Bill Text: MS SB2714 | 2012 | Regular Session | Introduced
Bill Title: Wastewater; remove revisions to the individual on-site wastewater disposal system law.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2012-03-06 - Died In Committee [SB2714 Detail]
Download: Mississippi-2012-SB2714-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Environment Prot, Cons and Water Res; Public Health and Welfare
By: Senator(s) Stone
Senate Bill 2714
AN ACT TO REMOVE REVISIONS TO THE MISSISSIPPI ON-SITE WASTEWATER DISPOSAL SYSTEM LAW IN SECTIONS 41-67-1, 41-67-2, 41-67-3, 41-67-5 THROUGH 41-67-11, 41-67-15, 41-67-25, 41-67-27 AND 41-67-28, MISSISSIPPI CODE OF 1972, THAT WENT INTO EFFECT JULY 1, 2009; TO AMEND SECTION 41-67-1, MISSISSIPPI CODE OF 1972, TO DELETE THE LEGISLATIVE INTENT; TO AMEND SECTION 41-67-2, MISSISSIPPI CODE OF 1972, TO DELETE CERTAIN DEFINITIONS; TO AMEND SECTION 41-67-3, MISSISSIPPI CODE OF 1972, TO REMOVE REFERENCES TO CERTIFIED PROFESSIONAL EVALUATORS AND MAINTENANCE PROVIDERS; TO AMEND SECTION 41-67-5, MISSISSIPPI CODE OF 1972, TO REMOVE THE PROHIBITION AGAINST TEMPORARY WATER SERVICE CONNECTIONS; TO AMEND SECTION 41-67-6, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME REQUIRED FOR THE DEPARTMENT OF HEALTH TO RESPOND TO REQUESTS; TO RESTORE THE TWO-ACRE EXEMPTION FOR INDIVIDUAL ON-SITE WASTEWATER DISPOSAL SYSTEMS; TO AMEND SECTION 41-67-7, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 41-67-9, MISSISSIPPI CODE OF 1972, TO RESTORE THE REQUIREMENT THAT A PRIVATE WATER SUPPLY WELL SHALL BE AT A HIGHER ELEVATION THAN A DISPOSAL SYSTEM; TO AMEND SECTION 41-67-10, MISSISSIPPI CODE OF 1972, TO DELETE CERTAIN CERTIFICATION REQUIREMENTS FOR ALTERNATIVE DISPOSAL SYSTEMS; TO AMEND SECTION 41-67-11, MISSISSIPPI CODE OF 1972, TO DELETE CERTAIN REQUIREMENTS FOR TEMPORARY DISPOSAL SYSTEMS; TO AMEND SECTION 41-67-15, MISSISSIPPI CODE OF 1972, TO DELETE THE REQUIREMENT THAT THE DEPARTMENT OF HEALTH SHALL NOT APPROVE ANY SYSTEM THAT DOES NOT COMPLY WITH A COUNTY OR MUNICIPAL ORDINANCE; TO AMEND SECTION 41-67-25, MISSISSIPPI CODE OF 1972, TO DELETE REFERENCES TO CERTAIN TERMS; TO AMEND SECTION 41-67-27, MISSISSIPPI CODE OF 1972, TO DELETE REFERENCES TO CERTAIN TERMS; TO AMEND SECTION 41-67-28, MISSISSIPPI CODE OF 1972, TO DELETE THE ADMINISTRATIVE FINE FOR CERTAIN VIOLATIONS; TO AMEND SECTION 41-67-31, MISSISSIPPI CODE OF 1972, TO CONFORM; TO REPEAL SECTION 41-67-33, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR PROCEDURES FOR CONDUCTING REVIEWS REQUESTED BY PERSONS AGGRIEVED BY A DECISION TO NOT APPROVE A WASTEWATER DISPOSAL SYSTEM; TO REPEAL SECTION 41-67-35, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE CERTIFICATION OF MAINTENANCE PROVIDERS; TO REPEAL SECTION 41-67-37, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE CERTIFICATION OF PROFESSIONAL EVALUATORS; TO REPEAL SECTION 41-67-39, MISSISSIPPI CODE OF 1972, WHICH REQUIRES A LICENSE FOR A PERSON OPERATING AS A PUMPER REMOVING AND DISPOSING OF SEPTIC TANK SLUDGE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-67-1, Mississippi Code of 1972, is amended as follows:
41-67-1. * * * This chapter shall be known and may be cited as the "Mississippi Individual On-Site Wastewater Disposal System Law."
