[26 Pa.B. 5347]
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Subchapter C. ADMINISTRATION OF
PERMITTING REQUIREMENTS§ 72.41. Powers and duties of sewage enforcement officers.
* * * * * (b) A sewage enforcement officer shall issue permits only within the jurisdiction of the local agency in which the sewage enforcement officer is employed. When a sewage enforcement officer encounters a conflict of interest as specified in subsections (f)--(i), the local agency shall employ a certified sewage enforcement officer not having a conflict of interest regarding the system or lot.
(c) The local agency shall notify the sewage enforcement officer and the Department in writing of the specific conditions of employment, including, but not limited to, the following:
(1) The geographic boundaries.
(2) The specific permit applications to be processed.
(3) The rate of compensation to the sewage enforcement officer.
(4) The duration of employment.
(d) A sewage enforcement officer shall only accept payment from the local agency for services performed in conjunction with administration of the act.
(e) A sewage enforcement officer shall only accept application or other processing fees for the local agency under the following conditions:
(1) The fee is in the amount prescribed by the local agency's adopted fee schedule.
(2) The fee is rendered in accordance with the local agency's adopted receipt system as required by § 72.42(g) (relating to powers and duties of local agencies).
(3) The sewage enforcement officer has received written direction from the local agency to accept these fees on behalf of the local agency.
(f) A sewage enforcement officer may advise an applicant regarding available options for the planning, design and construction of an individual or community onlot disposal system, but may not select the final system design, as specified in subsection (g).
(g) A sewage enforcement officer may not plan, design, construct, sell or install an individual or community onlot sewage system within the geographic boundaries of the sewage enforcement officer's authority, as specified by the local agency.
(h) A sewage enforcement officer may not conduct a test, issue a permit, participate in the official processing of an application or official review of a planning module for an individual or community onlot sewage system in which the sewage enforcement officer, a relative of the sewage enforcement officer, a business associate of the sewage enforcement officer or an employer of the sewage enforcement officer, other than the local agency, has a financial interest.
(i) For purposes of subsection (h), a financial interest includes full or partial ownership, agreement or option to purchase, leasehold, mortgage or another financial or proprietary interest in; or serving as an officer, director, employe, contractor, consultant or another legal or fiduciary representative of a corporation, partnership, joint venture or other legal entity which has a proprietary interest in one or more of the following:
(1) One or more lots to be served by the system.
(2) The development or sale of the lots to be served by the system.
(3) A contract, either written or oral, to perform a service in the development of one or more of the lots to be served by the system. The service may be before or after the fact of development and may include professional as well as other services.
(4) A contract, either written or oral, to sell, plan, design, construct, install or provide materials or component parts for the system.
(j) Prior to issuing a permit, the sewage enforcement officer shall conduct personally, observe or otherwise confirm in a manner approved by the Department tests used to determine the suitability of a site for an individual or community onlot sewage system. A sewage enforcement officer shall accept testing conducted by a prior sewage enforcement officer for the local agency if the site, data and prior testing meet the criteria specified in section 8(c) of the act (35 P. S. § 750.8(c)). When a sewage enforcement officer accepts testing by a prior officer, a copy of the Form ER-BWQ-290, Appendix B or another form as may be specified by the Department, shall be attached to each copy of the permit application.
(k) Prior to issuing a permit, the sewage enforcement officer shall confirm that the application is complete and that the proposed system design is in compliance with the requirements of the act and this part.
(l) The sewage enforcement officer shall give timely written notice to applicants or permittees of approval, denial or revocation of a permit under this chapter.
(m) The sewage enforcement officer shall advise the local agency of a violation of the act or this part, known to the sewage enforcement officer, which occurs within the local agency's jurisdiction.
(n) The sewage enforcement officer shall advise the local agency of its responsibility to restrain a violation of the act or this part and shall independently take action within the scope of his authority necessary to restrain or correct the violation.
