RALEIGH — A sweeping state regulatory reform measure held in committee for the past two months in the N.C. General Assembly includes a provision to bypass current environmental permitting policies for some private sewage systems.
The provision amounts to privatization of a regulatory function now shared by state and county agencies, some public environmental health officials say. It would, they note, allow fast-track approval of new pre-engineered sewage-treatment plants otherwise known as “package plants.”
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House Bill 760, the Regulatory Reform Act of 2015, includes a number of changes to environmental rules, including the creation of “an alternative process” for quicker approval of certain on-site sewage systems. The so-called “private option permit” would issued based solely on the certification of a qualified engineer and wouldn’t require review by state or county health officials. Currently, county health deparments must review permits for small, privately owned sewer plants. That review can sometimes take weeks or months depending upon site conditions and soil characteristics.
The measure cleared the N.C. House May 6 after a third reading. The state Senate passed the bill on its first reading May 7 and referred it to the Committee on Agriculture, Environment and Natural Resources, where it remains. From there, it’s headed to the Senate Finance Committee for review.
Rep. Chris Millis, R-Pender, a civil engineer, was one of the bill’s primary sponsors. He didn’t respond to telephone calls and an email request for an interview. Neither has his office returned answers to the list of written questions it had requested.
Troy Dees, Carteret County’s environmental health director, called the measure a way to get around the bureaucracy of permitting for “marginal sites” that would otherwise be subject to more scrutiny and a longer regulatory review process. Rural coastal counties, which typically have fewer centralized sewer systems in place and often the most environmentally sensitive areas, could feel the biggest consequences, he said.
“In this county, we rely heavily on on-site wastewater systems. All of Bogue Banks is on some type of on-site system,” Dees said.
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The prospect of quicker approvals than local health departments can provide would likely have financial benefits for developers, he said, especially when site conditions or soil characteristics may be an issue. Those benefits could come at a cost to property buyers and public health, he said.
“Marginal sites, I think that’s what the basis of this is. A typical two- to four-bedroom house takes about two or three weeks to permit. Marginal sites that require more review, more scrutiny, may take three to six months to permit – if it can be permitted,” Dees said.
Veronica Bryant is a past president and advocacy committee representative with the N.C. Public Health Association. The bill raises a number of environmental health concerns, she said in an email, namely that the privatization would become effective without rules in place to cover potential liability, responsibility and accountability issues with on-site systems. The association says clarifications and “additional pertinent language are needed.” The association is also concerned that the bill strikes out existing language regarding consultation with those who have “special training and experience” – a technical advisory panel or committee – in evaluating applications for approval.
Other environmental health officials worry about unclear monitoring requirements with the alternative approval process, including verification that effluent or groundwater standards are met. Also, the bill places no limitations on capacity or flow design for on-site systems. Another concern is that the alternative permitting process will be used only by developers while property buyers will be put at risk for ensuring proper system functioning and oversight. “Public health will be at risk,” according to information Dees provided.
According to the bill language, local health departments would use a common application form statewide as the notice of intent to build an on-site system under the proposed alternative process. The form would include several requirements, including a certified copy of the wastewater system owner’s contract with a professional engineer, a description of the proposed facility including any factors that would affect the wastewater load, a soils evaluation conducted by a licensed soil scientist and proof of professional errors and omissions or other appropriate liability insurance covering the engineer and soil scientist with policy limits of at least $1 million per claim in force for a two-year period.
The professional engineer designing the proposed wastewater system is responsible and accountable for all aspects of its construction and installation, including the selection and oversight of a certified contractor to run the plant.
The owner of the system must also submit a notarized letter that documents the owner’s acceptance of the system from the professional engineer. Upon receipt of the required documents and fees, the local health department is to issue the owner a letter of confirmation and notice that the wastewater system may operate.
Pre-engineered, package sewager-treatment systems are not uncommon and present “no big hang-up,” Dees said, adding that Carteret County has more than 50 such systems already in operation. Such systems do, however, require a properly certified operator and regular monitoring of operations for compliance. He said the responsibility for ensuring compliance isn’t clear in the bill.
“That’s still a gray area. Will it come back to the health department eventually? That can be worked out but it’s a concern,” he said. “The concern is the long road ahead, the liability and who’s going to maintain the thing and keep an eye on it. None of them work forever and they do need repairs; it’s the nature of the business. Will they come to the local health department to get the permit to repair? As soon as you stick a shovel in the ground – that requires a permit.”
According to the bill language, local health departments may, at any time, conduct visits to system sites and view documentation. Recordkeeping requirements related to their operation are also described in the bill.
