[27 Pa.B. 5877]
[Continued from previous Web Page] § 72.24. Applications for permits.
(a) Application for a permit to install an individual or community onlot sewage system shall be made by the owner, owner in equity or a person who is an authorized agent of the owner or owner in equity to the local agency, on a form provided by the Department. For purposes of this section, an authorized agent shall have written permission to apply for a permit, signed by the owner or owner in equity of the lot for which the application is made.
(b) The local agency may require additional information consistent with the act needed to assure that the system or the site will comply with the requirements of the act and this part.
(c) The local agency shall maintain and make available for public inspection a permanent record of all permit applications submitted, indicating the date received, type of submission and date of disposition.
§ 72.25. Issuance of permits.
(a) A permit shall be issued when the local agency has determined that the application is complete and meets the requirements of the act and this part.
(b) The local agency shall issue or deny a permit for a conventional system in writing within 7 days after receiving a complete initial application.
(c) If the local agency determines that an initial application is incomplete or that it is unable to verify the information contained in an application, the local agency shall notify the applicant in writing within 7 days of receipt of the application. The notice shall include the reasons why the application is not acceptable. When the required information is received, the local agency shall act upon the application within 15 days.
(d) A person desiring to install an experimental onlot sewage system shall submit complete preliminary design plans and specifications to the sewage enforcement officer and the Department for review and comment at least 60 days prior to submitting an application for a permit. The Department will determine if classification as an experimental system is appropriate for the submission and provide review comments within 60 days to the sewage enforcement officer.
(e) Applications for alternate system permits submitted to municipalities or local agencies which are not delegated agencies, shall be reviewed for completeness, and, if found to be incomplete, the nature of the deficiency shall be communicated by the municipality or local agency to the applicant in writing within 15 days of receipt of the application.
(1) Applications for alternate system permits found to be complete shall be submitted to the Department within 5 days of the determination of completeness by the local agency or authorized representative for the Department's determination whether the classification as alternate is appropriate for the submission and the Department's review of comments.
(2) Permits for alternate systems shall be issued or denied by the local agency within 45 days of transmittal of a complete application to the Department. The local agency shall consider the written comments submitted by the Department regarding the application.
(3) In municipalities or local agencies which are delegated agencies or which employ or contract with sewage enforcement officers authorized to review alternate sewage systems under § 72.43(1) (relating to powers and duties of the Department), permit applications for alternate systems shall be reviewed for completeness, and, if found to be incomplete, the nature of the deficiency shall be communicated to the applicant in writing within 15 days of receipt of the application. Permits for alternate systems shall be issued or denied by the local agency within 30 days of receipt of a complete application.
(f) Failure of a local agency to act on an application does not constitute permit approval. If the local agency does not act upon an application within 7 days of receipt, or within 15 days of receipt of supplemental information under subsection (c), the applicant may request a hearing before the local agency.
(g) A local agency may not issue individual or community onlot sewage system permits for the following systems; permits for these systems are issued by the Department:
(1) A large volume onlot sewage system.
(2) Subsurface disposal or other method of disposal of a substance defined as industrial waste under the Clean Streams Law.
(3) A method of sewage disposal other than renovation of sewage in a subsurface absorption area, an individual residential spray irrigation system or temporary storage in a retaining tank.
(h) Prior to the issuance of a permit for an individual residential spray irrigation system, the local agency shall require documentation that the municipality in which the system is to be located, has taken action to assure compliance of the system with § 73.167 (relating to operation and maintenance of individual residential spray irrigation systems) for the life of the system. The assurance shall be established through one or a combination of the following options which have been established or approved in writing by the municipality:
(1) A maintenance agreement between the property owner and an individual, firm or corporation experienced in the operation and maintenance of sewage treatment systems.
(2) A maintenance agreement between the property owner and municipality or its designated local agency which establishes the property owner's responsibility for operating and maintaining the system and the responsibility of the municipality or local agency for oversight of the system.
(3) A municipal ordinance which requires individual residential spray irrigation systems to be operated and maintained through a maintenance agreement between the property owner and an individual, firm or corporation experienced in the operation and maintenance of sewage treatment systems.
(4) Municipal ownership of the system.