* * *
SECTION 2. Section 41-67-2, Mississippi Code of 1972, is amended as follows:
41-67-2. For purposes of this chapter, the following words shall have the meanings ascribed herein unless the context clearly indicates otherwise:
* * *
(a) "Board" means the Mississippi State Board of Health.
* * *
(b) "Department" means the Mississippi State Department of Health.
* * *
(c) "Generator" means any person whose act or process produces sewage or other material suitable for disposal in an individual on-site wastewater disposal system.
(d) "Individual on-site wastewater disposal system" means a sewage treatment and effluent disposal system that does not discharge into waters of the state, that serves only one (1) legal tract, that accepts only human sanitary waste and similar waste streams maintained on the property of the generator, and that is designed and installed in accordance with this law and regulations of the board.
* * *
(e) "Person" means any individual, trust, firm, joint-stock company, public or private corporation (including a government corporation), partnership, association, state, or any agency or institution thereof, municipality, commission, political subdivision of a state or any interstate body, and includes any officer or governing or managing body of any municipality, political subdivision, or the United States or any officer or employee thereof.
(f) "Professional engineer" means any person who has met the qualifications required under Section 73-13-23(1) and who has been issued a certificate of registration as a professional engineer.
(g) "Property of the generator" means land owned by or under permanent legal easement or lease to the generator.
* * *
(h) "Subdivision" means any tract or combination of adjacent tracts of land that is subdivided into ten (10) or more tracts, sites or parcels for the purpose of commercial or residential development.
SECTION 3. Section 41-67-3, Mississippi Code of 1972, is amended as follows:
41-67-3. (1) The State Board of Health shall have the following duties and responsibilities:
(a) To exercise general supervision over the design, construction, operation and maintenance of individual on-site wastewater disposal systems;
(b) To adopt, modify, repeal and promulgate rules and regulations, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to, to grant exemptions from and to enforce rules and regulations implementing or effectuating the duties of the board under this chapter to protect the public health. The board may grant variances from rules and regulations adopted under this chapter, including requirements for buffer zones, or from setbacks required under Section 41-67-7 where the granting of a variance shall not subject the public to unreasonable health risks or jeopardize environmental resources;
(c) To provide or deny certification for persons engaging in the business of the design, construction or installation of individual on-site wastewater disposal systems and persons engaging in the removal and disposal of the sludge and liquid waste from those systems;
(d) To suspend or revoke certifications issued to persons engaging in the business of the design, construction or installation of individual on-site wastewater disposal systems or persons engaging in the removal and disposal of the sludge and liquid waste from those systems, when it is determined the person has violated this chapter or applicable rules and regulations; and
(e) To require the submission of information deemed necessary by the department to determine the suitability of individual lots for individual on-site wastewater disposal systems. * * *
* * *
(2) Nothing in this chapter shall preclude a * * * professional engineer from providing services relating to the design, construction or installation of an individual on-site wastewater disposal system to comply with this chapter. Except * * * as otherwise required by subsection (4) of this section, a * * * professional engineer shall notify the department in writing of those services being provided. * * * If a professional engineer designs, constructs or installs or directly supervises the construction or installation of a design-based individual on-site wastewater disposal system consistent with this chapter, stamps the appropriate documentation with the professional engineer's seal, the department shall approve the design, construction or installation of the system, if requested. Professional engineers engaging in the design, construction or installation of individual on-site wastewater disposal systems shall not require certification under this chapter.