“Our problem is that we’re going to be housing stuff that we don’t know about,” Dees said regarding documents related to privately permitted facilities.
The public health association is also worried that permits granted using this process would appear to have no set expiration date.
“How long is a permit good? What if they don’t build right away? I’m not sure the bill addresses it totally,” Dees said.
According to the language in the bill, the permit and the authorization for wastewater system construction “shall remain valid once issued, without expiration, provided the design wastewater flow and characteristics and the description of the proposed facility the wastewater system will serve remains unchanged.”
One concern is that a building permit for a project wouldn’t be issued until after a system is installed and approved by the engineer. Health directors say this could be especially problematic on small lots with little access. A new system could be damaged or destroyed during the construction process. County inspectors prefer to keep tabs on project timelines to ensure a system isn’t put in place prior to the bulk of construction around it. The movement of trucks, equipment and materials can damage lines and other components of a wastewater system if put in place too early in the project, Dees said.
Also unclear is the cost-effectiveness of the proposed alternative approval process. There’s uncertainty about the precise amount of the fees local health departments are to collect as well as the owner’s cost of professional services. Dees noted that the proposed method, which would apparently be priced based on the soil scientists’ and engineers’ fees, would be far more costly than the current process – thousands of dollars more.
“At the local level, our fee for a four-bedroom house is a $300 fee. You’re probably looking upward from $2,000 to $3,000 (for an alternative-process approval),” Dees said.
Not everyone shares Dees’ concerns about the measure. Doug Lassiter is executive director and lobbyist for the N.C. Septic Tank Association. Lassiter said most systems that handle anything more than 3,000 gallons per day are engineered systems – accepted designs that generally get swift approval at the local level.
“I don’t really see that it’s going to have a major impact at all,” Lassiter said.
The most likely locations where the provision would have an effect are the counties that don’t have an internal review process and therefore pass the applications up to the state level for approval. That leads to longer lead times that can add significantly to the cost of a development project.
“That’s when you factor in return on investments,” Lassiter said.
In terms of liability over the life of the system, the proposed insurance requirements are double the one-year term for which general contractors must maintain liability coverage. It’s not just the private sector that has culpability in these cases, Lassiter said.
“I have to keep reminding health departments that they make mistakes too,” Lassiter said. “If there’s a premature failure, the homeowner can take legal action against the state and local health department that is acting as an authorized agent of the state. It leads to lots of problems. Saying the private sector is going to make mistakes – everybody makes mistakes.”
Lassiter said the key is maintaining proper checks and balances.
“I’m satisfied this bill includes those checks and balances,” he said.
One measure of recourse provided in the bill allows the N.C. Department of Health and Human Services to file a written complaint with the N.C. Board of Examiners for Engineers and Surveyors or the N.C. Board of Licensed Soil Scientists, citing the engineer’s or the soil scientist’s failures to adhere to the rules.
The professionalism of engineers and soil scientists involved isn’t a big concern for Jack Flythe, Dare County’s environmental health supervisor. Nor are wait times. He said the “lull” in construction in his county has eliminated any problems with permitting delays.
“I can see for a developer or homeowner that would be an option, but as far as turnaround time, I don’t think it would make much of an impact here, now,” Flythe said.
Regarding environmental or public health concerns, Flythe said the private approval would be only as good as the soil scientists or engineers involved.
“Thank goodness we’ve got a bunch of really good professionals in that industry and we have a good working relationship. It may be different if we start working with people we’re unfamiliar with. If it’s someone who is just out to make a buck and push things through, then environmentally it could be a problem. We have some large, undevelopable tracts that could fall into this category if someone wants to push them through but hopefully those working in that field would be reputable people,” Flythe said.
The bill also includes requirements for a re-examination of existing state wastewater-treatment standards. The Commission for Public Health, in consultation with the Department of Health and Human Services and local health departments, is to study the costs and benefits of requiring treatment standards that are more stringent than nationally recognized standards, including the documented advantage of such higher treatment standards for the protection of the public health and the environment. The commission is to then report its findings and recommendations, including any legislative proposals, to the Environmental Review Commission and the Joint Legislative Oversight Committee on Health and Human Services on or before Jan. 1, 2016.
House Bill 760 continues the trend of eliminating environmental regulations that Republicans in charge at the legislature consider outdated or burdensome to business. They have passed a so-called regulatory “reform” bill in every session since they took control in 2011. Nearly 14 pages of this 39-page bill are devoted to rewriting regulations on sewer treatment plants. Other provisions that have gotten more attention include caps on increases renewable energy standards and amending rules for swine waste management and stormwater management, including adding exemptions to riparian buffer requirements for certain private properties in the Neuse and Tar-Pamlico river basins.