(5) Inclusion of the system under a sewage management agency developed in accordance with § 71.73 (relating to sewage management programs for sewage facilities permitted by local agencies) operated by the municipality.
(6) A properly chartered association, trust or other private legal entity which is structured to manage the system.
(7) Bonding, escrow or other security established prior to the issuance of a permit for an individual residential spray irrigation system and forfeited to the municipality upon notice of continuing noncompliance of the system with the operation and maintenance standards in § 73.167 (relating to operation and maintenance of individual residential spray irrigation systems) and monitoring standards in § 72.42(a)(24) (relating to powers and duties of local agencies). The municipality shall use the forfeited security to cover the costs of repair or future operation and maintenance of the system over its design life. The bonding, escrow or other security shall be for an amount up to a maximum of 50% for each of the first 2 years of operation. After 2 years of operation, the bond agreement shall provide for a refund of a portion of the original bond so that only 10% of the cost of equipment and installation is retained by the bondholder. The remaining bond totalling 10% of the cost of equipment and installation shall be maintained for the life of the system.
(i) When a local agency has issued a permit under this section and the Department disagrees with the basis for the issuance of the permit, the Department will not require the revocation of that permit unless the Department has provided to the local agency justification for its decision based on the specific provisions of statute or regulation.
§ 72.26. Denial of permits.
(a) Notice of denial of a permit shall be in writing to the applicant and shall include the reasons for denial and advise the applicant of the right to a hearing before the local agency. The local agency shall provide the Department with a copy of the notice of denial within 7 days of issuance.
(b) The sewage enforcement officer shall accept prior testing data and information obtained by a previous sewage enforcement officer, if the site and prior testing is certified by the previous sewage enforcement officer and meets all of the criteria contained in paragraphs (1)--(10) and the current sewage enforcement officer certifies the data and information to the local agency using a ''Verification of Prior Testing'' Form provided by the Department. There shall be a presumption that, unless the prior sewage enforcement officer's certification has been revoked or suspended by the Department or the prior sewage enforcement officer's certification has been voluntarily surrendered to the Department or Certification Board, the testing data and information obtained by the prior sewage enforcement officer is valid unless the currently employed sewage enforcement officer finds that one or more of the criteria in the following paragraphs are not met:
(1) The soil testing performed on the property in question has not been cited in a revocation, suspension or other agreement to surrender certification which indicates violations of soil testing procedures by the previous sewage enforcement officer.
(2) The exact location of the test to be used for issuance of a permit shall be verifiable by at least one of the following methods:
(i) Location of the test pit and percolation hole remnants on the lot by the current sewage enforcement officer.
(ii) The existence of recorded measurements from at least two permanent landmarks on the property in question establishing the original test location.
(iii) A scale drawing of the lot or property in question indicating the location of the tests by reference to at least two permanent landmarks.
(iv) Identification of the exact location of the tests by the prior sewage enforcement officer, if the certification has not been revoked, suspended or voluntarily surrendered to the Department or Certification Board.
(3) Verification that the percolation test and soils evaluation were conducted in accordance with the applicable regulations.
(4) Soils description and percolation test data are available and recorded on the prescribed form, or its equivalent, in sufficient quantity and quality to be interpreted by others.
(5) The soil probes were conducted within 10 feet of the proposed absorption area.
(6) The percolation test on the lot was performed on the site of the proposed absorption area.
(7) The person who originally observed, confirmed or conducted the testing was certified under the current certification requirements of the act.
(8) No inaccuracies or falsifications of the test data are apparent or identifiable.
(9) No changes to the site have occurred since the time of the original testing which will materially affect the siting or operation of an individual or community onlot sewage disposal system.
(10) Receipt of a notarized statement from the property owner which indemnifies and holds harmless the new sewage enforcement officer, municipality and local agency for the actions of the new sewage enforcement officer in verifying the prior testing data and information obtained by a previous sewage enforcement officer.
(c) If, after conducting a verification of prior testing under subsection (b) the currently employed sewage enforcement officer denies an application for a permit or rejects the previous tests performed within the immediately preceding 6 years, retesting and reapplication fees shall be waived to the applicant and the local agency shall pay for any equipment and operators required for a retest and for any necessary redesign of the system if:
(1) The tests were certified by signature of a sewage enforcement officer.
