SENATE AMENDED PRIOR PRINTER'S NOS. 54, 287, 1343, PRINTER'S NO. 2259 2053, 2079
No. 52 Session of 1989
INTRODUCED BY GEORGE, FEE, WOZNIAK, LUCYK, HAYDEN, LEVDANSKY, TRELLO, HALUSKA, HERMAN, CAWLEY, MORRIS, ROBINSON, VAN HORNE, DIETTERICK, LAUGHLIN, STABACK, DALEY, BATTISTO, ANGSTADT, COLAIZZO, CLYMER, WASS, TIGUE, BELFANTI, BURD, DISTLER, MERRY, GIGLIOTTI, CARLSON, MELIO, SERAFINI, BELARDI, BISHOP, VEON, SAURMAN AND BROUJOS, JANUARY 18, 1989
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, JUNE 28, 1989
AN ACT 1 Amending the act of January 24, 1966 (1965 P.L.1535, No.537), 2 entitled, as amended, "An act providing for the planning and 3 regulation of community sewage systems and individual sewage 4 systems; requiring municipalities to submit plans for systems 5 in their jurisdiction; authorizing grants; requiring permits 6 for persons installing such systems; requiring disclosure 7 statements in certain land sale contracts; authorizing the 8 Department of Environmental Resources to adopt and administer 9 rules, regulations, standards and procedures; creating an 10 advisory committee; providing remedies and prescribing 11 penalties," further providing for the Advisory Committee; 12 further providing for the approval of certain plans, for 13 permits, and for the powers and duties of local agencies, the 14 certification board, the Environmental Quality Board and the 15 department; and reestablishing the State Board for 16 Certification of Sewage Enforcement Officers pursuant to the 17 Sunset Act. 18 The General Assembly of the Commonwealth of Pennsylvania 19 hereby enacts as follows: 20 SECTION 1. SECTION 2 OF THE ACT OF JANUARY 24, 1966 (1965 <-- 21 P.L.1535, NO.537), KNOWN AS THE PENNSYLVANIA SEWAGE FACILITIES 22 ACT, AMENDED JULY 22, 1974 (P.L.621, NO.208), IS AMENDED BY
1 ADDING A DEFINITION TO READ: 2 SECTION 2. DEFINITIONS.--AS USED IN THIS ACT: 3 * * * 4 "RESIDENTIAL SUBDIVISION PLAN" MEANS A SUBDIVISION IN WHICH 5 AT LEAST TWO-THIRDS OF THE PROPOSED DAILY SEWAGE FLOWS WILL BE 6 GENERATED BY RESIDENTIAL USES. 7 * * * 8 Section 1 2. Sections 4, 5(e) and 7(a) and (b)(7) of the act <-- 9 of January 24, 1966 (1965 P.L.1535, No.537), known as the <-- 10 Pennsylvania Sewage Facilities Act, amended July 22, 1974 11 (P.L.621, No.208), are amended to read: 12 Section 4. Advisory Committee.--(A) An advisory committee <-- 13 shall be appointed within three months of the passage of this 14 act and biennially thereafter, membership of which shall be 15 composed of one representative from the following organizations, 16 the name of said representative to be submitted to the secretary 17 within ten days of receipt of request for same: Pennsylvania 18 State Association of Township Supervisors, Pennsylvania State 19 Association of Boroughs, Pennsylvania League of Cities, 20 Pennsylvania State Association of Township Commissioners, 21 Pennsylvania State Association of County Commissioners, 22 Pennsylvania Association of Plumbing, Heating, Cooling, 23 Contractors, Inc., Pennsylvania Society of Professional 24 Engineers, Mortgage Bankers' Association, Pennsylvania Builders 25 Association, Pennsylvania Association of Realtors, PENNSYLVANIA <-- 26 LANDOWNERS ASSOCIATION, Pennsylvania Society of Architects, 27 County Health Departments, Pennsylvania State University, 28 Pennsylvania Municipal Authorities Association, Pennsylvania 29 Section of the American Water Works Association, Water Pollution 30 Association of Pennsylvania, American Society of Civil 19890H0052B2259 - 2 -
1 Engineers, Pennsylvania Environmental Health Association, 2 Farmers Home Administration, Consulting Engineers Council of 3 Pennsylvania, National Association of Water Companies, 4 Pennsylvania Vacation Land Developers Association, United States 5 Department of Housing and Urban Development, Pennsylvania 6 Department of Commerce, Pennsylvania Department of Community 7 Affairs, Office of State Planning and Development, Pennsylvania 8 Bar Association, and such other organizations having a direct 9 interest in the area of water and sewage as the secretary deems 10 necessary. 11 (B) The advisory committee shall have the opportunity to <-- 12 review proposed rules, regulations, standards and procedures and 13 shall review existing rules, regulations, standards and 14 procedures of the department pursuant to this act. 15 (C) The recommendations of the advisory committee shall be <-- 16 submitted to the secretary who shall give due consideration to 17 the same. 18 Section 5. Official Plans.