BILL REQ. #:  H-4380.2 

Read first time 01/17/08.   Referred to Committee on Select Committee on Environmental Health.

     AN ACT Relating to reducing the regulatory authority of the department of health and state board of health to permit small on-site sewage disposal systems; amending RCW 43.20.050, 70.05.072, 70.05.074, 70.05.077, 70.118.020, and 70.118.030; adding a new section to chapter 70.118A RCW; and repealing RCW 70.118.130.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 43.20.050 and 2007 c 343 s 11 are each amended to read as follows:
     (1) The state board of health shall provide a forum for the development of public health policy in Washington state. It is authorized to recommend to the secretary means for obtaining appropriate citizen and professional involvement in all public health policy formulation and other matters related to the powers and duties of the department. It is further empowered to hold hearings and explore ways to improve the health status of the citizenry.
     (a) At least every five years, the state board shall convene regional forums to gather citizen input on public health issues.
     (b) Every two years, in coordination with the development of the state biennial budget, the state board shall prepare the state public health report that outlines the health priorities of the ensuing biennium. The report shall:
     (i) Consider the citizen input gathered at the forums;
     (ii) Be developed with the assistance of local health departments;
     (iii) Be based on the best available information collected and reviewed according to RCW 43.70.050 ((and recommendations from the council));
     (iv) Be developed with the input of state health care agencies. At least the following directors of state agencies shall provide timely recommendations to the state board on suggested health priorities for the ensuing biennium: The secretary of social and health services, the health care authority administrator, the insurance commissioner, the superintendent of public instruction, the director of labor and industries, the director of ecology, and the director of agriculture;
     (v) Be used by state health care agency administrators in preparing proposed agency budgets and executive request legislation;
     (vi) Be submitted by the state board to the governor by January 1st of each even-numbered year for adoption by the governor. The governor, no later than March 1st of that year, shall approve, modify, or disapprove the state public health report.
     (c) In fulfilling its responsibilities under this subsection, the state board may create ad hoc committees or other such committees of limited duration as necessary.
     (2) In order to protect public health, the state board of health shall:
     (a) Adopt rules necessary to assure safe and reliable public drinking water and to protect the public health. Such rules shall establish requirements regarding:
     (i) The design and construction of public water system facilities, including proper sizing of pipes and storage for the number and type of customers;
     (ii) Drinking water quality standards, monitoring requirements, and laboratory certification requirements;
     (iii) Public water system management and reporting requirements;
     (iv) Public water system planning and emergency response requirements;
     (v) Public water system operation and maintenance requirements;
     (vi) Water quality, reliability, and management of existing but inadequate public water systems; and
     (vii) Quality standards for the source or supply, or both source and supply, of water for bottled water plants.
     (b) Adopt rules and standards for prevention, control, and abatement of health hazards and nuisances related to the disposal of wastes, solid and liquid, including but not limited to sewage, garbage, refuse, and other environmental contaminants; adopt standards and procedures governing the design, construction, and operation of sewage, garbage, refuse and other solid waste collection, treatment, and disposal facilities;
     (c) Adopt rules controlling public health related to environmental conditions including but not limited to heating, lighting, ventilation, sanitary facilities, cleanliness and space in all types of public facilities including but not limited to food service establishments, schools, institutions, recreational facilities and transient accommodations and in places of work;
     (d) Adopt rules for the imposition and use of isolation and quarantine;
     (e) Adopt rules for the prevention and control of infectious and noninfectious diseases, including food and vector borne illness, and rules governing the receipt and conveyance of remains of deceased persons, and such other sanitary matters as admit of and may best be controlled by universal rule; and
     (f) Adopt rules for accessing existing databases for the purposes of performing health related research.
     (3) The state board shall adopt rules that are advisory only for the design, construction, installation, operation, and maintenance of ((those)) on-site sewage systems with design flows ((of)) equal to or less than three thousand five hundred gallons per day. The department shall provide technical assistance to local health jurisdictions concerning regulation of these on-site sewage systems.
     (4) The state board may delegate any of its rule-adopting authority to the secretary and rescind such delegated authority.
     (5) All local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and all other officers and employees of the state, or any county, city, or township thereof, shall enforce all rules adopted by the state board of health. In the event of failure or refusal on the part of any member of such boards or any other official or person mentioned in this section to so act, he or she shall be subject to a fine of not less than fifty dollars, upon first conviction, and not less than one hundred dollars upon second conviction.
     (6) The state board may advise the secretary on health policy issues pertaining to the department of health and the state.

