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National Onsite Wastewater Recycling Association, Inc
P. O. Box 1270, Edgewater, MD 21037-7270
410-798-1697 § 800-966-2942 § Fax: 410-798-5741
E-mail: email@example.com or firstname.lastname@example.org
Web site: http://www.nowra.org
REFORMING ONSITE WASTEWATER REGULATIONS
A White Paper of the National Onsite Wastewater Recycling Association
Adopted September 2004
This white paper has been authored by the leadership of the Model Performance Code Committee of the National Onsite Wastewater Recycling Association (NOWRA). It presents the concept of a national Model Performance Code that advances key components within NOWRA’s 1997 Strategic Planning Framework. The purpose was approved by the NOWRA Board, June 12, 2004 and formally adopted September 28, 2004.
The primary basis for this paper is to present to elected officials, regulatory staff, onsite industry businesses and interested public the advantages of using performance over prescription codes in making decisions on the use and location of onsite or cluster wastewater treatment [RJO1] systems. It supports the ongoing efforts of regulatory officials and the overall onsite and decentralized wastewater treatment industry with an effective approach to achieve efficient and affordable onsite wastewater regulations to manage public health and water quality risks, by addressing the following subjects.
- Defining the differences between prescriptive and performance approaches to onsite and cluster system regulation.
- The need to reform the decision-making process for regulations affecting the use, application and sustained management of onsite/cluster wastewater treatment technology and systems.
- Presenting new approach to regulations, decision-making, and how the National Onsite Wastewater Association (NOWRA) will support the states and localities in this endeavor.
NOWRA represents, and is the leadership voice for, all professional sectors within the onsite industry. As a non-profit 501-C(6) corporation, NOWRA’s principal purpose is to educate and serve its members and the public by promoting sound federal, state, and local policy, improving standards of practice, and advancing public recognition of the decentralized wastewater infrastructure. As a guide to establish future national policy for onsite wastewater technology, systems and management, the NOWRA strategic framework consists of seven components.
1. Performance requirements that protect human health and the environment.
2. System management to maintain performance within the established performance requirements.
3. Compliance monitoring and enforcement to ensure system performance is achieved and maintained.
4. Technical guidelines for site evaluation, design, construction, operation and acceptable prescriptive designs for specific site conditions and use.
5. Education/training for all practitioners, planners, and owners.
6. Certification/licensing for all practitioners to maintain standards of competence and conduct.
7. Program reviews to identify knowledge gaps, implementation shortcomings and necessary corrective actions.
Collectively, these components create a total system of performance management. The work from the NOWRA Model Performance Code embraces the principles of this framework, and promotes their implementation in the development of state and local onsite wastewater regulations.
Introduction – Existing Problems with State Codes
In June 2004, NOWRA completed a study addressing the current status of both regulations and practices that affect how decisions are made regarding onsite wastewater technology and systems. The study also addressed the enforcement process that is essential in the effective management of onsite and cluster [RJO3] systems. Key findings, forming the basis for the positions in this paper, are summarized in the following discussions.
Nearly every state within the U.S. with onsite codes are prescriptive. At the same time, each state’s prescriptive code is unique, often varying with different design specifications for similar conditions. This means that for state and local governments to accept new technology, methods and designs and employ consistent practices and standards, these codes must be changed. However, changing a state code change can take 5 to 10 years to complete. These delays significantly raise the cost of design approvals and impede the introduction of innovation that improves the performance of the industry nationwide. The result of the slow acceptance of new treatment technology and system designs, has left owners of failed systems and vacant lots in many states with no approved solution to address these problems, even though suitable technology was in use in surrounding states.
In contrast, performance codes foster innovation and improve the quality of treatment from onsite systems. Although a few states in recent years have been trying to move to a performance approach in limited areas, most have even not started. In addition, while performance codes are common in the regulation of municipal treatment systems, no state has yet developed a full scope performance code for on-lot treatment systems.
A “prescriptive code” specifies the means of achieving an objective and excludes other means of achieving the same objective.