--* * * 19 (e) The department is hereby authorized to approve or 20 disapprove official plans for sewage systems submitted in 21 accordance with this act within one year of date of submission 22 and revisions of official plans within such lesser time as the 23 regulations shall stipulate, except that the department shall 24 approve or disapprove revisions constituting residential 25 subdivision plans within ninety days of the date of A COMPLETE <-- 26 submission, for the period of one year from the effective date 27 of this amendatory act, and within sixty days of the date of A <-- 28 COMPLETE submission thereafter. THE DEPARTMENT SHALL DETERMINE <-- 29 IF A SUBMISSION IS COMPLETE WITHIN TEN (10) WORKING DAYS OF ITS 30 RECEIPT. 19890H0052B2259 - 3 -
1 * * * 2 Section 7. Permits.--(a) No person shall install, 3 construct, or request bid proposals for construction, or alter 4 an individual sewage system or community sewage system or 5 construct, or request bid proposals for construction, or install 6 or occupy any building or structure for which an individual 7 sewage system or community sewage system is to be installed 8 without first obtaining a permit indicating that the site and 9 the plans and specifications of such system are in compliance 10 with the provisions of this act and the standards adopted 11 pursuant to this act. No permit may be issued by the local 12 agency in those cases where a permit from the department is 13 required pursuant to the act of June 22, 1937 (P.L.1987, 14 No.394), known as "The Clean Streams Law," as amended, or [where <-- 15 the department pursuant to its rules and regulations, determines 16 that such permit is not necessary either] for a rural residence <-- 17 [or for the protection of the public health]. A municipality <-- 18 may, however, by ordinance require a permit for a rural 19 residence. In such a case the local agency administering the 20 provisions of this act within the municipality shall require a 21 permit for a rural residence. A permit for a rural residence 22 shall not be necessary unless the local municipality requires it 23 by ordinance. Except where a municipality requires a permit by 24 ordinance, the owner of any rural residence shall install, as a 25 minimum, a septic tank or tanks with a capacity of not less than 26 nine hundred gallons with a drain field of one thousand two 27 hundred square feet, and drain field trench lines at a minimum 28 of three feet wide, two feet deep with one foot of aggregate 29 below one foot of soil cover, which shall be at least one 30 hundred fifty feet from any property line, one hundred-year 19890H0052B2259 - 4 -
1 flood plain, or any river, stream, creek, impoundment, well, 2 water course, storm sewer, lake, dammed water, pond or spring. 3 However, it is expressly understood that the owner and the 4 purchaser of a parcel which qualifies as a rural residence 5 recognize that soil-testing procedures were not necessary. The 6 owner and purchaser who installs a system under the provisions 7 of this section shall be deemed to release and hold harmless the 8 department, the local permitting agency, agent and all township 9 officials from any responsibility or liability for the 10 functioning of the septic system installed. The property owner 11 shall be liable for any contamination or pollution which occurs 12 as the result of the malfunction of a septic system installed in 13 accordance with the provisions of this subsection. It is the 14 sole responsibility of the property owner to correct any system 15 which is shown to contaminate ground or surface water. The local 16 permitting agent shall certify that the system meets the above 17 stated requirements. The cost incurred for the certification 18 inspection by the local permitting agency shall be borne by the 19 property owner. The provisions of section 7.1 relating to 20 certain notices in contracts for the sale of land shall apply to 21 all property which is subject to this section. EXCEPT WHERE A <-- 22 LOCAL AGENCY REQUIRES A PERMIT BY ORDINANCE, NO PERMIT SHALL BE 23 REQUIRED FOR THE INSTALLATION OF AN INDIVIDUAL ON-LOT SEWAGE 24 SYSTEM FOR A RESIDENTIAL STRUCTURE OCCUPIED OR INTENDED TO BE 25 OCCUPIED BY NOT MORE THAN TWO FAMILIES, ONE OF WHOM IS THE 26 PROPERTY OWNER, ON A CONTIGUOUS TRACT OF LAND TEN ACRES OR MORE 27 IF THE OWNER OF THE PROPERTY WAS THE OWNER OF RECORD AS OF 28 JANUARY 10, 1987. 29 (b) * * * 30 (7) If construction or installation of an individual sewage 19890H0052B2259 - 5 -