(o) The sewage enforcement officer shall submit the Department's copy of the completed Application For Sewage Disposal System, with necessary attachments, within 7 days of acting upon the application.
§ 72.42. Powers and duties of local agencies.
(a) The local agency has the power and duty to:
(1) Employ sewage enforcement officers to administer section 7 of the act (35 P. S. § 750.7) and this part.
(2) Employ other technical and administrative personnel necessary to support the activities of the sewage enforcement officer.
(3) Set rates of compensation for the sewage enforcement officer and other employes.
(4) Maintain offices and purchase equipment and supplies necessary for the administration of the act.
(5) Establish a schedule of fees for the processing of applications and other services provided by the local agency. This fee schedule may establish different charges for various activities and types of systems consistent with the administrative costs of reviewing applications, conducting necessary tests and investigations and supervising the installation of the system.
(6) Collect the appropriate fees as designated in the established fee schedule. The local agency shall maintain records of income, expenses and transactions of the local agency in a manner consistent with accepted accounting practices.
(7) Establish a system of receipts for monetary transactions. The receipt system shall provide to the local agency and to the applicant a record of the amount tendered to the local agency and the specific purpose of the transaction.
(8) Adopt and maintain standards and procedures for applications and permits for individual and community onlot sewage systems identical to those of the Department, as contained in this part.
(9) Adopt and maintain other regulations the local agency deems necessary for the administration and enforcement of section 7 of the act (35 P. S. § 750.7) as long as they are consistent with the act and this part.
(10) Submit reports and data to the Department as required by this part or an order of the Department.
(11) Submit to the Department annually the name and address of its certified sewage enforcement officer and alternate sewage enforcement officer.
(12) Make or cause to be made inspections and tests necessary to carry out section 7 of the act. For this purpose, the authorized representatives of the local agency have the right to enter upon lands.
(13) Proceed under sections 12, 14 and 15 of the act (35 P. S. §§ 750.12, 750.14 and 750.15) to restrain violations of the act and this part, and to abate nuisances in accordance with existing statutes, or as defined in the act.
(14) Notify the Department in writing within 15 days of a change in the sewage enforcement officer or his address.
(15) Cease issuing permits in designated areas when ordered to do so by the Department under section 10(7) of the act (35 P. S. § 750.10(7)), after notice and opportunity for a Departmental hearing. The local agency may issue permits in these areas for the abatement of existing health hazards and public nuisances.
(16) When applicable, establish a program for requiring, verifying, forfeiting, administering and enforcing the provision of financial assurances under § 73.151 (relating to standards for financial assurances). Costs for administering this program shall be included in the fee schedule of the local agency.
(b) The local agency may offer a program to provide financial assurance, for a fee, for systems installed under § 73.77 (relating to general requirements for bonded disposal systems). Financial assurance provided by the local agency shall comply with § 73.151.
Subchapter D. CERTIFICATION OF SEWAGE
ENFORCEMENT OFFICERS§ 72.52. Conditions of certification.
(a) The Certification Board will issue a Sewage Enforcement Officer Certificate to a person who meets the following:
(1) Is a natural person or individual. Associations, partnerships or corporate entities are not qualified for certification.
(2) Has passed an applicable examination prepared by the Department.
(3) Has not had his certification revoked previously. After 2 years from a previous revocation, the Certification Board may reexamine and recertify a person. In determining fitness for recertification, the Certification Board will consider the nature and gravity of the misconduct which resulted in the previous revocation and the recommendation of the Department.
(b) Certification is for up to 2 years. Upon the payment of a fee of $5 by the certificate holder the Certification Board will renew a valid certificate of a qualified applicant, except that applicants for renewal who are employed by the Department in administering the act are not subject to the fee requirements of this subsection.
(c) If the Certification Board does not meet within 30 days of receiving the examination results from the certification testing contractor, an applicant for certification who meets the requirements of subsection (a) will be deemed certified, except that an applicant who is in violation of the regulations under the act or who is restrained from certification by § 72.43 (relating to powers and duties of the Department) will not be deemed certified.