Sec. 2   RCW 70.05.072 and 1995 c 263 s 1 are each amended to read as follows:
     The local health officer may grant a waiver from specific requirements adopted by the ((state)) local board of health for on-site sewage systems if:
     (1) The on-site sewage system for which a waiver is requested is for sewage flows ((under)) equal to or less than three thousand five hundred gallons per day;
     (2) The waiver request is evaluated by the local health officer on an individual, site-by-site basis; and
     (3) The local health officer determines that the waiver is consistent with the standards in, and the intent of, the ((state)) local board of health rules((; and
     (4) The local health officer submits quarterly reports to the department regarding any waivers approved or denied.
     Based on review of the quarterly reports, if the department finds that the waivers previously granted have not been consistent with the standards in, and intent of, the state board of health rules, the department shall provide technical assistance to the local health officer to correct the inconsistency, and may notify the local and state boards of health of the department's concerns.
     If upon further review of the quarterly reports, the department finds that the inconsistency between the waivers granted and the state board of health standards has not been corrected, the department may suspend the authority of the local health officer to grant waivers under this section until such inconsistencies have been corrected)).

Sec. 3   RCW 70.05.074 and 1997 c 447 s 2 are each amended to read as follows:
     (1) The local health officer must respond to the applicant for an on-site sewage system permit within thirty days after receiving a fully completed application. The local health officer must respond that the application is either approved, denied, or pending. All conditions of compliance for the permit must be included on or physically attached to the permit.
     (2) If the local health officer denies an application to install an on-site sewage system, the denial must be for cause and based upon public health and environmental protection concerns, including concerns regarding the ability to operate and maintain the system, or conflicts with other existing laws, regulations, or ordinances. The local health officer must provide the applicant with a written justification for the denial, along with an explanation of the procedure for appeal.
     (3) If the local health officer identifies the application as pending and subject to review beyond thirty days, the local health officer must provide the applicant with a written justification that the site-specific conditions or circumstances necessitate a longer time period for a decision on the application. The local health officer must include any specific information necessary to make a decision and the estimated time required for a decision to be made.
     (4) A local health officer may not limit the number of alternative sewage systems within his or her jurisdiction without cause. Any such limitation must be based upon public health and environmental protection concerns, including concerns regarding the ability to operate and maintain the system, or conflicts with other existing laws, regulations, or ordinances. If such a limitation is established, the local health officer must justify the limitation in writing, with specific reasons, and must provide an explanation of the procedure for appealing the limitation.

Sec. 4   RCW 70.05.077 and 1998 c 34 s 3 are each amended to read as follows:
     (1) The department of health, in consultation and cooperation with local environmental health officers, shall develop a one-day course to train local environmental health officers, health officers, and environmental health specialists and technicians to address the application of the waiver authority granted under RCW 70.05.072 as well as other existing statutory or regulatory flexibility for siting on-site sewage systems.
     (2) The training course shall include the following topics:
     (a) The statutory authority to grant waivers ((from the state on-site sewage system rules)) by the local health officer;
     (b) The regulatory framework for the application of on-site sewage treatment and disposal technologies, with an emphasis on the differences between rules, standards, and guidance. The course shall include instruction on interpreting the intent of a rule rather than the strict reading of the language of a rule, and also discuss the liability assumed by a unit of local government when local rules, policies, or practices deviate from the state administrative code;
     (c) The application of site evaluation and assessment methods to match the particular site and development plans with the on-site sewage treatment and disposal technology suitable to protect public health ((to at least the level provided by state rule)); and
     (d) Instruction in the concept and application of mitigation waivers.
     (3) The training course shall be made available to all local health departments and districts in various locations in the state without fee. Updated guidance documents and materials shall be provided to all participants, including examples of the types of waivers and processes that other jurisdictions in the region have granted and used. The first training conducted under this section shall take place by June 30, 1999.