1 system or community sewage system and of any building or 2 structure for which such system is to be installed has not 3 commenced within [two] three years after the issuance of a 4 permit for such system, the said permit shall expire, and a new 5 permit shall be obtained prior to the commencement of said 6 construction or installation. 7 * * * 8 Section 2 3. Section 8(b) of the act is amended by adding a <-- 9 paragraph and the section is amended by adding a subsection to 10 read: 11 Section 8. Powers and Duties of Local Agencies.--* * * 12 (b) Each local agency in addition to the powers and duties 13 conferred upon it by existing law shall have the power and the 14 duty: 15 * * * 16 (1.1) To have at least one alternate sewage enforcement 17 officer authorized AS AUTHORIZED BY THE LOCAL AGENCY to work in <-- 18 the municipality or municipalities of the local agency. 19 * * * 20 (c) Sewage enforcement officers employed by local agencies 21 in accordance with this act, in performing their duties as 22 required under this act, may accept prior testing data and 23 information obtained by a previous sewage enforcement officer, 24 provided that the site and prior testing meets all of the 25 following criteria and the sewage enforcement officer certifies 26 the same to the local agency: 27 (1) The soils testing performed on the property in question 28 has not been cited in a revocation, suspension or other 29 agreement to surrender certification which indicates violations 30 of soil testing procedures by the previous sewage enforcement 19890H0052B2259 - 6 -
1 officer. 2 (2) The exact location of the test to be used for issuance 3 of a permit must be verifiable by at least one of the following 4 methods: 5 (i) Location of the test pit and percolation hole remnants 6 on the lot by the current sewage enforcement officer. 7 (ii) The existence of recorded measurements from at least 8 two permanent landmarks on the property in question establishing 9 the original test location. 10 (iii) A scale drawing of the lot or property in question 11 indicating the location of the tests by reference to at least 12 two permanent landmarks. 13 (iv) Identification of the exact location of the tests by 14 the prior sewage enforcement officer, provided that his or her 15 certification has not been revoked, suspended or voluntarily 16 surrendered to the department. 17 (3) Verification that the percolation test and soils 18 evaluation was conducted in accordance with the applicable 19 regulations. 20 (4) Soils description and percolation test data are 21 available and recorded on the prescribed form, or its 22 equivalent, in sufficient quantity and quality to be interpreted 23 by others. 24 (5) The soil probes were conducted within ten feet of the 25 proposed absorption area. 26 (6) The percolation test on the lot was performed on the 27 site of the proposed absorption area. 28 (7) The person who originally observed or conducted the 29 testing was certified under the current certification 30 requirements of this act. 19890H0052B2259 - 7 -
1 (8) No inaccuracies or falsifications of the test data are 2 apparent or identifiable. 3 (9) No changes to the site have occurred since the time of 4 the original testing. 5 Section 3 4. Section 9 of the act, amended December 10, 1974 <-- 6 (P.L.856, No.288), is amended to read: 7 Section 9. Powers and Duties of the Environmental Quality 8 Board.