Over the past few weeks, HB1178 and SB401 have changed significantly as they moved through committee. Both bills now contain identical substitute language, replacing the original drafts that caused serious concern across the septic industry.

Overall, the substitute language is a step in the right direction.

Some of the most troubling parts of the original bills—especially the idea that a single test could qualify as an “inspection,” or that pass/fail-style determinations might return have been addressed. The revised language restores a component-based inspection approach that better reflects how real inspections are performed in the field.

There are also several practical clarifications that help inspectors:

• A clearer definition of “readily accessible,” including the 30-inch depth limit, which helps prevent unrealistic expectations that inspectors must excavate deeply buried components as part of a standard inspection.
• A clarification that the 10-business-day reporting timeline begins when the inspection starts, which mostly aligns with how inspections are already performed and understood in real estate transactions.

We support these changes.

However, the substitute also introduces a new requirement that inspectors must indicate whether the system is “operating as intended.”

We believe this portion of the bill should be removed. It asks inspectors to make a broad, subjective conclusion about an entire system without defining what that standard means, without testing protocols, and without a clear rubric—creating liability for inspectors, confusion for realtors, and false certainty for the public.

The detailed analysis below explains:

• What changed in the substitute language
• What improvements the industry should support
• Why the “operating as intended” requirement creates real problems in practice
• What legislators should consider as these bills continue moving

The substitute language is an improvement, but the legislative process is still underway. Amendments are still possible, and industry input matters right now.

HB1178 and SB401 Update for Virginia’s Septic Inspection Industry

Where the bills stand and why this matters

Two companion bills moving through Virginia’s Virginia General Assembly—HB1178 in the Virginia House of Delegates and SB401 in the Virginia Senate—started the session with identical “introduced” language that would have redefined what qualifies as a septic inspection in a real-estate transaction. 

Over the last couple of weeks, both bills pivoted: the original “one or more activities” inspection model has been replaced by committee substitute language. The House substitute is dated February 10, 2026 (proposed by the House Committee on General Laws), and the Senate substitute is dated February 11, 2026 (proposed by the Senate Committee on General Laws and Technology). 

This is a meaningful shift in direction. The substitute language resolves the most concerning elements of the introduced drafts—especially the concept that a single standalone test (for example, dye testing or sludge/scum measurement) could satisfy the legal definition of an “inspection.” 

At the same time, the substitute adds (and/or preserves) several requirements that matter operationally and legally for inspectors. Three changes are particularly important for the onsite industry: (i) a more specific “readily accessible” definition with a depth threshold, (ii) a clarified “10 business days” report clock tied to when the inspection begins, and (iii) a new requirement that the report indicate whether the system is “operating as intended.” 

What changed in the committee substitutes

The committee substitutes now define a septic “inspection” around minimum component-based expectations (inspection and reporting on readily accessible and openable components, plus specified observations), rather than defining an inspection as “one or more” selectable activities. 

The introduced versions had taken the opposite approach: they stated an inspection “may include one or more” of a list such as flow testing, dye testing, camera scoping, sludge/scum measurement, hydraulic load testing, interior tank inspection, and excavation—meaning any single listed activity could have been treated as a legal “inspection.” 

The substitutes also restore/strengthen guardrails against outcome-based grading. The substitute language explicitly prohibits (a) pass/fail determinations or graded functionality assessments and (b) hydraulic load testing to simulate peak daily flows. 
By contrast, the introduced drafts were structured to say inspectors would not be required to provide pass/fail determinations—language that effectively re-opens the door to pass/fail practices without establishing any standard for how such determinations would be made. 

Within that broader reset, the substitute brings three highly relevant “nuts and bolts” changes:

First, “readily accessible” is tightened and given a depth threshold. The substitute defines “readily accessible” as approachable/openable/enterable without risk of damage or alteration—and then adds that it does not include removal of surface material exceeding 30 inches in depth to uncover septic tank lids, distribution devices, or inspection ports. 
This is a change from the introduced language, which used a 24-inch threshold. 
It is also a major clarification compared with the “readily accessible” discussion that surfaced when the 2025 septic inspection law took effect (where industry debate often centered on whether “readily accessible” implicitly included digging, and how much). 

Second, the report turnaround is explicitly anchored to when the inspection begins. The substitute requires the written report within 10 business days from the start/first day of the inspection (unless otherwise agreed in writing). 
In practice, this clarification largely aligns with what most parties already assume: the clock starts when the onsite inspection work starts—not at some later milestone (for example, pumping completion, receipt of records, or a follow-up visit). This aligns with how the 2025 law was commonly communicated to real-estate stakeholders as well, even if contracts sometimes attempted to compress timelines. 