(2) Local agency records document that the sewage enforcement officer who certified the tests was employed or under contract with the local agency at the time the testing was conducted and certified.
(3) The testing documents soils and site suitability for onlot sewage disposal.
(d) Subsection (c) does not apply if the local agency documents that one of the following exists:
(1) Changes have occurred in the physical condition of lands which will materially affect the siting or operation of an individual or community onlot sewage disposal system covered by a permit as verified by the sewage enforcement officer conducting the testing in accordance with the criteria outlined in subsection (b).
(2) The original soils testing was performed by a sewage enforcement officer whose certification was one of the following:
(i) Revoked by the Department and any subsequent appeal denied.
(ii) Voluntarily surrendered to avoid prosecution or a hearing.
(iii) Suspended by the Department for violations related to the siting, design or installation inspection of onlot systems.
(3) The soils testing and redesign required by the new sewage enforcement officer has been conducted by the local agency using its staff and equipment or contracted services.
(4) The testing under review was conducted more than 6 years prior to the date of the submittal of a permit application for the lot in question.
(e) A person aggrieved by the action of a sewage enforcement officer in the issuance or denial of a permit, or another action taken under section 7 of the act (35 P. S. § 750.7) other than a permit revocation, may within 30 days of receipt of notice of the action, file a request for a hearing before the local agency. The request shall be in writing.
§ 72.27. Expiration and transfer of permits.
(a) A permit shall expire if construction or installation of an individual or community onlot sewage system and the structure for which the system is to be installed has not begun within 3 years after permit issuance. A new permit shall be obtained prior to beginning the construction or installation. When issuing a new permit the local agency may require information necessary to confirm the validity of the original application as provided by § 72.26(b) (relating to denial of permits).
(b) A permit may be transferred from the permit holder to a new property owner with the transfer of the property. Transfers are not valid until approved in writing by the local agency, and until new property owners receive a copy of the application under which the permit was issued.
§ 72.28. Revocation of permits.
(a) A permit shall be revoked by the local agency at any time for one or more of the following reasons:
(1) When a change has occurred in the physical conditions of lands which will materially affect the operation of an individual or community onlot sewage disposal system covered by a permit issued by the local agency under this chapter.
(2) When one or more tests material to the issuance of the permit has not been properly conducted.
(3) When information relevant to the issuance of the permit has been falsified.
(4) When the original decision of the local agency otherwise failed to conform with the act and this part.
(5) When the permittee has violated the act, this part or the requirements of the permit.
(b) The notice of revocation of a permit shall be in writing to the permit holder and shall include the reasons for revocation, notice of the permit holder's opportunity to request a hearing before the local agency within 10 days of receipt of the revocation notice, and notice that no further construction or use of either the sewage system or the structure for which it is intended may take place until a new permit is issued or the revocation is reversed by the local agency.
(c) If a permit holder fails to file a written request for a hearing under this chapter within 10 days after receipt of notice of revocation, revocation shall be final.
§ 72.31. Conditions related to the installation of permit exempt systems.
A person installing a permit-exempt system shall indemnify and hold harmless the Commonwealth, the local agency, the sewage enforcement officer serving the municipality in which the system is located and the municipality where the system is located from and against damages to property or injuries to any persons and other losses, damages, expenses, claims, demands, suits and actions by any party against the Commonwealth, the local agency, sewage enforcement officer and the municipality in connection with the malfunctioning of the onlot sewage system installed under the permit exemption provisions of this chapter. It is the sole responsibility of the property owner who installed or contracted for the installation of a sewage system under the permit exemption provisions of this chapter or the property owner who accepted responsibility for the system upon purchase of the property under the disclosure provisions of § 72.32(a) (relating to sales contracts) to correct or have corrected any system malfunction which contaminates surface water or groundwater or discharges to the surface of the ground. Malfunctions of systems installed under this chapter which contaminate groundwater or surface water or discharge to the surface of the ground shall constitute a nuisance and shall be abatable in a manner provided by law.
§ 72.32. Sales contracts.
