Implementation of Session Law 2023-90

Pursuant To: Session Law 2023-90 (H628)

Source: Jon Fowlkes, Branch Head, On-site Water Protection Branch (OSWP

Issue: Implementation of Session Law Provisions

Summary & Implementation:

Session Law 2023-90 (H628) has multiple Sections that affect the on-site wastewater industry. This document is intended to provide the OSWP’s interpretation of the language in this Session Law to local health departments (LHDs) and industry professionals to help promote consistency statewide. This information is presented according to the Section in the Session Law that addresses each issue. Please be aware that this document ONLY provides summaries and interpretations of the Sections that affect authorized agents of the state in Onsite Water Protection, which includes Sections 1-6, 8, 9.5, 10.1, and 12.

Section 1, Modifications to G.S. 130A-335:

This Section amends language in G.S. 130A-335(a3) and (a5) to require a completeness review by the LHD upon a submittal of an Improvement Permit and/or Construction Authorization pursuant to (a2) of this statute. This Section requires the Department to develop a common form. A determination of completeness is made by the LHD by ensuring:

• The common form developed by the Department is submitted, completed and contains all required components of an Improvement Permit and/or Construction Authorization, as applicable, pursuant to G.S. 130A-336;  
• A site sketch is attached to the submittal which clearly shows initial and repair wastewater system areas. The areas should be sited in a way that makes it clear for the septic contractor and the installation inspector to find the wastewater system areas in the field; and  
• Any required legal agreements, artificial drainage requirements, and Licensed Soil Scientist (LSS)/Authorized Onsite Wastewater Evaluator (AOWE)/Licensed Geologist (LG)/Professional Engineer (PE) reports and/or plans are attached to the submittal.

Previously, the LHD had 10 business days to review a submittal under this statute. This Section now states that a LHD has five business days to make this completeness review. If a LHD fails to act in this 5-day period, the applicant may treat this failure as a determination of completeness. If a LHD determines that the submittal is incomplete, the applicant shall be notified of the components that are missing. The OSWP also recommends notifying the LSS/AOWE/LG/PE. The LHD will have five business days to perform the completeness review of the re-submittal.

While the LHD shall not review these submittals for accuracy or validity, inevitably issues or problems will be found on occasion. When issues are discovered by the LHD during the completeness review (e.g., error in bedrooms, incorrect design daily flow, setback violation, etc.), the LHD shall notify the applicant and the LSS/AOWE/LG/PE, as appropriate. This is a professional courtesy that allows the licensed professional the opportunity to correct the error. If the licensed professional chooses to correct the error, the LHD shall mark the common form as incomplete to allow time for the correction. However, if the licensed professional refuses to make the correction, the LHD shall document this notification and response. The applicant/owner shall be notified of the response, and the LHD shall proceed with the completeness review. The LHD shall not conduct any type of site visits or evaluations for the issuance of the Improvement Permit and/or Construction Authorization when submitted by an LSS/AOWE/LG/PE.

This Section amends language in G.S. 130A-335(a4) and (a5) to allow the LSS/AOWE/LG/PE to require the LHD to revoke or suspend an Improvement Permit and/or Construction Authorization submitted pursuant to (a2) of this statute “for cause.” “Cause” will exist if there are one or more grounds to revoke or suspend pursuant to G.S. 130A-23. Grounds to revoke include any violation of the Commission’s rules, violation of applicable laws and statutes, or a finding that the permit was issued based upon inaccurate or inadequate information. A request to revoke under this provision shall be made in writing to the LHD.

This Section amends language in G.S. 130A-335(a6) that allows a LHD to charge a fee for the Construction Authorization or the Improvement Permit/Construction Authorization combination of up to 40% of the normal fees for similar wastewater systems. Thus, a LHD may charge up to 100% of their normal fees for an Improvement Permit only, but if an application is submitted for a Construction Authorization or Improvement Permit/Construction Authorization combination, the LHD may only charge 40% of their normal fees.

