When do Virginia's alternative onsite sewage system rules trigger limits on what localities can require?

Plain-English summary

Delegate Edward Scott asked AG William Mims a procedural question wrapped inside a substantive one. The 2009 General Assembly passed two related changes. One ("Amendment 1") amended Va. Code § 32.1-163.6 to require that engineered onsite sewage systems comply with operation, maintenance, and monitoring regulations the State Board of Health was supposed to write within 280 days. The other ("Amendment 2") amended § 15.2-2157 to forbid localities from banning Board-approved alternative onsite sewage systems and from setting maintenance standards stricter than the Board's. Amendment 2 included a delayed-effective-date clause: subsections (C) and (D) would take effect thirty days after the Board finally promulgated the new operation-and-maintenance regulations.

Delegate Scott wanted to know whether emergency regulations would count as "final promulgation" sufficient to flip Amendment 2 on. The AG concluded that yes, when the Board adopted the required emergency regulations, the trigger fired and § 15.2-2157(C)-(D) became enforceable thirty days later. The Administrative Process Act permits emergency regulations precisely when a statute compels rulemaking on a short deadline, and the 280-day clock in Amendment 1 fit that pattern. Emergency regulations are limited to twelve months, so the Board would need to follow up with permanent regulations to keep them in force, but for purposes of triggering Amendment 2, the emergency adoption was enough.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What was § 15.2-2157(C)-(D) waiting on?
A: Final promulgation by the Board of Health of regulations governing the operation and maintenance of alternative onsite sewage systems. The General Assembly tied the locality-preemption rule to whatever the Board produced, then gave a thirty-day grace period after final promulgation.

Q: Did emergency rulemaking count as "final promulgation"?
A: Yes, in the AG's view. The Administrative Process Act authorizes emergency rulemaking when statute requires a rule effective in 280 days or less. § 2.2-4011. The 2009 enactment clause used that exact language, which the AG read as a legislative signal that emergency rulemaking was the intended path.

Q: Why did this matter for localities?
A: Until the trigger fired, counties and cities could continue to set their own rules for alternative septic systems within their jurisdictions. Once it fired, the Code preempted local bans and prevented local maintenance standards that exceeded the Board's.

Q: Did the AG say anything about whether the Board had actually adopted the regulations yet?
A: No. The opinion answered the conditional question. The AG noted in a footnote that the Board had not yet adopted the operation-and-maintenance regulations referenced in the 2007 amendments to § 32.1-164.

Background and statutory framework

The Board of Health has supervisory authority over onsite sewage systems under § 32.1-164(A). Its regulations govern collection, conveyance, transportation, treatment, and disposal of sewage by onsite and alternative discharging sewage systems. The Administrative Process Act, Va. Code §§ 2.2-4000 to 2.2-4031, governs how agency regulations are adopted. Emergency regulations under § 2.2-4011(C) take effect on filing with the Registrar of Regulations and last up to twelve months. If the agency wants to continue regulating beyond that window, it must run the permanent rulemaking process.

The legal mechanic in this opinion is the link between an enactment clause's deadline and the AG's reading that the legislature wanted speed, not the full notice-and-comment cycle.

Citations

• Va. Code Ann. § 2.2-4011 (emergency regulations)
• Va. Code Ann. § 2.2-4012 (effective date of emergency regulations)
• Va. Code Ann. § 15.2-2157 (locality authority over onsite sewage)
• Va. Code Ann. § 32.1-163.6 (operation, maintenance, and monitoring of alternative systems)
• Va. Code Ann. § 32.1-164 (Board of Health supervisory authority)
• 2009 Va. Acts ch. 220 (Amendment 1)
• 2009 Va. Acts ch. 786 (Amendment 2)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-062-Scott.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

November 9, 2009

The Honorable Edward T. Scott
Member, House of Delegates
206 South Main Street, Suite 203
Culpeper, Virginia 22701

Dear Delegate Scott:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

Assuming that the Board of Health (the "Board") adopts emergency regulations pursuant to §§ 2.2-4011 and 2.2-4012 and the regulations become final, you ask whether these regulations will trigger the applicability of § 15.2-2157(C)-(D) and meet the requirements of § 32.1-163.6. If not, you ask what the Board must do to meet such requirements.