(a) Every contract for the sale of a lot which is served by an individual sewage system which was installed under the 10-acre permit exemption provisions of § 72.22(e)--(g) (relating to permit issuance) shall contain a statement in the contract that clearly indicates to the buyer that soils and site testing were not conducted and that the owner of the property or properties served by the system, at the time of a malfunction, may be held liable for any contamination, pollution, public health hazard or nuisance which occurs as the result of the malfunction of a sewage system installed in accordance with the 10-acre permit exemption provisions of § 72.22(e)--(g).
(b) Every contract for the sale of a lot served by a holding tank, whether permanent or temporary, to which sewage is conveyed by a water carrying system and which is designed and constructed to facilitate ultimate disposal of the sewage at another site, shall contain a statement in the contract that clearly indicates that the property is served by such a tank and shall provide a history of the annual cost of maintaining the tank from the date of its installation or December 15, 1995, whichever is later.
(c) Every contract for sale of a lot which is served by an individual sewage system which was installed under § 72.33 (relating to well isolation distance exemption) with an isolation distance less than the distance specified by § 73.13 (relating to minimum horizontal isolation distances) shall contain a statement in the contract that clearly indicates to the buyer that the isolation distances required by regulation between the individual onlot system components and the well on the property being sold were not met.
(d) Every contract for the sale of a lot which is within an area in which permit limitations are in effect shall contain a statement in the contract that clearly indicates to the buyer that sewage facilities are not available for that lot and construction of a structure to be served by sewage facilities may not begin until the municipality completes a major planning requirement.
(e) Every contract for the sale of a lot for which a required revision for new land development, exception to the requirement to revise or a required supplement has not been approved shall contain a statement that clearly indicates to the buyer that sewage facilities are not available for that lot and that sewage facilities will not be available nor may construction begin until sewage facilities planning has been approved.
(f) Every contract for the sale of a lot for which there is no currently existing community sewage system available shall contain a statement in the contract clearly indicating to the buyer that there is no community sewage system available, that a permit for an individual sewage system will have to be obtained and the buyer should contact the local agency charged with administering the act before signing the contract to determine the procedure and requirements for obtaining a permit for an individual sewage system if one has not already been obtained.
(g) A contract for the sale of a lot which does not conform to the requirements of this section is not enforceable by the seller against the buyer. Any term of the contract purporting to waive the rights of the buyer to the disclosures required in this section is void.
§ 72.33. Well isolation distance exemption.
(a) Any minimum distance requirement between a private well and a proposed absorption area specified in Chapter 73 (relating to standards for onlot sewage treatment facilities) is not applicable if the local agency finds that the installation of a proposed individual sewage system does not pose a threat of pollution to any well on the same lot within the distance specified by regulation. The minimum distance between a proposed individual sewage system on the applicant's lot and any wells on any other lot, regardless of the ownership of that lot, shall meet the minimum horizontal isolation distances in § 73.13 (relating to minimal horizontal isolation distances) except as provided in § 73.3(b) (relating to policy).
(b) If a repair to a malfunctioning onlot system is being considered under § 73.3(b), the requirements of this section may be waived at the sole discretion of the local agency.
(c) The applicant shall submit a formal written request for a well isolation distance exemption to the local agency. The request shall include:
(1) Appropriate groundwater studies.
(2) Payment of fees or costs incurred by the local agency to review the groundwater study.
(d) Upon receipt of the items required in subsection (c), a local agency, other than a delegated agency, shall act upon an application for an exemption under this section within 45 days after receipt of a request for an exemption. A delegated agency shall act on any application for an exemption under this section within 30 days after receipt of a request for exemption.
(e) The local agency, municipality, sewage enforcement officer and Department will incur no liability as a result of the local agency granting an exemption under this section.
Subchapter C. ADMINISTRATION OF PERMITTING REQUIREMENTS § 72.41. Powers and duties of sewage enforcement officers.
(a) A sewage enforcement officer has the power and duty to issue, deny and revoke permits, and to take all other actions necessary to administer and enforce section 7 of the act (35 P. S. § 750.7), except that a sewage enforcement officer may not conduct hearings under section 16 of the act (35 P. S. § 750.16).
(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)--(k), 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 accept payment only from the local agency for services performed in conjunction with administration of the act.
