GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2019

 

SESSION LAW 2019-151

HOUSE BILL 268

 

 

AN ACT to disapprove certain wastewater treatment and dispersal rules adopted by the north carolina Commission for public health, to create a task force to recommend new wastewater treatment and dispersal rules, to create standards for an on‑site wastewater evaluator; and to make technical corrections.

 

The General Assembly of North Carolina enacts:

 

SECTION 1.  Pursuant to G.S. 150B‑21.3(b1), the following rules, as adopted by the North Carolina Commission for Public Health on August 8, 2018, and approved by the Rules Review Commission on October 18, 2018, are disapproved:

15A NCAC 18E .0103 (Incorporation by Reference)

15A NCAC 18E .0105 (Definitions)

15A NCAC 18E .0303 (Licensed or Certified Professionals)

15A NCAC 18E .0401 (Design Daily Flow)

15A NCAC 18E .0402 (Septic Tank Effluent Characteristics)

15A NCAC 18E .0403 (Adjustments to Design Daily Flow)

15A NCAC 18E .0505 (Soil Depth)

15A NCAC 18E .0805 (Tank Leak Testing and Installation Requirements)

15A NCAC 18E .1401 (Plans for Prefabricated Tanks)

15A NCAC 18E .1402 (Tank Design and Construction)

15A NCAC 18E .1404 (Plans and Specifications for Risers, Effluent Filters, and Pipe Penetration Boots)

SECTION 2.  Pursuant to G.S. 150B‑21.3(b1), the following rules, as adopted by the North Carolina Commission for Public Health on August 8, 2018, and approved by the Rules Review Commission on November 15, 2018, are disapproved:

15A NCAC 18E .1002 (Reclaimed Water Systems)

15A NCAC 18E .1101 (General Dosing System Requirements)

15A NCAC 18E .1102 (Pump Dosing)

15A NCAC 18E .1104 (Siphon Dosing)

15A NCAC 18E .1105 (Timed Dosing)

15A NCAC 18E .1106 (Pressure Dosed Gravity Distribution Devices)

15A NCAC 18E .1202 (Siting and Sizing Criteria for Advanced Pretreatment Systems with a Design Daily Flow Less Than or Equal to 1,500 Gallons/Day)

15A NCAC 18E .1203 (Siting and Sizing Criteria for Advanced Pretreatment Systems with a Design Daily Flow Greater Than 1,500 Gallons/Day and Less Than or Equal to 3,000 Gallons/Day)

15A NCAC 18E .1204 (Advanced Pretreatment Drip Dispersal Systems)

15A NCAC 18E .1205 (Advanced Pretreatment Sand Lined Trench Systems)

15A NCAC 18E .1206 (Advanced Pretreatment Bed Systems)

15A NCAC 18E .1303 (Owner Responsibilities for Wastewater System Operation and Maintenance)

15A NCAC 18E .1304 (Management Entity Responsibilities for Wastewater System Operation and Maintenance)

15A NCAC 18E .1305 (Local Health Department Responsibilities for Wastewater System Operation and Maintenance)

15A NCAC 18E .1306 (System Malfunction and Repair)

15A NCAC 18E .1307 (Wastewater System Abandonment)

15A NCAC 18E .1701 (General)

15A NCAC 18E .1702 (Application)

15A NCAC 18E .1703 (Department and Commission Application Review)

15A NCAC 18E .1704 (Approval Criteria for Provisional Systems)

15A NCAC 18E .1705 (Approval Criteria for Innovative Systems)

15A NCAC 18E .1706 (Approval Criteria for Accepted Systems)

15A NCAC 18E .1707 (Design and Installation Criteria for Provisional, Innovative, and Accepted Approvals)

15A NCAC 18E .1709 (Wastewater Sampling Requirements for Advanced Pretreatment Systems)

15A NCAC 18E .1710 (Compliance Criteria for Advanced Pretreatment Systems)

15A NCAC 18E .1711 (Provisional and Innovative Approval Renewal)

15A NCAC 18E .1712 (Authorized Designers, Installers, and Management Entities)

15A NCAC 18E .1713 (Local Health Department Responsibilities)

SECTION 3.  Pursuant to G.S. 150B‑21.3(b1) and S.L. 2015‑147, the following rules, as adopted by the North Carolina Commission for Public Health on August 8, 2018, are disapproved:

15A NCAC 18E .0508 (Available Space)

15A NCAC 18E .1301 (Operation and Maintenance of Wastewater Systems)

SECTION 4.  Pursuant to G.S. 150B‑21.3(b1) and S.L. 2014‑120, Section 47, the following rule, as adopted by the North Carolina Commission for Public Health on August 8, 2018, is disapproved:

15A NCAC 18E .1708 (Modification, Suspension, and Revocation of Approvals)

SECTION 5.  There is established the On‑Site Wastewater Task Force (Task Force).