(3) To assure the effective and efficient administration of this chapter, the board shall adopt rules governing the design, construction or installation, operation and maintenance of individual on-site wastewater disposal systems, including rules concerning the:
(a) Review and approval of individual on-site wastewater disposal systems in accordance with Section 41-67-6;
(b) Certification of installers of individual on-site wastewater disposal systems and persons engaging in the removal and disposal of the sludge and liquid waste from those systems; and
(c) Registration and requirements for testing and listing of manufacturers of aerobic systems.
* * *
(4) In addition, the board shall adopt rules establishing performance standards for individual on-site wastewater disposal systems for single family residential generators and rules concerning the operation and maintenance of individual on-site wastewater disposal systems designed to meet those standards. The performance standards shall be consistent with the federal Clean Water Act, maintaining the wastes on the property of the generator and protection of the public health. Rules for the operation and maintenance of individual on-site wastewater disposal systems designed to meet performance standards shall include rules concerning the following:
(a) A standard application form and requirements for supporting documentation;
(b) Application review;
(c) Approval or denial of authorization for proposed systems;
(d) Requirements, as deemed appropriate by the board, for annual renewal of authorization;
(e) Enforcement of the requirements and conditions of authorization; and
(f) Inspection, monitoring, sampling and reporting on the performance of the system.
Any system proposed for authorization in accordance with performance standards must be designed and certified by a professional engineer registered in the State of Mississippi and must be authorized by the board before installation.
(5) To the extent practicable, all rules and regulations adopted under this chapter shall give maximum flexibility to persons installing individual on-site wastewater disposal systems and a maximum number of options consistent with the federal Clean Water Act, consistent with maintaining the wastes on the property of the generator and consistent with protection of the public health. In addition, all rules and regulations, to the extent practicable, shall encourage the use of economically feasible systems, including alternative techniques and technologies for individual on-site wastewater disposal.
(6) All regulations shall be applied uniformly in all areas of the state and shall take into consideration and make provision for different types of soil in the state when performing soil and site evaluations.
* * *
SECTION 4. Section 41-67-5, Mississippi Code of 1972, is amended as follows:
41-67-5. (1) No owner, lessee or developer shall construct or place any mobile, modular or permanently constructed residence, building or facility, which may require the installation of an individual on-site wastewater disposal system, without having first submitted a notice of intent to the department. Upon receipt of a notice of intent, the department shall provide the owner, lessee or developer with complete information on individual on-site wastewater disposal systems, including, but not limited to, applicable rules and regulations regarding the design, construction, installation, operation and maintenance of individual on-site wastewater disposal systems and known requirements of lending institutions for approval of the systems.
(2) No * * * permanent water service connection shall be provided to any mobile, modular or permanently constructed residence, building or facility unless the owner, lessee or developer shows proof of the submission of the notice of intent required by this section.
(3) The department shall furnish to the county tax assessor or collector, upon request, the name and address of the person submitting a notice of intent and the section, township and range of the lot or tract of land on which the individual on-site wastewater disposal system will be installed.
