Can VDH employees consult as AOSEs during non working hours?
No. GMP #100 specifically prohibits this (see page 31). Such work may constitute a conflict of interest or an apparent conflict of interest.
What are the advantages to a citizen if they hire an AOSE?
In backlogged areas an AOSE can reduce the time it takes to obtain an approval from the Department. There may be other benefits but each person needs to determine these individually.
Under the Emergency AOSE Regulations VDH would not consult with an AOSE before they turned in work. Now under the final AOSE Regulations VDH will provide consultation. Why the change?
The simple answer is, VDH was (and continues to be) concerned about clearly defining and clearly assigning the roles and responsibilities of the AOSE conducting the site evaluation and the EHS issuing the permit. During the adoption process it became clear that the AOSE community wanted the ability to consult with VDH about marginal sites before submitting work. VDH heard those concerns and revised the regulations accordingly.
So as an AOSE when I find a site that I'm not sure about certifying as complying with the Regulations I can request a courtesy review?
Yes, provided you have not submitted an application and provided VDH has the time to do the work.
Sometimes I find sites that may meet your Regulations but don't meet my standards. In other words, some sites I look at for a client may meet your Regulations but I wouldn't want my drainfield in those soils so I'd really don't want to certify such a site. My question therefore is, does an AOSE have to certify every site they evaluate that meets the regulations?
No. An AOSE may be more conservative than the Regulations. Unlike VDH staff, who are specifically hired to enforce the Regulations, an AOSE is not compelled by the AOSE Regulations or any policy of the Department to certify that all sites that comply with the Regulations. Any site that an AOSE certifies as meeting the Regulations should in fact meet the Regulations (and not some lesser standard that an AOSE may think is adequate). However, an AOSE is free to establish personal standards higher than those found in the Regulations and not certify every site that meets the minimum requirements of the Regulations. VDH staff on the other hand are specifically paid to enforce the Regulations and must issue a permit when a site they review meets the Regulations.
What is my liability as an AOSE if I make a mistake on a site evaluation?
The short answer is ask your lawyer. The Department's expectation is each AOSE will consider their liability prior to submitting work to the Department. An AOSE may decide to carry errors and omissions insurance: however, there is no legal requirement for an AOSE to carry errors and omissions or any other form of insurance.
What enforcement action will the health department take if they disagree with my decision?
Without specific details about the disagreement or knowledge of prior performance, a specific answer is not possible. Even with specific details, the Department is not inclined to answer hypothetical questions about enforcement questions; however, our goals and interest in the program will influence our enforcement actions.
One of the Department's main interests in the program is to assure competency of those persons providing AOSE services. A competent AOSE (i.e., one who follows established practices and maintains competency through continuing education) may make a recommendation that the Department disagrees with on occasion. The Department has the final word on what site conditions comply with the regulations and in exercising this authority the Department intends to be fair and consistent and use appropriate actions to assure competency. Such a disagreement may result in no action being taken all the way to revoking an AOSE's credentials with a nearly infinite range of possibilities in between. Revocation of credentials would be a very serious action taken because of a need to protect citizens against an incompetent or unethical provider. It is difficult to speculate on what specific action would be used within this possible range of actions but the Department's interest (as already noted) is to assure AOSE competency.
Within the Commonwealth any individual can challenge a case decision made by the Department to the extent that the decision affects them. Because the Department's decisions can be challenged certainly limits any inclination to take an arbitrary or capricious action. This concept of challenging decisions to the extent that one is affected is expressed in GMP #100 and the AOSE Regulations.