Response

It is my opinion that adoption by the Board of Health of the emergency regulations required by the enactment language of the 2009 amendments to § 32.1-163.6 will trigger the applicability of § 15.2-2157(C)-(D) upon the effective date of such regulations.[1]

Applicable Law and Discussion

The 2009 Session of the General Assembly made significant changes to the laws regarding both traditional and alternative onsite sewage treatment systems and specifically amended § 32.1-163.6 ("2009 Amendment 1") to require that engineered onsite sewage systems "comply with operation, maintenance, and monitoring requirements as set forth in regulations implementing [Chapter 6]."[2] The second enactment clause of 2009 Amendment 1 required the Board to adopt regulations within 280 days to establish performance requirements and horizontal setbacks for alternative systems permitted by the Board's regulations implementing Chapter 6.[3] The General Assembly also required that the regulations contain operation and maintenance requirements consistent with the requirements for alternative onsite sewage systems in § 32.1-164.[4]

Additionally, the 2009 Session of the General Assembly amended § 15.2-2157 ("2009 Amendment 2") to prohibit localities from banning "the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health" in areas where sewers or sewerage disposal facilities are not available.[5] The amendments to § 15.2-2157 further provide that localities "shall not require maintenance standards and requirement for alternative onsite sewage systems that exceed those allowed under or established by the State Board of Health pursuant to § 32.1-164."[6] The second enactment clause of 2009 Amendment 2 provides that "the provisions contained in subsections C and D of § 15.2-2157 of the Code of Virginia shall become effective 30 days following final promulgation by the Board of Health of regulations governing the operation and maintenance of alternative onsite sewage systems[.]"[7]

The Board is tasked with the "supervision and control over the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems, and treatment works as they affect the public health and welfare."[8] Further, regulations adopted by the Board "shall govern the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems."[9]

The Virginia Administrative Process Act (the "APA")[10] governs the adoption of regulations by agencies of the Commonwealth. Section 2.2-4011 of APA permits agencies to "adopt emergency regulations in situations in which Virginia statutory law … requires that a regulation be effective in 280 days or less from its enactment." Emergency regulations are limited to twelve months in duration.[11] The inclusion of the 280-day requirement for regulations in an enactment clause of 2009 Amendment 1 demonstrates the General Assembly's intention that such regulations be promulgated as emergency regulations pursuant to § 2.2-4011.

Section 2.2-4012(B) of APA mandates that an emergency regulation "shall become effective upon its adoption and filing with the Registrar of Regulations, unless a later date is specified." APA provides several methods for the promulgation and adoption of regulations[12] and distinguishes between regulations with respect to proposed and final stages.[13] I find no indication that emergency regulations may not be adopted as final regulations by the agency. However, § 2.2-4011 describes the steps an agency must take "[i]f the agency wishes to continue regulating the subject matter governed by the emergency regulation beyond the twelve-month limitation."[14]

Conclusion

Accordingly, it is my opinion that adoption by the Board of Health of the emergency regulations required by the enactment language of the 2009 amendments to § 32.1-163.6 will trigger the applicability of § 15.2-2157(C)-(D) upon the effective date of such regulations.[15]

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Because I answer your first inquiry in the affirmative, there is no need to address your second question.
2. 2009 Va. Acts ch. 220, available at http://leg1.state.va.us/cgi-bin/legp504.exe?091+ful+CHAP0220+pdf (adding subsection I to § 32.1-163.6).
3. Id., cl. 2.
4. Id.
5. See 2009 Va. Acts ch. 786, available at http://leg1.state.va.us/cgi-bin/legp504.exe?091+ful+CHAP0786+pdf (adding subsection C to § 15.2-2157).
6. Id. (adding subsection D to § 15.2-2157).
7. Id., cl. 2. I note that enactment clause 2 refers to promulgation by the Board of regulations governing the operation and maintenance of alternative onsite sewage systems as required by the 2007 Session of the General Assembly in its amendments to § 32.1-164. See 2007 Va. Acts chs. 892, 924, at 2426, 2429, 2543, 2547, respectively (adding subsection H to § 32.1-164). It appears that the Board has not adopted such regulations.
8. VA. CODE ANN. § 32.1-164(A) (2009).
9. Section 32.1-164(B).
10. See VA. CODE ANN. §§ 2.2-4000 to 2.2-4031 (2008 & Supp. 2009).
11. Section 2.2-4011(C) (2008). If an agency wishes to continue regulating the subject matter beyond the 12-month effective period for emergency regulations, it is to promulgate a permanent regulation to replace the emergency regulation in accordance with the procedures set out in Article 2 of the APA. See 1999 Op. Va. Att'y Gen. 36, 39 n.11 (interpreting § 9-6.14:4.1(C)(5), predecessor to § 2.2-4011).
12. See, e.g., § 2.2-4007(A) (2008 (providing that any person may petition agency to request development of new regulation or amendment of existing one).
13. See § 2.2-4007.06 (2008).
14. See also supra note 11.
15. See supra note 1.