SECTION 5. Section 41-67-6, Mississippi Code of 1972, is amended as follows:
41-67-6. (1) Within five (5) working days following receipt of the notice of intent and plot plan by an owner, lessee or developer of any lot or tract of land, the department shall conduct a soil and site evaluation, except in cases where a * * * professional engineer provides services relating to the design, construction or installation of an individual on-site wastewater disposal system to comply with this chapter. Within ten (10) additional working days, the department shall make recommendations to the owner, lessee or developer of the type or types of individual on-site wastewater disposal systems suitable for installation on the lot or tract, unless there are conditions requiring further investigation that are revealed in the initial evaluation. In making recommendations on the type or types of individual on-site wastewater disposal systems suitable for installation on a lot or tract, personnel of the department shall use best professional judgment based on rules and regulations adopted by the board, considering the type or types of systems which are installed and functioning on lots or tracts near the subject lot or tract. If existing systems in the surrounding area function properly, systems of that same type shall be approved. To the extent practicable, the recommendations shall give the owner, lessee or developer maximum flexibility and a maximum number of options consistent with the federal Clean Water Act, consistent with maintaining the wastes on the property of the generator and consistent with protection of the public health. The system or systems recommended shall be environmentally sound and cost-effective. The department or a * * * professional engineer shall provide complete information, including all applicable requirements and regulations on all systems recommended. The owner, lessee or developer shall have the right to choose among systems. The department shall provide the owner, lessee or developer with a form that specifies all types of individual on-site wastewater disposal systems that are suitable for installation on the lot or tract and lists all installers of those systems that are certified by the department. Approval of the design, construction or installation of an individual on-site wastewater disposal system by the department is not required * * *. If any property owner, lessee or the owner's or lessee's lending institution requests the department to approve the design, construction or installation of any system on the owner's or lessee's property, the department shall approve the design, construction or installation of that system, as requested, if the system is designed, constructed and installed, as the case may be, in accordance with the rules and regulations of the board. Whenever a person requests approval of an individual on-site wastewater disposal system * * *, the department must approve or disapprove the request within fifteen (15) working days. If the department disapproves the request, the department shall state in writing the reasons for the disapproval. * * * If the department does not respond to the request within fifteen (15) working days, the request for approval of the individual on-site wastewater disposal system shall be deemed approved.
(2) Evaluations and recommendations for a subdivision shall not be subject to the time constraints in this section.
* * *
(3) If the department has been requested to approve the design, construction or installation of an individual on-site wastewater disposal system, an installer may not begin the design, construction or installation of the individual on-site wastewater disposal system, unless the installer notifies the department of the date on which the installer plans to begin work on the system.
(4) A person may not design, construct or install, or cause to be designed, constructed or installed an individual on-site wastewater disposal system that does not comply with this chapter and rules and regulations of the board.
(5) Any person who installs an individual on-site wastewater disposal system shall sign and file with the department an affidavit that the system was installed in compliance with all requirements and regulations applicable to that type of system. If any person or contractor fails to obtain final approval or submit an affidavit of proper installation to the department in the installation of the system, the board, after due notice and hearing, may levy an administrative fine not to exceed One Thousand Dollars ($1,000.00). * * *
* * *
(6) Any provisions of this chapter regarding the department's approval of the design, construction and installation of an individual on-site wastewater disposal system shall not apply to residence, building or facility that is located on a land tract that is two (2) acres or larger.
SECTION 6. Section 41-67-7, Mississippi Code of 1972, is amended as follows:
41-67-7. Individual on-site wastewater disposal systems shall be considered acceptable on lots in areas or subdivisions where prior to the sale of the lots, the following requirements are met:
(a) Individual on-site wastewater disposal systems with underground absorption fields shall be considered acceptable, provided the following requirements are met:
(i) Sewers are not available or feasible;
(ii) The existing disposal systems in the area are functioning satisfactorily;
(iii) Soil types, soil texture, seasonal water tables and other limiting factors are satisfactory for underground absorption; and
(iv) Any private water supply is located at a higher elevation * * * and at least fifty (50) feet from the individual on-site wastewater disposal system and at least one hundred (100) feet from the disposal field of the system.
(b) Except for systems utilizing underground absorption, alternative individual on-site wastewater disposal systems shall be considered acceptable, provided the following requirements are met:
(i) Sewers are not available or feasible; * * *
(ii) The systems meet applicable water quality requirements of the federal Clean Water Act and also requirements of the board and department; and
(iii) Any discharge is confined within the boundaries of the property of the generator.
SECTION 7. Section 41-67-9, Mississippi Code of 1972, is amended as follows:
41-67-9. (1) Existing individual on-site wastewater disposal systems shall be considered acceptable, provided the following requirements are met:
(a) The lot is located in an area or subdivision where individual on-site wastewater disposal systems are considered acceptable under this chapter;
(b) The residence, building or facility has previously been occupied for a period of time deemed by the department necessary to determine the functioning capability of the individual on-site wastewater disposal system;
(c) The system is functioning properly with no evidence that any insufficiently treated effluent is or has been seeping to the surface of the ground and any discharge of treated effluent is confined within the boundaries of the property of the generator; and
(d) If a private water supply well is present, the well is located at a higher elevation than the disposal system and is protected from surface contamination by a concrete slab of a thickness of at least four (4) inches extending at least two (2) feet in all directions from the well casing.