Third, the substitute adds a requirement that the report “indicate whether the system is operating as intended.”
This is the portion we believe should be removed, for the reasons explained below.

What the new language means for scope, contracts, and “readily accessible”

From an implementation standpoint, the substitute’s 30-inch “surface material removal” threshold is a step in the right direction because it helps separate two things that too often get blended in real-estate inspections:

An inspection that documents the condition of readily accessible components (as defined), versus an agreement to perform excavation to expose components that are buried unreasonably deep or would require substantial disturbance.

Under the substitute definition, if a septic tank lid, distribution device, or port is more than 30 inches below the surface such that exposing it would require removing more than 30 inches of material, that component can be reported as not readily accessible—meaning it should not be presumed “within scope” unless the parties separately contract for that excavation. 

This matters because it reduces ambiguity in three directions at once:

For inspectors, it creates a clearer statutory basis to document why a buried port or device was not accessed—without implying the inspector failed to carry out required work. 

For realtors and transaction coordinators, it reduces “scope creep” disputes where one party assumes the inspection fee includes digging up deeply buried infrastructure. 

For consumers, it improves expectation-setting: inspection findings can be tied to what was observable without unreasonable disturbance, and any deeper investigation can be scoped, priced, and authorized deliberately rather than assumed. 

The substitute also keeps a contract-centered structure, requiring a written signed contract that describes scope and costs, obtains permission, and states that a complete inspection requires pumping the septic tank (while documenting if the client declines pumping). 
Notably, this replaces the introduced bill’s contract language that framed pumping as optional and potentially unnecessary or “stressful,” a framing that was widely criticized because it discourages thorough inspection where tank interior conditions matter. 

Why “operating as intended” is a problem in an inspection statute

We support the substitute’s direction overall because it moves away from the “single test equals inspection” framework and brings the bills closer to the component-based reality of professional inspections. 
However, we are strongly opposed to the new requirement that inspectors must “indicate whether the system is operating as intended.” 

The central issue is that this requirement pushes inspectors to convert a set of component observations into an overall “yes/no” conclusion without any statutory definition, rubric, or performance standard for what “operating as intended” means in the real world.

That is out of alignment with how inspections are structured in parallel fields. For example, InterNACHI’s Standards of Practice emphasize that inspectors are not required to determine the “performance or efficiency” of systems and are not required to evaluate components that are not readily accessible—because an inspection is a limited evaluation, not a warranty of performance. 
Similarly, American Society of Home Inspectors’ Standards of Practice explicitly frame inspections as “not technically exhaustive” and not a substitute for engineering-level determinations. 
And in Virginia specifically, home inspection contract rules require disclosure that the report is based on visual observation at the time of inspection and is not intended to be a guarantee or warranty. 

The septic substitute itself contains similar “inspection-not-a-warranty” signals. It states inspectors are not required to offer warranties or guarantees and are not required to calculate “strength, adequacy, or efficiency” of any system or component. 
That makes the “operating as intended” requirement internally contradictory in practice: it pressures inspectors to communicate a broad assurance (or denial of assurance) about “the system” while the same statute says inspectors are not required to provide warranty-like guarantees or technical performance calculations. 

Why this becomes arbitrary for inspectors, realtors, and the public

The substitute already requires inspectors to (a) identify inspected components, (b) list components not inspected and why, (c) document adverse conditions like defective/damaged components, and (d) describe consequences and recommend further evaluation as needed. 
That framework is appropriate for an inspection report because it stays anchored to observable facts about specific components.

By contrast, “operating as intended” forces a judgment call about the entire system, even where the inspector has documented defects that may or may not be immediately “function-stopping.” That invites arbitrary thresholds that will vary inspector-to-inspector:

• Is a tank with root intrusion “operating as intended” if fixtures still drain today, even though the defect indicates a loss of watertight integrity and future risk?
• Is an advanced treatment unit “operating as intended” if it powers on and cycles, but the inspector has not (and often cannot in a point-of-sale context) confirm effluent quality?