SECTION 6.  The Task Force shall consist of 10 members, as follows:

(1)        A representative of the North Carolina Division of Public Health, On‑Site Water Protection Branch.

(2)        A person currently certified as a Water Pollution Control Systems Operator and actively conducting business as an operator of on‑site wastewater systems.

(3)        A representative of the North Carolina Environmental Health Supervisors Association.

(4)        A representative of the North Carolina Home Builders Association.

(5)        A representative of the North Carolina On‑Site Wastewater Contractor Inspector Certification Board.

(6)        A representative of the North Carolina Licensing Board for General Contractors.

(7)        A representative of the North Carolina Septic Tank Association.

(8)        A representative of the Consulting Soil Scientists Association of North Carolina with experience conducting private consultative services of sites evaluated for on‑site wastewater systems.

(9)        A representative of the North Carolina Board of Examiners for Engineers and Surveyors with experience in designing on‑site wastewater systems.

(10)      A representative of the North Carolina Board for Licensing of Soil Scientists with experience conducting private consultative services of sites evaluated for on‑site wastewater systems.

SECTION 7.  The first meeting of the Task Force shall be held no later than October 31, 2019. The Task Force member from the North Carolina Home Builders Association shall chair the first meeting of the Task Force. The permanent chair of the Task Force shall be elected by a majority of the members of the Task Force present and voting at the first meeting. A majority of the Task Force members shall constitute a quorum for the transaction of business. No action may be taken except by a majority vote at a meeting at which a quorum is present.

SECTION 8.  The Task Force may meet at various locations around the State in order to promote greater public participation in its deliberations and to accommodate the travel considerations of the members. The Legislative Services Commission shall grant adequate meeting space to the Task Force in the State Legislative Building or the Legislative Office Building. The Legislative Services Commission shall allocate from a portion of the funds appropriated to the General Assembly sufficient funds for the operation of the Task Force. The Task Force may contract for professional, clerical, or consultant services as provided by G.S. 120‑32.02. Members of the Task Force shall receive subsistence and travel expenses at the rates provided in G.S. 120‑3.1, 138‑5, or 138‑6, as appropriate.

SECTION 9.  The Task Force shall conduct a study and issue a report to recommend new wastewater rules to the Commission of Public Health. In conducting this study, the Task Force may collaborate with any stakeholders it deems appropriate. The report must make recommendations for all of the following:

(1)        New rules to replace the rules adopted by the Commission for Public Health and approved by the Rules Review Commission, which were to be codified in Chapter 18E of Title 15A of the North Carolina Administrative Code. The new rule recommendations should replace the rules disapproved by Section 1 through Section 4 of this act, as well as any rules that meet all of the following criteria: (i) adoption by the Commission of Public Health on August 8, 2018, (ii) approval by the Rules Review Commission on October 18, 2018, or November 15, 2018, (iii) codification in Chapter 18E of Title 15A of the North Carolina Administrative Code, and (iv) relation to on‑site wastewater treatment and dispersal.

(2)        New rules to prevent the implementation of rules and ordinances and enforcement against the use of on‑site wastewater treatment and dispersal systems in non‑sewered areas of the State.

SECTION 10.  The Task Force shall transmit its report to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Environmental Review Commission, the Joint Legislative Oversight Committee on Health and Human Services, and the Commission for Public Health no later than February 1, 2020. The Task Force will terminate on the earlier of the date it transmits its report or February 1, 2020.

SECTION 11.  15A NCAC 18A .1934 through .1971 shall remain in effect until new rules adopted by the Commission for Public Health to replace them become effective. 15A NCAC 18A .1934 through .1971 shall be exempt from the periodic review and expiration of existing rules process required by G.S. 150B‑21.3A.

SECTION 12.  The rules for on‑site wastewater treatment and dispersal cited as 15A NCAC 18E .0101‑.0102, .0104, .0201‑.0207, .0301‑.0302, .0304‑.0305, .0501‑.0507, .0509‑.0510, .0601‑.0602, .0701‑.0703, .0801‑.0804, .0901‑.0911, .1001, .1103, .1201, .1302, .1403, .1405‑.1406, .1501‑.1505, .1601‑.1603, adopted by the Commission for Public Health on August 8, 2018, and approved by the Rules Review Commission on October 18, 2018, and November 15, 2018, shall not become effective if the rules specifically enumerated in Sections 1 through 4 of this act are disapproved.