--(a) The Environmental Quality Board shall have the 9 power and its duty shall be to adopt such rules and regulations 10 of the department, applicable throughout the Commonwealth, as 11 shall be necessary for the implementation of the provisions of 12 this act. Such rules and regulations shall establish standards 13 for the construction, installation, alteration, maintenance and 14 operation of individual sewage systems and community sewage 15 systems and of sewage treatment plants in such systems, take 16 cognizance of latest technological developments in the field of 17 individual sewage systems, including adoption of standards 18 providing for use of alternate individual sewage systems, 19 standards for enforcement programs of local agencies and for the 20 certification of personnel employed by local agencies to 21 administer the provisions of this act, standards for the 22 preparation, review and acceptance of official plans, and 23 requirements for the disbursement of State and Federal funds to 24 municipalities and local agencies for planning, personnel and 25 construction of sewage disposal systems. Such rules and 26 regulations shall be adopted pursuant to the act of July 31, 27 1968 (P.L.769, No.240), known as the "Commonwealth Documents 28 Law," upon such notice and after such public hearings as the 29 board deems appropriate. The rules and regulations adopted by 30 the board under this section shall supersede any ordinance, 19890H0052B2259 - 8 -
1 rules or regulations of local agencies which are not in 2 conformity with the rules and regulations of the board. 3 (b) Within one year of the effective date of this amendatory 4 act, the board shall promulgate proposed rules and regulations 5 that govern the ability of local agencies to issue permits for 6 the construction of individual residential sewage systems where 7 soil mottling is present. The rules and regulations shall 8 include, but not be limited to, the following: 9 (1) A requirement that a local agency perform a percolation 10 test when one is requested in writing by the owner of the 11 property, at the owner's expense, where the local agency 12 determines soil mottling is present. 13 (2) Where the sole reason for a property not meeting the 14 requirements for the installation of an individual residential 15 sewage system is the presence of soil mottling and where no 16 other approved alternate sewage systems can be permitted on the 17 property, the local agency may still SHALL issue a permit for an <-- 18 individual sewage system where the property owner meets all of 19 the following conditions: 20 (i) The property owner demonstrates that at least three 21 individual residential sewage systems in close proximity to the 22 applicant's property have been functioning without pollutional 23 discharges to surface or groundwater for five years or more and 24 have soil conditions similar to the applicant's property as 25 verified by a qualified soil scientist. 26 (ii) The property owner proposes an individual residential 27 sewage system that, in the opinion of a registered professional 28 engineer, can be expected to function in the soils on the 29 property without pollutional discharges to surface or 30 groundwater. 19890H0052B2259 - 9 -
1 (iii) The property owner provides evidence of financial 2 assurance to the local agency in an amount equal to the cost of 3 replacement of the individual residential sewage system proposed 4 and the reasonably anticipated cost of remedial measures to 5 cleanup contaminated groundwater and to replace any contaminated 6 water supplies. In no case shall the local agency approve 7 financial assurance in an amount less than twenty thousand 8 dollars ($20,000) for each year up to three years. The township 9 may require an additional two years financial assurance. The 10 local agency may waive the financial assurance requirement after 11 five years if there is no evidence of pollutional discharge to 12 surface or groundwater. 13 (iv) The property owner produces evidence of a clause in the 14 deed to the property that clearly indicates soil mottling is 15 present on the property and that an individual residential 16 sewage system meeting the requirements of this section was 17 installed on the property. 18 (c) The Environmental Quality Board shall promulgate rules 19 and regulations that are to establish the specific types of 20 financial assurance that are acceptable under this section, the 21 procedures local agencies are to follow in forfeiting the 22 financial assurance and the type of additional financial 23 assurance required if a system approved under this section is 24 replaced. The financial assurances may include an option where 25 the local agency may offer, for a fee, financial assurance for 26 systems installed under this section up to the amount 27 established in subsection (b)(2)(iii). 28 (d) The local agency shall not be held liable for the 29 performance of an individual residential sewage system approved 30 under this section, except where financial assurance is provided 19890H0052B2259 - 10 -