(2) If an existing residential individual on-site wastewater disposal system is malfunctioning, the system should be replaced, where possible, with a system meeting all requirements of this chapter and rules and regulations of the board. If replacement of the existing system is not possible, the existing system shall be repaired to reduce the volume of effluent, to adequately treat the effluent and to the greatest extent possible, to confine the discharge to the property of the generator. If repairs are made to significantly upgrade the existing individual on-site wastewater disposal system, the department shall approve the system, if requested.
SECTION 8. Section 41-67-10, Mississippi Code of 1972, is amended as follows:
41-67-10. * * * Aerobic treatment systems may be installed only if they have been tested and are listed by a third-party certifying program. * * * Aerobic treatment systems shall be in compliance with standards for a Class I system as defined by the most current revision of American National Standards Institute/National Sanitation Foundation (ANSI/NSF) International Standard Number 40, which are incorporated by reference. An approved third-party certifying program shall comply with the following provisions for systems which it has certified to be installed in Mississippi:
(a) Be accredited by the American National Standards Institute;
(b) Have established procedures which send representatives to distributors in Mississippi on a recurring basis to conduct evaluations to assure that distributors of certified aerobic treatment systems are providing proper maintenance, have sufficient replacement parts available and are maintaining service records;
(c) Notify the department of the results of monitoring visits to manufacturers and distributors within sixty (60) days of the conclusion of the monitoring; and
(d) Submit completion reports on testing and any other information as the department may require for its review.
* * *
SECTION 9. Section 41-67-11, Mississippi Code of 1972, is amended as follows:
41-67-11. (1) Temporary individual on-site wastewater disposal systems may be approved in * * * otherwise unapprovable areas * * * only after a contract has been awarded * * * for the construction of municipal or community sewers that upon completion will adequately serve the property. Temporary individual on-site wastewater disposal systems shall only be approved under the following conditions:
(a) When the municipal or community sewers shall not be completed and available for use within six (6) months, a complete individual on-site wastewater disposal system complying with all requirements of the board may be installed. * * * Upon completion of the sewer construction, all systems shall be abandoned and all residences, buildings or facilities connected to the sewer.
(b) When the public sewers shall be available and ready for use within a period not to exceed six (6) months, or where a minor extension is to be made to a municipal system by the municipality and no contract is to be awarded, an individual on-site wastewater disposal system with a minimum capacity of three hundred (300) gallons and at least sixty percent (60%) of the required disposal field may be installed. The board shall not approve a temporary system under this subsection unless the professional engineer designing the sewer system has certified to the board in writing that the public sewer or extension shall be completed within six (6) months, and the owner of the temporary system has certified in writing that connection to the public sewer shall be made as soon as it becomes available.
(2) The board may approve the installation of sewage holding tanks in districts created under Sections 19-5-151 through 19-5-207 for the purpose of providing sewage services. The district shall be required to maintain or provide for the maintenance of those holding tanks. The board shall require that residences be connected to a municipal or community sewage system when that system is available and ready to use.
SECTION 10. Section 41-67-15, Mississippi Code of 1972, is amended as follows:
41-67-15. Nothing in this chapter shall limit the authority of a municipality or board of supervisors to adopt similar ordinances which may be, in whole or in part, more restrictive than this chapter, and in those cases the more restrictive ordinances will govern. * * *
SECTION 11. Section 41-67-25, Mississippi Code of 1972, is amended as follows:
41-67-25. (1) A person may not operate as an installer of individual on-site wastewater disposal systems unless that person is * * * certified by the board. A person who installs an individual on-site wastewater disposal system on his own property for his primary residence is not considered an installer for purposes of this subsection.
(2) An installer of aerobic treatment plants or subsurface drip disposal systems must be a factory-trained and authorized representative. The manufacturer must furnish documentation to the department certifying the satisfactory completion of factory training and the establishment of the installer as an authorized manufacturer's representative.