(e) A sewage enforcement officer shall only accept an 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(a)(7) (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) except as provided by subsection (i).
(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, orally or in writing, suggest, recommend or require the use of any particular consultant, soil scientist or professional engineer, or any individual or firm providing these services where these services may be required or are subject to review under this article.
(i) A sewage enforcement officer may not perform consulting or design work or related services required or regulated under the act within the municipality or local agency by which the officer is employed or with which the officer has a contractual relationship unless the services are set in the fee schedule of the local agency, the fees are paid directly to the local agency and the records and products relating to consultation or design work are reviewed by and any subsequent permit is issued by another sewage enforcement officer employed by or under contract with the same local agency.
(j) 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.
(k) For purposes of subsection (j), 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.
(l) Prior to issuing a permit, the sewage enforcement officer shall conduct personally, observe or otherwise confirm in a manner approved by the Department all 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 provided the site, data and prior testing meet the criteria specified in § 72.26(b)--(d). When a sewage enforcement officer accepts testing by a prior officer, a copy of the Department's ''Verification of Prior Testing'' form or other form as may be specified by the Department, shall be attached to each copy of the permit application.
(m) 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.
(n) The sewage enforcement officer shall give timely written notice to applicants or permittees of approval, denial or revocation of a permit under this chapter.
(o) 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.
(p) 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.
(q) 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 or contract with sewage enforcement officers to administer section 7 of the act (35 P. S. § 750.7) and this part.
(2) Employ or contract with 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 necessary for the administration of the act by the local agency.
(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 practice.
(7) Establish a system of receipts of 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 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 sections 7, 8, 12, 13, 13.1, 14, 15 and 16 of the act. For this purpose, the authorized representatives of the local agency have the right to enter upon lands.
(13) Proceed under sections 7, 8, 12, 13, 13.1, 13.2(b) 14, 15, and 16 of the act 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.
(17) Adopt by resolution a list of individuals who are sewage enforcement officers employed by companies or corporations under contract with the local agency to perform the services of sewage enforcement officers.
(18) Set and collect fees necessary to support the administrative and personnel costs of a maintenance inspection and enforcement program.
(19) Charge for engineering or consulting services required by the local agency to complete its review of a permit application. The application or review fees charged for these services shall be reasonable and in accordance with the ordinary and customary charges by the engineer or consultant for similar service in the community, and fees may not exceed the rate or cost charged by the engineer or consultant to the local agency when fees are not reimbursed by or otherwise imposed on applicants.
(i) If the applicant disputes the amount of the fees or charges, the applicant shall, within 10 working days of the date of billing, notify the local agency that the fees or expenses are disputed as unreasonable or unnecessary, in which case the local agency may not delay or disapprove an application for any approval or permit due to the applicant's dispute over fees or charges.
(ii) If, within 20 days from the date of billing, the local agency and the applicant cannot agree on the amount of fees or charges which are reasonable and necessary, the applicant and local agency shall comply with the procedure established in section 8(b)(4) of the act (35 P. S. § 750.8(b)(4)) to resolve the fee or charge dispute.
(20) Complete and provide to the applicant the results of any site suitability review, soil probe testing and soil percolation testing within 20 working days of the local agency's receipt of a permit application.
(i) The testing and results of the testing may be deferred to a later date that the applicant may request in writing or by a later date agreed to by the sewage enforcement officer and the applicant, which is confirmed in writing by the sewage enforcement officer.
(ii) A one-call system serial number shall be obtained prior to soil testing by the permit applicant or the contractor retained by the applicant to perform the test excavation. This notification shall take place no less than 3 and no more than 10 working days prior to the excavation. The deadline for permit review by the local agency in this subsection does not apply to an applicant who fails to comply with the one-call system notification requirement.
(iii) It is the obligation of the applicant to have the site prepared in the manner required by written instructions provided to the applicant after receipt of at least 48 hours' notice from the local agency or sewage enforcement officer of the anticipated time the soils tests will be performed. Written instructions shall include provisions for deferral of testing due to weather.