Prescription specifies a finite number of system designs that are pre-approved for use on sites with specific site and soil characteristics. Any other viable designs are excluded and adding these concepts usually requires a code change. The presence of variance procedures, engineered design options and experimental approvals does not transform the regulation into a performance code, because these designs are not available for general use. Further, the general and specific purposes of the provisions and specific performance standards may or may not be stated; and operational maintenance and audits may or may not be included.
Historically, most prescriptive codes include high-level purpose statements such as “protecting public health and the environment” and do not contain more specific purpose statements that support the inclusion of specific prescriptive provisions. This lack of citations makes it difficult to explain existing provisions or to justify variances. Further, prescriptive codes only concentrate on system installation issues and largely ignore operational issues such as required maintenance and management, even though some states are now beginning to require operational oversight and maintenance procedures.
Prescriptive codes that mix elements of performance contain design specifications in two modalities.
1. Specifications for designs that are not specifically linked to a performance requirement – for example, traditional code approvals for conventional and mound systems do not specify effluent quality.
2. Specifications are explicitly linked to a performance requirement.” Examples include:
§ ”Performance systems” – Specific designs are evaluated in test centers, field studies or to accepted engineering principles and are “deemed to comply” to the specific requirement if operated and maintained to operation specifications, and/or the effluent values are monitored to verify compliance to the requirement.
§ Most prescriptive codes contain a performance provision prohibiting the operation of a “failed systems.”
A “Performance code” means an administrative regulation that specifies the ends or results of a process or activity and allows solutions to occur that can demonstrate achievement of the objective requirement or standard.
Such demonstration for an onsite wastewater system could be made by test center evaluation, by application of accepted scientific and engineering principles and/or by system effluent monitoring. The objective is clearly defined and implemented in a four-step process.
1. The general and specific purpose of the provision is stated.
2. One or more performance requirements are provided which are linked to various risk conditions. The requirements are clearly defined as a measurable (enforceable) numeric or narrative performance requirements.
3. A method is provided to evaluate the proposed solutions relative to the performance requirements.
4. A mechanism is provided to ensure that the requirements are maintained during operation of the activity.
Performance and Prescriptive Code Characteristics
There are two primary characteristics that define the differences between performance and prescriptive codes.
- Under performance codes, onsite systems are designed specifically for the site in question to sustain water quality and public health and these systems are monitored over their service life to ensure the required treatment is achieved.
- Prescriptive codes exclude the general use of alternate solutions not specified in the code absent a code change. Performance codes allow the general use of other design solutions.
Current onsite codes that are described as “prescriptive” or “primarily prescriptive” also have some added “performance” elements. The inclusion of a “performance design” within a prescriptive code is simply an alternate way of adding additional prescriptive designs and does not transform the code into a performance code. A pure performance code contains only performance provisions while recognizing multiple prescriptive solutions. For example, a performance code may specify final effluent with less that 20-ppm nitrate and recognize prescriptive designs that achieve the requirement, either standard designs or individual engineered designs.
The performance concept can also apply to the certification of individual classifications or service providers and to service organizations including regulatory agencies. For example, a prescriptive code may require that all certified designers be engineers and all installers be plumbers, where a performance code may provide a performance evaluation of knowledge, skills, and abilities of any applicant. Furthermore, the concept can be applied to quality assurance processes such as plan review.
Developing Onsite Performance Codes
There are a number of issues to be considered in developing onsite performance codes.
1. Statewide versus Focused Application of Performance Requirements
Many current codes apply requirements statewide instead of focusing on specific problem areas. Because risk conditions vary by area, statewide requirements are either too lenient in some locations or too strict in others. Too lenient means that unnecessary health and environmental risk conditions occur. Too strict means that cost to owners are excessive and results in resistance to adoption and enforcement of the provision. States adopting minimum treatment requirements should concentrate on risk conditions that exist at every site (minimum state requirements) and allow local governments, who are more familiar with local conditions, to set requirements focused on specific conditions. Risks include environmental sensitivity, public health, wastewater characteristics, and treatment complexity. Instead, many states set conservatively strict requirements to manage the greatest potential risks, resulting in over-specification of the requirement relative to risk at most sites and/or under-enforcing the provision.