1 by the local agency under subsection (c). 2 Section 4 5. Sections 10 and 11 of the act, amended July 22, <-- 3 1974 (P.L.621, No.208), are amended to read: 4 Section 10. Powers and Duties of the Department of 5 Environmental Resources.--The department shall have the power 6 and its duty shall be: 7 (1) To order municipalities to submit official plans and 8 revisions thereto within such time and under such conditions as 9 the rules and regulations promulgated under this act may 10 provide. 11 (2) To approve or disapprove official plans and revisions 12 thereto. 13 (3) To order the implementation of official plans and 14 revisions thereto. 15 (4) To administer grants and reimbursements to local 16 agencies as provided by section 6 of this act. 17 (5) To review the performance of local agencies in the 18 administration of section 7 of this act. 19 (6) To cooperate with local agencies, the advisory committee 20 and industry in studying and evaluating new methods of sewage 21 disposal. For the purpose of investigating innovative or 22 alternative on-lot sewage systems, the department may enter into 23 contracts with private entities. Such contracts shall be funded 24 from funds specifically appropriated by the General Assembly for 25 this purpose. 26 (7) To order a local agency to undertake actions deemed by 27 the department necessary to administer effectively section 7 of 28 this act in conformance with the rules and regulations of the 29 department. 30 (8) To enter upon lands and make inspections and to require 19890H0052B2259 - 11 -
1 the submission of papers, books and records by local agencies 2 for the purposes set forth in this act. 3 (9) To train sewage enforcement officers and to require 4 sewage enforcement officers to participate in training. Such 5 training shall be funded from funds specifically appropriated by 6 the General Assembly for this purpose. 7 (10) To revoke or suspend the certification of sewage 8 enforcement officers for cause, or to reinstate same, in 9 accordance with the rules and regulations of the department: 10 Provided, however, That such actions of the department shall 11 become effective only after notice and an opportunity for 12 hearing before the certification board has been given. 13 (11) To develop a list of firms or agencies that provide 14 testing services for evaluating gradation specifications of sand 15 for use in elevated sand mound on lot disposal systems. A 16 permittee that is the sand supplier for an elevated sand mound 17 shall certify in writing that sand used in these systems meets 18 the requirements established by the department. 19 Section 11. Certification Board.--(a) There is hereby 20 created within the department a State Board for Certification of 21 Sewage Enforcement Officers. The board shall consist of five 22 members to be appointed by the secretary. One member shall be a 23 representative of local government; one member shall be a sewage 24 enforcement officer certified under the provisions of this act; 25 one member shall be a representative of the engineering 26 profession; and two additional members shall be chosen from a 27 list of nominees submitted to the secretary by the advisory 28 committee. The advisory committee shall designate a minimum of 29 three nominees for the latter two positions. The original 30 appointed members of the board in the order listed above shall 19890H0052B2259 - 12 -
1 hold office for one, two, three, three and four years, 2 respectively. Thereafter, each appointment shall be for a period 3 of four years' duration. The secretary may reappoint board 4 members for successive terms. Members of the board shall remain 5 in office until a successor is appointed and qualified. If 6 vacancies occur prior to completion of a term, the secretary 7 shall appoint another member in accordance with this section to 8 fill the unexpired term. 9 The secretary, or his representative, shall call the first 10 meeting of the board at which time a chairman of the board shall 11 be elected. Thereafter, the chairman shall be elected annually. 12 Three members of the board shall constitute a quorum. Meetings 13 may be called by the chairman as needed to conduct the business 14 of the board. 