SECTION 13.  G.S. 130A‑343 is rewritten to read:

"§ 130A‑343.  Approval of on‑site subsurface wastewater systems.

(a)        Definitions. – As used in this section:

(1)        "Accepted wastewater dispersal system" means any subsurface wastewater dispersal system, other than a conventional wastewater system, that: (i) has been previously approved as an innovative Innovative wastewater dispersal system or other approved trench dispersal system by the Department; is a wastewater dispersal system specifically identified in a rule adopted by the Commission; (ii) has been in general use in this State as a wastewater dispersal system for more than five years; and (iii) has been approved by the Commission for general use or use in one or more specific applications. An accepted Accepted wastewater dispersal system may be approved for use in applications for which a conventional wastewater system is unsuitable. The Commission may impose any design, operation, maintenance, monitoring, and management requirements on the use of an accepted Accepted wastewater dispersal system that it determines to be appropriate.

(h)        Accepted Wastewater Dispersal Systems. – A manufacturer of an innovative Innovative wastewater dispersal system or other approved trench dispersal system specifically identified in a rule adopted by the Commission that has been in general use in this State for a minimum of five years may petition the Commission to have the system designated as an accepted Accepted wastewater system as provided in this subsection. The manufacturer shall provide the Commission with the data and findings of all prior evaluations of the performance of the system in this State and other states referenced in the petition, including disclosure of any conditions found to result in unacceptable structural integrity, treatment, or hydraulic performance. In addition, the manufacturer shall provide the Commission with information sufficient to enable the Commission to fully evaluate the performance of the system in this State for at least the five‑year period immediately preceding the petition. The Commission shall designate a wastewater dispersal system as an accepted Accepted wastewater system only if it finds that there is clear, convincing, and cogent evidence based on actual field surveys and county activity reports (i) to confirm the findings made by the Department at the time the Department approved the system as a wastewater dispersal system and (ii) that the system performs in a manner that is equal or superior to a conventional or Accepted wastewater system under actual field conditions in this State. The Commission shall specify the circumstances in which use of the system is appropriate and any conditions and limitations related to the use of the system.

…."

SECTION 14.  Article 11 of Chapter 130A of the General Statutes is amended by adding a new section to read:

"§ 130A‑336.2.  Alternative wastewater system approvals for nonengineered systems.

(a)        Authorized On‑Site Wastewater Evaluator. – An individual licensed as a soil scientist pursuant to Chapter 89F of the General Statutes and further certified under conditions developed and administered by the North Carolina On‑Site Wastewater Contractors and Inspectors Certification Board may, at the direction of the owner of a proposed wastewater system, prepare signed and sealed soil and site evaluations, specifications, plans, and reports for the site layout, construction, operation, and maintenance of a wastewater system in accordance with this section and rules adopted pursuant to this section. An Authorized On‑Site Wastewater Evaluator shall not perform any of the functions performed by a professional engineer for engineered wastewater systems described in G.S. 130A‑336.1.

(b)        Notice of Intent to Construct. – Prior to commencing or assisting in the construction, siting, relocation, or repair of a wastewater system, the owner of a proposed wastewater system who wishes to use an Authorized On‑Site Wastewater Evaluator shall submit a notice of intent to construct a wastewater system using an Authorized On‑Site Wastewater Evaluator to the local health department with jurisdiction over the location of the proposed wastewater system. The Department of Health and Human Services shall develop a common form for use as a notice of intent to construct that includes all of the following:

(1)        The owner's name, e‑mail address, mailing address, and phone number.

(2)        The Authorized On‑Site Wastewater Evaluator's name, certification number, mailing address, e‑mail address, and telephone number.

(3)        The physical location of proposed site.

(4)        Proof of errors and omissions, liability, or other insurance adequate for the proposed wastewater system.

(5)        A description of the facility the proposed site is to serve and any factors that would affect the wastewater load.

(6)        The type of wastewater system proposed.

(7)        The estimated wastewater flow and wastewater characteristics.

(8)        Any proposed landscape, site, drainage, or soil modifications.

(9)        An evaluation of soil conditions and site features that is conducted and signed and sealed by a licensed soil scientist or for geologic or hydrogeologic conditions by a licensed geologist.

(10)      A plat, as defined in G.S. 130A‑334(7a), or a site plan, as defined in G.S. 130A‑334(13a).

