit status. Homeowners installing a provisionally approved system in accordance with the construction permit issued by the commissioner and provisional siting, design and construction criteria for that system shall be issued an operation permit. Such operation permit shall be valid until the system ceases to operate in a safe and sanitary manner, as determined by the department. The validity of any individual operation permit issued for a system having provisional approval shall not be dependent upon ultimate approval or denial of that specific type of provisionally approved system for general approval under this chapter.

C. Recordation. All permits for provisionally approved systems shall be recorded with the clerk of the circuit court in the jurisdiction where the system is permitted, in accordance with 12VAC5-610-250 J 6.

D. Repair area. A 100% repair area, meeting or exceeding the requirements of this chapter, or an approved discharge permit shall be identified prior to permitting a site for a provisional system. The repair area shall be reserved for the exclusive use of the repair system. A 100% repair area meeting the requirements of the provisional approval shall be considered adequate toward meeting this repair area provision.

E. Maintenance. Whenever deemed appropriate by the commissioner, the department shall require operation and maintenance procedures and schedules appropriate for the method proposed.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-447. Evaluation period for provisionally approved systems.

A. Evaluation criteria. Prior to receiving general approval and being incorporated into this chapter, systems with provisional approval shall be evaluated for not less than five years. The division should conduct an annual review of systems with provisional approval. The review, at a minimum, should be based on the following information submitted by the manufacturer; however, nothing shall prevent the department from verifying, augmenting or otherwise collecting additional information on the performance and operation of the system.

1. A field review of a sample of the systems installed. The sample shall include a representation of systems of newer and older installations and systems installed under different site and system limitations. System limitations will frequently be unique to each system and therefore the criteria used to select systems of different manufacturers will vary according to the nature and design of the system. The division shall determine the sample size to be evaluated and the criteria for sample selection.

2. Interviews with a sample of system owners to determine customer satisfaction and customer opinions. This sample may or may not be the same as the sample of systems reviewed under subdivision 1 of this subsection.

3. A review of the manufacturer's or the distributor's records relating to system maintenance and customer complaints. Failure to maintain accurate and up-to-date records of maintenance actions and customer complaints may delay or prevent completing a product review.

4. A review of any sample results which may be collected from or around any of the systems.

5. Other information as deemed appropriate by the division which relates to evaluating the effect of the system, method or process on ground water or public health.

B. Tracking of site locations. The manufacturer shall submit to the department records on the numbers, locations and operation of all provisionally approved systems on a quarterly basis not later than the 15th day of the month following the quarter.

C. Revisions to provisional approval. During the period of provisional approval, the department may revise any aspect of the site, soil and design requirements for that system based on experience gained during the use of the systems. The department shall work with the applicant to revise the approval by agreement, but shall not be prohibited from doing so without the consent of the applicant if warranted by health or environmental concerns. The revised provisional approval shall apply to any systems for which an application is filed after the revision is made.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

12VAC5-610-448. General approval of provisionally approved systems.

A. After the evaluation period specified in 12VAC5-610-447 is completed, site selection design and construction criteria shall be developed when the commissioner is satisfied that the sewage treatment and disposal system, method, process or equipment has demonstrated operational competency and satisfactory performance equal to or better than that of a gravity flow septic tank drainfield absorption system. Initially these criteria shall be implemented by policy and shall grant the status of general approval to the system or process and shall not limit the number of systems allowed. Subsequently, at the discretion of the department, criteria for the approved system shall be incorporated into this chapter in accordance with the Virginia Administrative Process Act (§ 9-6.14:1 et seq. of the Code of Virginia). The criteria shall include, at a minimum, the site conditions necessary for permitting a system, design considerations, installation criteria, performance, monitoring and service requirements of the methods, processes and equipment.

B. After the evaluation period specified in 12VAC5-610-447 is completed, site selection and design and construction criteria required in Part V (12VAC5-610-660 et seq.) of this chapter shall not be developed if the commissioner concludes that the sewage treatment and disposal system, method, process or equipment has not demonstrated satisfactory performance and operational competency equal to or better than that of a gravity flow septic tank-drainfield absorption system. The provisional system approval may be extended or rescinded for any system failing to show equivalency with a gravity flow septic tank-drainfield absorption system. After the provisional approval for a system has been rescinded, any future applications for systems utilizing the same design shall be denied. However, this provision shall not be used to prevent systems of similar design which have been modified in a manner which can reasonably be expected to overcome the previously identified deficiencies to be considered under the experimental requirements of this chapter.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 16, Issue 16, eff. July 1, 2000.

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