§ 72.53. Certification examination.
(a) The Department will prepare an examination to be used by the Certification Board in determining the fitness of candidates for certification and will establish the passing grade for the examination and for each part of the examination in the areas of sewage facilities planning, program administration, technical criteria and enforcement.
(b) The Department will submit the examination to the Certification Board, which shall by letter to applicants and by publication in the Pennsylvania Bulletin at least 30 days prior to each examination announce the location, time, scope and passing grade for the examination.
(c) The Certification Board shall schedule a date for the examination at least four times in each calendar year.
(d) An individual who takes, but does not successfully pass the examination on three occasions, is not permitted to retake the examination administered by the Certification Board for 1 year, and until the applicant has completed a training course approved by the Department. Thereafter, a candidate may take the examination only once in a calendar year until the examination is passed.
§ 72.56. Change of address.
(a) The Certification Board will compile and keep current a register showing the names and addresses of certified sewage enforcement officers. Copies of this register will be furnished on request.
(b) The sewage enforcement officer shall promptly notify the Certification Board of a change of address.
§ 72.58. Certification Board hearings and procedures.
(a) Actions by the Department to revoke or suspend sewage enforcement officer certifications become final only after notice and opportunity for a hearing before the Certification Board. The filing of an appeal with the Certification Board does not operate as an automatic supersedeas of the action of the Department. If no request for a hearing is filed with the Secretary of the Certification Board within 30 days of receipt of notice of the action by the certificate holder, the action becomes final. Requests for a hearing shall set forth with specificity the grounds for the appeal, including objections to the Department's action. Failure to specifically delineate the grounds for the appeal, or to state a legally sufficient basis for relief, constitutes grounds for summary judgment or judgment on the pleadings as provided in the Pa.R.C.P. (relating to rules of civil procedure).
(b) In hearings before the Certification Board, 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) applies, unless it is inconsistent with this chapter. Discovery in hearings before the Certification Board shall be permitted as provided in the Pa.R.C.P.
(c) In proceedings before the Certification Board, the burden of proceeding and the burden of proof is the same as at common law, in that the burden normally rests with the party asserting the affirmative of an issue. The affirmative of the issue shall be established by a preponderance of the evidence. The Certification Board may require the other party to assume the burden of proceeding with the evidence in whole or in part, if that party is in possession of facts or should have knowledge of facts relevant to the issue.
(d) Actions and adjudications of the Certification Board shall be by a vote of a majority of members present at a meeting called for consideration of the action or adjudication. Three members of the Certification Board constitute a quorum.
(e) The Certification Board may hear matters brought before it as a whole or may appoint hearing examiners. Hearings held by hearing examiners not members of the Certification Board shall be decided by the Board based upon its review of the record and the examiner's proposed adjudication.
(f) An applicant is not entitled to a hearing when a certificate was denied because the applicant failed to pass the certification examination or failed to successfully complete a training program required by the Department.
CHAPTER 73. STANDARDS FOR SEWAGE DISPOSAL FACILITIES
GENERAL § 73.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Bonded disposal system--An individual sewage system located on a single lot serving a single family residence, where soil mottling is within 20 inches of the mineral soil surface, the installation, operation and replacement of which is guaranteed by the property owner.
* * * * * Qualified registered professional engineer--A person registered to practice engineering in this Commonwealth who has experience in the characterization, classification, mapping and interpretation of soils as they relate to the function of onlot sewage disposal systems.
Qualified registered professional geologist--A person registered to practice geology in this Commonwealth who has experience in the characterization, classification, mapping and interpretation of soils as they relate to the function of onlot sewage disposal systems.
Qualified soil scientist--A person certified as a sewage enforcement officer and who has documented 2 years' experience in the characterization, classification, mapping and interpretation of soils as they relate to the function of onlot sewage disposal systems and either a Bachelor of Science Degree in soils science from an accredited college or university or certification by the American Registry of Certified Professionals in agronomy, crops and soils.