(iv) Failure of the local agency to comply with these time limits shall entitle the applicant, upon request, to a refund of fees paid by the applicant for soil testing that was not performed by the local agency, and the applicant shall be entitled to submit results of soils tests, on forms provided by the Department conducted in a manner consistent with this article by a certified sewage enforcement officer, who need not be employed by or under contract with the local agency. These test results shall be accepted by the local agency and its sewage enforcement officer, who shall rely upon the results of these tests in acting on an application.
(v) An applicant who, after receiving the notice of testing, fails to have the site prepared for soil testing in a manner required by the local agency, does not have the right to submit the results of soils testing performed by a certified sewage enforcement officer not employed by or under contract with the local agency, nor is the applicant entitled to a refund of fees paid for soil testing as provided in this section.
(vi) Neither the municipality, local agency, local agency's sewage enforcement officer nor the Department will be held liable on a cause of action arising out of soil tests performed under this section by a certified sewage enforcement officer not employed by or under contract with the local agency.
(21) Make inspections of and verify measurements made by applicants on public or private properties which are determined by the local agency's authorized representative to have natural or manmade features from which specific isolation distances are required prior to the approval of onlot sewage disposal system usage in subdivisions or individual lots. The local agency's authorized representative shall have the right to enter upon lands for these purposes.
(22) Determine if a proposed individual residential spray irrigation system will create a nuisance or adversely impact existing and proposed drinking water supplies and report this information to any affected municipality served by the local agency.
(23) Assure that an individual residential spray irrigation system discharge is sampled at least once per year by the property owner through a testing laboratory for fecal coliforms, carbonaceous biological oxygen demand, suspended solids and disinfectant residual or effectiveness. Individual effluent samples may not exceed a BOD5 of 25 mg/l and suspended solids concentration of 30 mg/l. Free chlorine residual shall be maintained at a range of 0.2--2.0 PPM unless a higher level is required to control disease producing organisms. This disinfection shall produce an effluent which will contain a concentration not greater than 200 fecal coliform organisms per 100 milliliters in a single sample. The local agency shall review the results of these samples and the most recent system inspection conducted under § 73.167 (relating to operation and maintenance) and take any necessary action to resolve operational or maintenance problems identified through the sample results. Additional sampling may be required by the local agency if the annual sample indicates a violation of the limitations specified in this paragraph.
(24) A county health department and joint county departments of health may also administer the continuing maintenance provisions of § 71.73 (relating to sewage management programs) when the municipality relinquishes and the county health department or joint county department of health accepts the authority and conforms with § 71.73.
(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.
(c) The local agency may not orally or in writing, suggest, recommend or require the use of a particular consultant, soil scientist or professional engineer, or an individual or firm providing these services when these services may be required or are subject to review under this part.
§ 72.43. Powers and duties of the Department.
(a) The Department is empowered to review the performance of local agencies and their sewage enforcement officers in the administration of sections 7, 8, 12, 13, 13.1, 13.2(b), 14, 15 and 16 of the act (35 P.S. § 750.7, 750.8, 750.12, 750.13, 730.13a, 750.13b(b) and 750.14--750.16).
(b) The Department and its authorized representatives may enter upon lands, make inspections and require the submission of papers, books and records by the local agency, or its sewage enforcement officer.
(c) If the Department finds that a local agency has failed to effectively administer section 7, 8, 12, 13, 13.1, 13.2(b), 14, 15 or 16 of the act or this part, the Department, in addition to other remedies it may seek at law or in equity, may order the local agency to take actions the Department deems necessary to obtain effective administration. These actions may include, but are not limited to:
(1) Negotiation with other local agencies for cooperation in areawide administration.
(2) Modification of administrative, testing or reporting procedures.
(3) Retention of expert consultants.
(4) Employment of additional personnel.
(5) Satisfactory participation by the local agency's sewage enforcement officer in special training programs designed to strengthen a specific weakness in the administration of the act and this part.
(6) Coordination of permit issuance for sewage systems with building permit issuance or with subdivision approval under local ordinances that the local agency may be administering at the time of the order.
(d) The Department has the duty to establish a training program for sewage enforcement officers. The Department will require timely and satisfactory completion by sewage enforcement officers of training courses sponsored by the Department. Satisfactory completion means attendance at all sessions of training and attainment of a minimum grade of 70% on tests given as part of the training course.