2. Focus on System Operation or Construction
Currently, most onsite regulations pay little attention to the operation stage of the treatment system. As a result, a significant number of systems that have either malfunctioned or failed remain uncorrected. Performance codes focus on the system output, maintained by proper operation and maintenance.
3. Role of Citizens in setting Requirements
The purpose of cluster and onsite wastewater regulations is to serve the interests of citizens by managing the risk of wastewater discharges” at a cost acceptable to the public. How are those interests to be determined? Ultimately those that write, adopt and enforce codes make the decision through a political process. A code developed by a single interest group such as regulators or installers will serve that group’s interests at the expense citizens and other groups. Citizen’s interests can be protected in several ways.
· State code development – A broad based advisory council representing the full scope of stakeholders provides a broad base of representative interests. Local regulators should be represented on the council as members. State officials should not be voting members as they have a conflict of interest in making final decisions on the content of the code advanced for policy approval. Individual citizens also influence the process by communication with the council and their individual elected representatives.
· Setting local government “treatment” and system management performance requirements – Citizens should be highly involved in setting local performance requirements above those minimums set by the state code. Citizens need to be involved because they pay the costs and enjoy the benefits of the regulation. Benefits include nuisance reduction, health and environmental protection, increased property values and longer lasting treatment systems. Costs include regulatory fees, extra time needed affecting the cost or feasibility of the project, potentially higher installation and operation costs and restrictions on the use of their land due failure to provide treatment designs suitable to site and soil limitations.
The goal of a performance code is to promote the desired treatment quality of systems and service providers in a manner that protects sustains public health and water quality. To accomplish this goal, regulators and policy makers need information, tools, skills and resources to effectively regulate onsite wastewater systems to the benefit of citizens and the industry. Within the process of developing a performance code, the following questions must be addressed.
· What are the difficulties that exist that require an onsite regulatory solution? How is it known that they occur?
· Are mixed motives involved – is it a different issue, such as rural land use control, the real target?
· What are the total contributors to the identified problems and what part is directly caused by onsite wastewater dispersal?
· To what extent does a proposed onsite wastewater regulation solve the problem? How do we know? What new problems are created by the solution?
· Does the regulation restrain freedom to apply effective solutions? If so, why?
· How is the regulation to be applied relative to variable site risks - is it a “one size fits all” solution or is it customized to the site risk?
· How unique is the code relative to neighboring jurisdictions? Why is it different? Is the difference justified?
· Does the rule unfairly benefit a segment of the industry at the expense of other segments?
· What are the specific costs and benefits associated with the regulation? Have they been accurately analyzed and shared with the general public?
· Is the public aware and able to make informed decisions?
· Who pays? If the benefit is a public good, is it funded directly by individual homeowners or with public dollars? If not public dollars, why not?
· How will the provision be enforced? Will the public and private costs be politically sustainable if the rules are enforced?
· Is the regulatory community able to implement? Is the service provider community able to implement? Are there sufficient trained personnel with the skills? Do code provisions provide for access to system components necessary to do adequate service and maintenance?
The NOWRA Model Performance Code – An Effective Approach
The NOWRA Model Code Committee that began involves a core group of more than fifty professionals representing all segments of the onsite industry, including regulators. During the past three years, committee meetings have been held in over a dozen locations throughout the U.S. in order to include state and local regulators and other participants from all regions, including Canada. The culmination of these activities is that the NOWRA model performance code now provides a consistent methodology that uses the following scientific tools and concepts to develop state and local codes for onsite systems.
1. A clear definition of a performance code that provides guidance for implementation.
· Clear performance requirements are established that enables solutions that satisfy the requirements.
· Performance requirements applied are based on specific risk management needs. Because risks vary, requirements should vary.
· Performance requirements involve treatment systems, certification and performance of individuals and service provider organizations, and the design of quality assurance administrative procedures.
2. A national evaluation system of standard treatment components, both soil and non-soil, now exists. The purpose is to replace the unique state-by-state evaluation process of standard designs. Individual designs will still need individual reviews
· Evaluation - Accept test data from evaluation programs such as NSF Standard 40, the Environmental Technology Verification (ETV) program and other sources to classify system and treatment designs to the classification matrices. Components listed on the NOWRA matrix could then be approved for use.
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