* * * * * Soil mottling--A soil color pattern consisting of patches of different colors or shades of color interspersed with the dominant soil color and which results from prolonged saturation of the soil.
* * * * *
GENERAL SITE LOCATION AND
ABSORPTION AREA REQUIREMENTS§ 73.14. Site investigation.
(a) Soil tests to determine the presence of a limiting zone and the capacity of the soil to permit the passage of water shall be conducted prior to permit issuance.
(1) On all locations where the installation of an absorption area is proposed, at least one excavation for examination of the soil profile shall be provided.
(2) The depth of the excavation shall be to the top of the limiting zone, or a maximum of 8 feet.
(3) The soil profile excavations shall be conducted within 10 feet of the proposed absorption area. A description of the soil profile shall be recorded on Form ER-BWQ-290, Appendix A.
(4) Where soil has been removed by grading or excavation, the surface of the undisturbed soil shall be considered to be the point from which the depth to limiting zone is measured.
(b) When the examination of the soil profile reveals a limiting zone within 20 inches of the mineral soil surface, percolation tests may not be conducted and a permit will be denied except as provided in § 73.77 (relating to general requirements for bonded disposal systems).
(c) Where examination of the soil profile reveals the absence of a limiting zone within 20 inches of the mineral soil surface, percolation tests shall be performed within the proposed absorption area. The average percolation rate shall be within the range indicated in § 73.16 (relating to absorption area requirements).
(d) The location and depth to the limiting zone of all soil profile excavations and the location of all percolation tests conducted on a lot shall be indicated on the plot plan of the Application for Sewage Disposal System, Form ER-BWQ-290, or attached diagram.
§ 73.15. Percolation tests.
Percolation tests shall be conducted in accordance with the following procedure:
(1) Number and location. Six or more tests shall be made in separate test holes spaced uniformly over the proposed absorption area site.
(2) Results. Percolation holes located within the proposed absorption area shall be used in the calculation of the arithmetic average percolation rate.
(3) Type of hole. Holes having a uniform diameter of 6 to 10 inches shall be bored or dug as follows:
(i) To the depth of the proposed absorption area, where the limiting zone is 60 inches or more from the mineral soil surface.
(ii) To a depth of 20 inches if the limiting zone is identified as seasonal high water table, whether perched or regional; rock formation; other stratum; or other soil condition which is so slowly permeable that it effectively limits downward passage of effluent, occurring at less than 60 inches from the mineral soil surface.
(iii) To a depth 8 inches above the limiting zone or 20 inches, whichever is less, if the limiting zone is identified as rock with open joints or with fractures or solution channels, or as masses of loose rock fragments including gravel with insufficient fine soil to fill the voids between the fragments, occurring at less than 60 inches from the mineral soil surface.
(4) Preparation. The bottom and sides of the hole shall be scarified with a knife blade or sharp-pointed instrument in order to completely remove any smeared soil surfaces and to provide a natural soil interface into which water may percolate. Loose material shall be removed from the hole. Two inches of coarse sand or fine gravel shall be placed in the bottom of the hole to protect the soil from scouring and clogging of the pores.
(5) Procedure for presoaking. Holes shall be presoaked, according to the following procedure, to approximate normal wet weather or in-use conditions in the soil:
(i) Initial presoak. Holes shall be filled with water to a minimum depth of 12 inches over the gravel and allowed to stand undisturbed for 8 to 24 hours prior to the percolation test.
(ii) Final presoak. Immediately before the percolation test, water shall be placed in the hole to a minimum depth of 6 inches over the gravel and readjusted every 30 minutes for 1 hour.
(6) Determination of measurement interval. The drop in the water level during the last 30 minutes of the final presoaking period shall be applied to the following standard to determine the time interval between readings for each percolation hole:
(i) Where water remains in the hole, the interval for readings during the percolation test shall be 30 minutes.