(c)        Completeness Review for Notice of Intent to Construct. – The local health department shall determine whether the notice of intent to construct required pursuant to subsection (b) of this section is complete within five business days after receiving the notice of intent to construct. A determination of completeness means that the notice of intent to construct includes all of the required components. If the local health department determines that the notice of intent to construct is incomplete, the local health department shall notify the owner and list the information needed to complete the notice. The owner may then submit additional information to the local health department to cure the deficiencies in the initial notice. The local health department shall make a final determination as to whether the notice of intent to construct is complete within five business days after the department receives the additional information. If the local health department fails to act within any time period set out in this subsection, the owner may treat the failure to act as a determination of completeness. The owner shall be able to apply for the building permit for the project upon the decision of completeness of the notice of intent by the local health department or if the local health department fails to act within the five business day time period.

(d)       Soil and Site Evaluation, Construction, and Activities. –

(1)        The Authorized On‑Site Wastewater Evaluator shall use standards incorporated in recognized soil and siting practices in North Carolina. The evaluation and findings shall include, at a minimum, the information required in rules adopted by the Commission pursuant to G.S. 130A‑335(e). An Authorized On‑Site Wastewater Evaluator shall not form a direct business relationship with any technology that may result in a conflict of interest.

(2)        The Authorized On‑Site Wastewater Evaluator shall prepare a signed and sealed statement of special inspections that includes the following items:

a.         The materials, systems, components, and work subject to special inspections and testing.

b.         The type, frequency, and extent of each special inspection and each test. For the purposes of this subdivision, "special inspection" means any continuous or intermittent inspection or visitation performed by the Authorized On‑Site Wastewater Evaluator at the construction site on behalf of the owner.

(3)        The Authorized On‑Site Wastewater Evaluator shall assist the owner in the selection of an on‑site wastewater system contractor who shall be under contractual obligation to the owner of the system and have sufficient errors and omissions, liability, or other insurance for the system constructed.

(4)        The Authorized On‑Site Wastewater Evaluator may assist in the construction, siting, relocation, or repair of any wastewater system described in G.S. 130A‑343.

(5)        Where the Authorized On‑Site Wastewater Evaluator's designs, plans, and specifications call for the installation of a conventional wastewater system, those designs, plans, and specifications shall allow for the installation of an Accepted system in lieu of a conventional system in accordance with the Accepted system approval.

(e)        Responsibilities of the On‑Site Wastewater System Contractor. – The on‑site wastewater system contractor retained by the site owner shall do all of the following:

(1)        Be certified pursuant to Article 5 of Chapter 90A of the General Statutes.

(2)        Be responsible for all aspects of the construction and installation of the wastewater system and its components, including adherence to specifications and any special inspections that are prepared, signed, and sealed by the Authorized On‑Site Wastewater Evaluator.

(3)        Submit a signed and dated statement of responsibility to the owner of the wastewater system, prior to commencement of work, that contains acknowledgement of the requirements of the on‑site wastewater system specified by the Authorized On‑Site Wastewater Evaluator.

(f)        No Public Liability. – The Department, the Department's authorized agents, and local health departments shall have no liability for wastewater systems developed by the Authorized On‑Site Wastewater Evaluator; however, nothing in this section shall relieve the Department, the Department's authorized agents, and local health departments from any of their other obligations under State law or administrative rule.

(g)        Inspections, Construction Observations, and Reports. –

(1)        A local health department may, at any time, conduct a site visit of the wastewater system.

(2)        An Authorized On‑Site Wastewater Evaluator shall make periodic visits to the site to observe the progress and quality of the construction.

(3)        An Authorized On‑Site Wastewater Evaluator may employ independent inspectors to observe and direct the construction of the wastewater system. Authorized On‑Site Wastewater Evaluators shall be liable for any errors or omissions made by independent inspectors they employ or contract with.

(4)        All construction and inspection reports shall be signed by the authorized inspector or Authorized On‑Site Wastewater Evaluator. Copies shall be furnished to the owner and the certified contractor and shall be included in the submittal package to the local health department.

(h)        Local Authority. – Nothing in this section shall relieve the owner of the wastewater system from complying with all rules adopted by a local health department pursuant to G.S. 130A‑335(c) that are in effect at the time the owner submits the notice of intent to construct described in subsection (b) of this section. The local health department shall notify the owner of the wastewater system of any issues of compliance related to such modifications or additions.

(i)         Operation and Management. –

(1)        An Authorized On‑Site Wastewater Evaluator shall establish a written operation and management program based on the rules established for similar wastewater systems and shall provide this information to the owner of the system.