Sec. 5   RCW 70.118.020 and 1994 c 281 s 2 are each amended to read as follows:
     ((As used in this chapter,)) The ((terms defined)) definitions in this section ((shall have the meanings indicated)) apply throughout this chapter unless the context clearly ((indicates)) requires otherwise.
     (1) "Nonwater-carried sewage disposal devices" means any device that stores and treats nonwater-carried human urine and feces.
     (2) "Alternative methods of effluent disposal" means systems approved by the department of health or local boards of health, including at least, mound systems, alternating drainfields, anaerobic filters, evapotranspiration systems, and aerobic systems.
     (3) "Failure" means: (a) Effluent has been discharged on the surface of the ground prior to approved treatment; or (b) effluent has percolated to the surface of the ground; or (c) effluent has contaminated or threatens to contaminate a groundwater supply.
     (4) "Additive" means any commercial product intended to affect the performance or aesthetics of an on-site sewage disposal system.
     (5) "Department" means the department of health.
     (6) "On-site sewage disposal system" means any system of piping, treatment devices, or other facilities that convey, store, treat, or dispose of sewage on the property where it originates or on nearby property under the control of the user where the system is not connected to a public sewer system. For purposes of this chapter, an on-site sewage disposal system does not include indoor plumbing and associated fixtures.
     (7) "Chemical additive" means those additives containing acids, bases, or other chemicals deemed unsafe by the department or local boards of health for use in an on-site sewage disposal system.
     (8) "Additive manufacturer" means any person who manufactures, formulates, blends, packages, or repackages an additive product for sale, use, or distribution within the state.
     (9) "Small on-site sewage disposal system" means an on-site sewage disposal system with design flows of equal to or less than three thousand five hundred gallons per day.

Sec. 6   RCW 70.118.030 and 1998 c 152 s 1 are each amended to read as follows:
     (1) Local boards of health shall adopt regulations concerning on-site sewage disposal systems, shall identify failing septic tank drainfield systems in the normal manner, and will use reasonable effort to determine new failures. The local health officer, environmental health director, or equivalent officer may apply for an administrative search warrant to a court official authorized to issue a criminal search warrant. The warrant may only be applied for after the local health officer or the health officer's designee has requested inspection of the person's property under the specific administrative plan required in this section, and the person has refused the health officer or the health officer's designee access to the person's property. Timely notice must be given to any affected person that a warrant is being requested and that the person may be present at any court proceeding to consider the requested search warrant. The court official may issue the warrant upon probable cause. A request for a search warrant must show (([that])) that the inspection, examination, test, or sampling is in response to pollution in commercial or recreational shellfish harvesting areas or pollution in fresh water. A specific administrative plan must be developed expressly in response to the pollution. The local health officer, environmental health director, or equivalent officer shall submit the plan to the court as part of the justification for the warrant, along with specific evidence showing that it is reasonable to believe pollution is coming from the septic system on the property to be accessed for inspection. The plan must include each of the following elements:
     (a) The overall goal of the inspection;
     (b) The location and identification by address of the properties being authorized for inspection;
     (c) Requirements for giving the person owning the property and the person occupying the property if it is someone other than the owner, notice of the plan, its provisions, and times of any inspections;
     (d) The survey procedures to be used in the inspection;
     (e) The criteria that would be used to define an on-site sewage system failure; and
     (f) The follow-up actions that would be pursued once an on-site sewage system failure has been identified and confirmed.
     (2) Discretionary judgment will be made in implementing corrections by specifying nonwater-carried sewage disposal devices or other alternative methods of treatment and effluent disposal as a measure of ameliorating existing substandard conditions. Local regulations shall be consistent with the intent and purposes stated in this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.118A RCW to read as follows:
     A local health officer has discretionary authority to make a determination to not fulfill the requirements under this chapter. A local health officer shall consult with the local board of health before making such a determination. A local health officer shall report a determination to not fulfill the requirements of this chapter to the department.

NEW SECTION.  Sec. 8   RCW 70.118.130 (Civil penalties) and 2007 c 343 s 9 are each repealed.