(ii) Where no water remains in the hole, the interval for readings during the percolation test may be reduced to 10 minutes.
(7) Measurement. After the final presoaking period, water in the hole shall again be adjusted to approximately 6 inches over the gravel and readjusted when necessary after each reading.
(i) Measurement to the water level in the individual percolation holes shall be made from a fixed reference point and shall continue at the interval determined from paragraph (6) for each individual percolation hole until a minimum of eight readings are completed or until a stabilized rate of drop is obtained. A stabilized rate of drop shall mean a difference of 1/4 inch or less of drop between the highest and lowest readings of four consecutive readings.
(ii) The drop that occurs in the final period in percolation test holes, expressed as minutes per inch, shall be used to calculate the arithmetic average percolation rate.
(iii) Where no measurable rate is obtained in a percolation hole, the rate of 240 minutes per inch shall be assigned to that hole for use in calculating the arithmetic average percolation rate.
(iv) Where no measurable rate is obtained in 1/3 or more of the percolation holes, the proposed absorption area tested is unsuitable, and a permit shall be denied for that area.
BONDED DISPOSAL SYSTEM § 73.77. General requirements for bonded disposal systems.
(a) The local agency shall authorize the performance of a percolation test, at the owner's expense, when one is requested in writing by the owner of the property if the local agency determines soil mottling is present.
(b) If the sole reason for a property not meeting the requirements for the installation of an individual residential onlot sewage system is the presence of soil mottling, the local agency shall issue a permit for an individual residential onlot sewage system designed to meet the Department's standards when the property owner meets the following conditions:
(1) A qualified soil scientist, qualified registered professional geologist, certified sewage enforcement officer or qualified registered professional engineer, not employed by the local agency with jurisdiction over the property in question, confirms in writing that the soil mottling observed in the test pits is not an indication of either a regional or perched seasonal high water table.
(2) The property owner provides evidence of financial assurance satisfactory to the local agency in an amount equal to the cost of replacement of the individual residential sewage system proposed and the reasonably anticipated cost of remedial measures to clean up contaminated groundwater to replace any contaminated water supplies and to repair or replace a malfunction of the onlot system. The local agency may not approve financial assurance in an amount less than $20,000 or 15% of the appraised value of the lot and proposed residential dwelling. The terms of the financial assurances shall be for up to 3 years. The local agency may require a continuation of up to 2 additional years of financial assurance. The local agency may terminate the financial assurance requirement at the end of its term consistent with the act.
(3) The property owner provides notification to the local agency 7 working days prior to conducting soil evaluations under this section and a representative of the local agency may observe the soil evaluations and may review resulting reports and correspondence.
(4) The property owner produces evidence of a clause in the deed to the property that clearly indicates soil mottling is present on the property and that an individual residential onlot sewage system meeting the requirements of this section was installed on the property.
§ 73.151. Standards for financial assurances.
(a) Financial assurance shall be sufficient to meet the requirements of section 7.2 of the act (35 P. S. § 750.7b).
(b) The local agency may establish an amount of financial assurance above the minimum established by § 73.77(b)(2) (relating to general requirements for bonded disposal systems).
(c) A local agency may accept forms of financial assurance that establish, to the satisfaction of the local agency, its full and unconditional right to demand and receive any sum due it under section 7.2 of the act. A local agency may authorize a property owner to use the financial assurance for the sole purpose of repair or replacement of the onlot system, for remedial measures to clean up contaminated groundwater and to replace contaminated water supplies.
(d) The local agency will forfeit the financial assurance when it determines that one or more of the following apply:
(1) The property owner has violated or continues to violate one or more of the terms or conditions pertaining to the financial assurance.
(2) The system has malfunctioned.
(3) The permittee has violated a condition of the permit or submitted false information.
(4) The property owner or permittee has failed to properly perform the remedial action required.
[Pa.B. Doc. No. 96-1869. Filed for public inspection November 1, 1996, 9:00 a.m.]
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