15 The members of the board shall receive no compensation for 16 their services but shall be reimbursed for actual and necessary 17 expenses incurred in the performance of their duties. 18 (b) The board shall have the power and its duty shall be, in 19 accordance with the rules and regulations of the department, to: 20 (1) Review and pass upon applications for certification of 21 sewage enforcement officers within thirty days of the receipt of 22 the test results from the testing contractor. If the board does 23 not meet within this time period, the applicants who have 24 achieved the necessary passing score on the certification 25 examination and who are not in violation or restrained by any 26 department regulation from certification shall be deemed to be 27 certified. 28 (2) Administer such examinations as prepared by the 29 department, as may be deemed necessary to determine the fitness 30 of candidates for certification. Such examinations shall be held 19890H0052B2259 - 13 -
1 [at frequent intervals and at least annually to afford all 2 applicants an equal opportunity for taking such examinations] no 3 less than four times in each calendar year. The board shall 4 determine and shall announce, in sufficient time, the location 5 and time for such examinations, except that the board shall 6 allow the department to schedule special "walk-in" examinations 7 when a local agency demonstrates an immediate need to obtain a 8 sewage enforcement officer. During the first year of this act, 9 no fees will be charged for said examinations. During the second 10 and subsequent years, the board is hereby authorized to collect 11 a fee of ten dollars ($10) from each applicant. 12 (3) Hold hearings and issue adjudications under the 13 provisions of the act of June 4, 1945 (P.L.1388, No.442), known 14 as the "Administrative Agency Law," on any revocation, 15 suspension or reinstatement of certification by the department: 16 Provided, That the filing of an appeal with the board shall not 17 operate as an automatic supersedeas of the action of the board <-- 18 DEPARTMENT. The provisions of section 1921-A of The <-- 19 Administrative Code notwithstanding, such actions of the 20 department shall not be appealable to the Environmental Hearing 21 Board. 22 (4) Consider for renewal biennially certificates issued 23 under this section, and collect a fee of five dollars ($5) or 24 such reasonable fee as the department shall establish by 25 regulation from each certificate holder for such renewal. 26 (5) Compile and keep current a register showing the names 27 and addresses of certified sewage enforcement officers. Copies 28 of this register shall be furnished on request for the 29 department and for municipalities and upon payment of such 30 reasonable fee for all others, as the department shall 19890H0052B2259 - 14 -
1 establish. 2 Section 5 6. The act is amended by adding a section to read: <-- 3 Section 20.1. Sunset Provisions.--(a) The State Board for 4 Certification of Sewage Enforcement Officers, scheduled for 5 termination under section 6 of the act of December 22, 1981 6 (P.L.508, No.142), known as the "Sunset Act," is hereby 7 reestablished. 8 (b) The board is subject to evaluation, review and 9 termination within the time and in the manner provided in the 10 "Sunset Act." 11 (c) This section, with respect to the board, constitutes the 12 legislation required to reestablish that board under the "Sunset 13 Act." 14 Section 6 7. The provisions of section 1 (section 7(a)) of <-- 15 this act shall not affect any right to a rural residence 16 exemption from permit requirements imposed by a municipality 17 which was legally established prior to the effective date of 18 this act. 19 Section 7. Three years after enactment, the Joint Air and <-- 20 Water Pollution Control and Conservation Committee shall report 21 to the General Assembly its findings concerning the performance 22 of those systems installed on rural residences subsequent to the 23 effective date of this act. 24 Section 8. This act shall take effect immediately. 25 SECTION 8. THIS ACT SHALL TAKE EFFECT AS FOLLOWS: <-- 26 (1) THE AMENDMENT TO SECTION 5(E) OF THE ACT SHALL TAKE 27 EFFECT IN 90 DAYS. 28 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT 29 IMMEDIATELY. L27L35DGS/19890H0052B2259 - 15 -