(3) The board shall issue a certification to an installer if the installer:
(a) Completes an application form that complies with this chapter and rules adopted under this chapter;
(b) Satisfactorily completes the training program for installation and maintenance provided by the department;
(c) Pays the annual certification fee * * *; and
(d) Provides proof of having a valid general business liability insurance policy in effect with liability limits of at least Fifty Thousand Dollars ($50,000.00) per occurrence and at least One Hundred Thousand Dollars ($100,000.00) in total aggregate amount.
(4) Each installer shall furnish proof of certification to a property owner, lessee, the owner's representative or occupant of the property on which an individual on-site wastewater disposal system is to be designed, constructed, repaired or installed by that installer and to the department or its authorized representative, if requested.
(5) The department shall provide for annual renewal of certifications.
(6) (a) An installer's certification may be suspended or revoked by the board after notice and hearing if the installer violates this chapter or any rule or regulation adopted under this chapter.
(b) The installer may appeal a suspension or revocation under this section as provided by law.
(7) The department semiannually shall disseminate to the public an official list of certified installers and provide to county health departments a monthly update of the list.
* * *
SECTION 12. Section 41-67-27, Mississippi Code of 1972, is amended as follows:
41-67-27. It is unlawful for a manufacturer of an individual on-site wastewater disposal system * * * to operate a business in or to do business in the State of Mississippi without holding a valid * * * registration issued by the department.
SECTION 13. Section 41-67-28, Mississippi Code of 1972, is amended as follows:
41-67-28. (1) Except as otherwise provided in this chapter, any person who shall knowingly violate this chapter or any rule or regulation or written order of the board in pursuance thereof is, upon conviction, guilty of a misdemeanor and shall be punished as provided in Section 41-3-59.
(2) Each day of a continuing violation is a separate violation.
(3) (a) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases an individual on-site wastewater disposal system and suffers any ascertainable loss of money or property, real or personal, may bring an action at law in the court having jurisdiction in the county in which the installer or manufacturer has the principal place of business, where the act allegedly occurred, to recover any loss of money or damages for the loss of any property resulting from any of the following:
(i) Improper installation of an individual on-site wastewater disposal system due to faulty workmanship;
(ii) Failure of an individual on-site wastewater disposal system to operate properly due to failure to install the system in accordance with any requirements of the manufacturer or in compliance with any rules and regulations of the board; or
(iii) Failure of an individual on-site wastewater disposal system to operate properly due to defective design or construction.
(b) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.
(4) A person who violates this chapter thereby causing a discharge off the property of the generator shall be liable to the party aggrieved or damaged by that violation for the actual damages and additional punitive damages equal to a maximum of twenty-five percent (25%) of the actual damages proven by the aggrieved party, to be taxed by the court where the suit is heard on an original action, by appeal or otherwise and recovered by a suit at law in any court of competent jurisdiction. In addition, the court may award the prevailing party reasonable attorney's fees and court costs. Before filing suit, the party aggrieved or damaged must give thirty (30) days' written notice of its intent to file suit to the alleged violator.
* * *
SECTION 14. Section 41-67-31, Mississippi Code of 1972, is amended as follows:
41-67-31. Sections 41-67-1 through 41-67-29 * * * shall stand repealed on July 1, 2013.
SECTION 15. Section 41-67-33, Mississippi Code of 1972, which provides for procedures for conducting reviews requested by persons aggrieved by a decision not to approve a wastewater disposal system, is repealed.
SECTION 16. Section 41-67-35, Mississippi Code of 1972, which provides for the certification of maintenance providers, is repealed.
SECTION 17. Section 41-67-37, Mississippi Code of 1972, which provides for the certification of professional evaluators, is repealed.
SECTION 18. Section 41-67-39, Mississippi Code of 1972, which requires a license for a person operating as a pumper removing and disposing of septic tank sludge, is repealed.
SECTION 19. This act shall take effect and be in force from and after July 1, 2012.