Here’s the technical trap: in regulated contexts, determining whether an advanced treatment unit is meeting treatment performance commonly depends on effluent sampling and lab analysis—not just a visual check or operational soundness. Virginia Department of Health regulations for small alternative onsite sewage systems require grab sampling of effluent and analysis using approved methods within defined timeframes, reflecting that treatment “performance” is ultimately measured analytically. 
And industry performance testing protocols for residential wastewater treatment units (as reflected in NSF/ANSI Standard 40 test reporting) are explicitly built around repeated influent/effluent sampling and analysis of parameters such as CBOD5 and TSS. 

When a statute tells a real-estate inspector to declare whether a system is “operating as intended,” but does not define that phrase or tie it to measurable criteria, it creates a liability channel with no practical safe harbor. 
Inspectors are incentivized to protect themselves either by:

• defaulting to “not operating as intended” whenever any defect exists (which will disrupt transactions and inflate conflict), or
• defaulting to “operating as intended” unless there is an obvious failure (which can mislead consumers and increase downstream disputes).

Either outcome is bad for realtors, bad for inspectors, and bad for the public—because it turns a facts-based inspection into an unstandardized quasi-certification. 

What we recommend legislators do and how to explain it simply

We recommend keeping the substitute’s improvements (especially the component-based inspection approach, the explicit statement that pass/fail determinations are prohibited, and the clearer “readily accessible” boundary), while striking the clause that requires an overall “operating as intended” conclusion. 

A legislator-friendly way to explain this request is:

An inspection should document observed conditions and identify risks and needed follow-up, not certify that an entire complex system is “good” or “bad” without defined standards—because that transforms an inspection into a warranty-like statement and increases disputes.

If you want a short set of talking points that are easy to communicate in a phone call or committee conversation:

Keep the improvements that clearly define scope. The 30-inch threshold helps avoid unreasonable expectations that inspectors must excavate deeply buried components as part of a standard inspection contract. 

The “10 business days” clarification is fine and not a major change. It aligns with how most people already understand inspection timelines (the clock starts when the inspection begins). 

Strike “operating as intended” because it creates an unregulated pass/fail-by-another-name.The substitute already bans pass/fail determinations, yet “operating as intended” pressures inspectors to deliver a bottom-line conclusion without an objective rubric. 

It conflicts with how inspections work in other regulated areas. Virginia home inspection rules require disclosure that an inspection report is based on visual observation and is not a warranty or guarantee—because inspections are limited snapshots, not certifications. 

It is especially problematic for advanced treatment and performance questions. Real “performance” is commonly validated through sampling and testing requirements in other regulatory contexts—not through a point-of-sale inspection narrative conclusion. 

If lawmakers want a “summary” section in reports for consumer readability, the safer option is a summary of documented component conditions and recommended next steps—without forcing an undisciplined global “system is/is not operating as intended” statement. 

Call to action for the onsite wastewater industry

The substitute language is a step in the right direction compared to the introduced bills, but amendments are still possible as the bills continue moving. Industry professionals should continue tracking both measures and engaging respectfully and technically. 

Action matters now because these bills have been active in both chambers, and the legislative process can move quickly once substitute language becomes the working draft. 

Who to contact and what to ask for

The bill patrons named in the introduced texts are Delegate Kimberly Pope Adams for HB1178 and Senator Emily M. Jordan for SB401. 
Ask your own Delegate and Senator to support an amendment that:

• preserves the substitute’s component-based inspection structure and scope clarity, and
• removes the requirement to “indicate whether the system is operating as intended.”

A practical message you can send

Below is sample language industry members can adapt (keep it short, technical, and respectful):

We support the committee substitute direction because it preserves a component-based inspection standard and prevents standalone tests from being labeled an “inspection.” We also support the added clarity that components requiring removal of more than 30 inches of surface material are not “readily accessible,” so inspectors are not presumed to excavate deeply buried components as part of a standard inspection. Finally, we have no objection to clarifying that the 10-business-day reporting period runs from when the inspection begins. 

We respectfully request removal of the requirement that inspectors must state whether “the system is operating as intended.” That phrase is undefined, creates an outcome-based conclusion without criteria, and effectively reintroduces pass/fail-style determinations by another name—creating liability for inspectors and confusion for buyers, sellers, and realtors. The inspection report should document observed conditions of specific components, consequences, and recommended follow-up, but should not be forced into a global “good/bad” conclusion without a statutory standard. 

Keep showing up

If you have the opportunity to testify or submit comments, focus on concrete operational realities: written scope, access limits, what can/cannot be verified without excavation, and what can/cannot be verified without analytical testing. Tie every recommendation back to consumer clarity and reduced transaction conflict. 

Read the new bill language here: SB401 / HB1178