(e) The Department is empowered to revoke or suspend the certification of sewage enforcement officers for cause, or to reinstate the certification under this part. The actions of the Department will become final only after provision of notice and an opportunity for hearing before the Certification Board, under § 72.58 (relating to Certification Board hearings and procedures).
(f) The Department will suspend a sewage enforcement officer's certification if the Department determines that the sewage enforcement officer has done one of the following:
(1) Demonstrated incompetence to act as a sewage enforcement officer as evidenced by errors in planning, administration or permit issuance duties which evidence a failure or inability to understand and apply the requirements of the act and this part.
(2) Failed to complete satisfactorily a sewage enforcement officer's training course required by the Department under subsection (k).
(3) Demonstrated negligence or provided false information related to the administration of the act or this part or committed violations of this part which are not related to the issuance of a permit.
(g) The Department may reinstate the certification of a person within 2 years from the date of suspension or after 2 years following the effective date of a revocation. Prior to reinstatement, the Department will require, as a minimum, that the person take and pass the appropriate certification examination administered by the Certification Board. The Department may require satisfactory completion of a special training program designed to strengthen a specific weakness in the sewage enforcement officer's administration of the act or this part. The program may entail the use of testing procedures including, but not limited to:
(1) Field evaluation of technical performance.
(2) Written or oral examination of standards and procedures.
(h) The Department will revoke the certification of a sewage enforcement officer whenever the Department determines that the sewage enforcement officer has done one of the following:
(1) Demonstrated a willful disregard of, or willfully or repeatedly issued permits in violation of the act or this part.
(2) Failed repeatedly to attend mandated sewage enforcement officer's training required by the Department under subsection (k).
(3) Failed to comply with the applicable terms of a Departmental order for effective administration of sections 7, 8, 12, 13, 13.1, 13.2(b), 14, 15 and 16 of the act.
(4) Issued a permit at a time when his certification was suspended.
(5) Willfully issued a permit outside of the geographic boundaries of authority specified by the local agency.
(6) Issued a permit which he believed to be in violation of the act or this part before being directed to do so by the local agency under a hearing.
(7) Failed to advise the local agency of a violation of the act, this part or the responsibility of the local agency to restrain the violation.
(8) Failed to take the necessary action to restrain a violation of the act or this part.
(9) Knowingly and willfully submitted false information to the Department or to the local agency in a report or form required by the act, this part or by order of the Department or the local agency.
(10) Committed an act requiring suspension under subsection (f) and had his certification suspended previously.
(11) Issued a permit in violation of § 72.41 (relating to powers and duties of sewage enforcement officers).
(12) Had his certification suspended for more than 2 years.
(13) Demonstrated negligence or knowingly provided false information related to the administration of the act or this part or knowingly committed violations of the act or this part which are not related to the issuance of a permit.
(i) The Department will consider complaints filed by local agencies or the public relating to the performance of local sewage enforcement officers as part of the Department's evaluation of the local agency and sewage enforcement officer.
(j) The Department may establish minimum training requirements using a Department curriculum of training as a prerequisite for applicants for certification as sewage enforcement officers. The curriculum may include a period of training under another certified sewage enforcement officer selected by the Department as a prerequisite to certification for candidates who pass the certification test.
(k) The Department may require a certified sewage enforcement officer whose performance has been evaluated and found deficient to complete a training course which may include a curriculum of training or a period of training under the direction of another certified sewage enforcement officer selected by the Department for a time period established by the Department.
(1) The Department may require this training as an alternative to suspension or as a requirement for reinstatement of a suspended certification.
(2) The local agency employing the training sewage enforcement officer shall authorize that officer to provide the training services within the jurisdiction of that local agency.
(3) The costs of Department-required training incurred by the training sewage enforcement officer and the local agency employing the training sewage enforcement officer shall be paid by the Department from funds made available under section 13.2 of the act (35 P. S. § 750.13b).
(l) The Department may delegate the review of certain alternate sewage systems as designated by the Department to sewage enforcement officers, within the area of their jurisdiction, qualified by the Department to review the systems.
(m) The Department has the duty to require local agencies to take necessary action to provide timely service, including, but not limited to, utilizing the services of an alternate sewage enforcement officer, employing temporary sewage enforcement officers and entering into contracts for service.
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