(2)        If necessary to comply with rules adopted by the Commission, the owner shall enter into a contract with a water pollution control system operator certified pursuant to Part 1 of Article 3 of Chapter 90A of the General Statutes.

(3)        The owner shall be responsible for the continued adherence to the operations and management program established by the Authorized On‑Site Wastewater Evaluator pursuant to subdivision (1) of this subsection.

(j)         Post‑Construction Conference. – The Authorized On‑Site Wastewater Evaluator shall hold a post‑construction conference with the owner, the certified contractor, the certified water pollution control system operator, if any, and representatives from the local health department. The post‑construction conference shall include start‑up and any required verification of system components.

(k)        Required Documents. – At the post‑construction conference, the Authorized On‑Site Wastewater Evaluator shall provide the owner with the following documents:

(1)        A signed and sealed copy of reports on soil conditions and site features, layouts, drawings, specifications, justification on any proposed design daily flow reductions, and any special inspection reports or corrections made during the construction of the system.

(2)        The owner's operation and management program established for the specific wastewater system under subdivision (1) of subsection (i) of this section.

(3)        Any reports and findings related to the evaluation, siting, and construction of the wastewater system.

(l)         After reviewing the Authorized On‑Site Wastewater Evaluator's report, the owner shall sign and notarize a document confirming acceptance and receipt of the report. The owner shall then submit the following to the local health department:

(1)        A copy of the Authorized On‑Site Wastewater Evaluator's report.

(2)        A copy of the operations and management program established for the system by the Authorized On‑Site Wastewater Evaluator.

(3)        The fee established pursuant to subsection (n) of this section.

(4)        A notarized letter that documents the owner's acceptance of the system.

(m)       Authorization to Operate. – Within five business days of receipt of the required documents and fees described in subsection (l) of this section, the local health department shall issue the owner an authorization to operate confirming all the requirements of this section have been met and all rules adopted by the Commission pertaining to nonengineered on‑site wastewater systems have been complied with.

(n)        Fees. – The local health department may assess a fee for the system developed by the Authorized On‑Site Wastewater Evaluator of up to thirty percent (30%) of the cumulative total of the fees established for similar systems permitted by the local health department. The fee shall only be used by the local health department in support of its work pursuant to duties established by this section.

(o)        Change in System Ownership. – A wastewater system authorized pursuant to this section shall not be affected by change of ownership of the site for the wastewater system, provided both the site for the wastewater system and the type of facility the system serves are unchanged.

(p)        Remedies. – Notwithstanding any other provision of law to the contrary, Authorized On‑Site Wastewater Evaluators, certified contractors described in subsection (e) of this section, and certified water pollution control systems operators described in subdivision (2) of subsection (i) of this section shall be subject only to the disciplinary authority of their individual certifying boards.

(q)        Rule Making. –

(1)        The Commission shall have the power to adopt rules to implement the provisions of this section.

(2)        Notwithstanding any provision of law to the contrary, the North Carolina On‑Site Wastewater Contractors and Inspectors Certification Board shall have the exclusive authority to promulgate rules regarding certification of Authorized On‑Site Wastewater Evaluators where review and seal of a professional engineer is not necessary pursuant to this section.

(r)        Reports. – The Department shall report to the Environmental Review Commission and the Joint Legislative Oversight Committee on Health and Human Services by January 1, 2020, and annually thereafter, on the program established under this section. The Department shall specifically include the efficiency and effectiveness of the program developed under this section and whether the program aided in reducing the length of time in issuing permits. The Department shall obtain activity reports from the local health departments showing the wastewater systems developed under this section. The annual report shall include any suggestions for the improvement of this section, including adequate and appropriate insurance coverage, operator reporting requirements, or fee allowance."

SECTION 15.  If Senate Bill 190, 2019 Regular Session, becomes law, then Section 3 of that act reads as rewritten:

"SECTION 3.  Section 1 of this act becomes effective July 1, 2019. The remainder of this act becomes effective when it becomes law."

SECTION 16.  This act is effective when it becomes law.

In the General Assembly read three times and ratified this the 11th day of July, 2019.

 

 

                                                                    s/  Carl Ford

                                                                         Presiding Officer of the Senate

 

 

                                                                    s/  Tim Moore

                                                                         Speaker of the House of Representatives

 

 

                                                                    s/  Roy Cooper

                                                                         Governor

 

 

Approved 11:20 a.m. this 22nd day of July, 2019