This Section amends language in G.S. 130A-335(a7) that allows the issuer of the Construction Authorization pursuant to (a5) of this statute to delay wastewater system construction until a determination of site conditions is made to verify that site conditions remain unchanged. Site conditions include soil wetness, or grading or landscaping that impacts the soil evaluation, compacts the soil, or alters the landscape position. Language was also added to (a7) that requires the owner to contact the authorized agent and septic contractor and notify them “of any known changes to the site that alter the site evaluation or conditions.”

Finally, this Section amends language in G.S. 130A-335(a9) that removes the requirements in 15A NCAC 18A .1938(e) or (f) for State review of systems with a design flow greater than 3,000 gallons per day or any industrial process wastewater systems for submittals pursuant to (a2) of this statute. If a proposal is sent to the Department for review, the completeness review is not required to meet the 5-day deadline. The decision for State review shall be the responsibility of the licensed professional and not the LHD.

This Section is effective immediately, except for the fee changes which will take effect September 1, 2023.

Section 2, Modifications to G.S. 130A-335.1:

This Section removes the requirement of the visible marker for a septic tank’s access device in G.S. 130A-335.1(b)(5).

This Section is effective immediately.

Section 3, Modifications to G.S. 130A-336.1:

This Section amends language in G.S. 130A-336.1 by requiring the fee for an Engineered Option Permit (EOP) to be submitted with the Notice of Intent to Construct (NOI). In addition, this Section removes the requirement for a completeness review by the LHD. The fee for an EOP was changed from 30% of the cumulative total of the fees the LHD has established to obtain an Improvement Permit, a Construction Authorization, and an Operation Permit for wastewater systems under its jurisdiction, to no more than $35.00 for filing costs. The owner is now required to submit the Authorization to Operate (ATO) to the LHD and a letter documenting the acceptance of the EOP report, but that letter no longer needs to be notarized. In addition, the owner is required to submit a copy of the PE’s report and a copy of the operations and management program.

This Section amends language in G.S. 130A-336.1(o) by only allowing an EOP to be transferable to a new owner with consent of the PE and a contract between the PE and new owner.

This Section adds new language, G.S. 130A-336.1(o1) and (o2). G.S. 130A-336.1(o1) grants authority of revocation to the PE that issued the EOP. The PE may send written notice to the LHD, as well as the owner, the LSS, the LG, if any, the certified contractor, and the certified water pollution control system operator, if any. This includes revocation of both the NOI and the ATO.

G.S. 130A-336.1(o2) allows an owner the option to submit an application to the LHD for a malfunctioning EOP system. The LHD’s responsibility is to evaluate the site as they would for a new septic system and issue both an Improvement Permit and a Construction Authorization, accordingly. Thus, best professional judgement shall not be used by the LHD for a malfunctioning EOP system. If the LHD determines that a site is unsuitable for a subsurface wastewater system in this scenario, the LHD shall submit a written report to the owner in accordance with 15A NCAC 18A .1937(m). For issuance of Notices of Violation and permanent pump and haul permits, please contact OSWP for guidance as needed. If a septic or pump tank needs replacing, or any other component outside of the nitrification field that is not considered maintenance, the LHD shall issue both an Improvement Permit and Construction Authorization but specifically state on the permit that the issuance is for the replacement of the wastewater system component only and has no impact on the nitrification field. The LHD shall not evaluate soils in the nitrification field in this scenario. A revocation is not required by law of the previously issued NOI or ATO. Additional repair area shall not be required.

This Section is effective immediately, except for the fee changes which will take effect September 1, 2023.

Section 4, Modifications to G.S. 130A-336.2:

This Section amends language in G.S. 130A-336.2 by requiring the fee for an AOWE permit to be submitted with the NOI. In addition, this Section removes the requirement for a completeness review by the LHD. The fee for an AOWE permit was changed from 30% of the cumulative total of the fees established for similar systems permitted by the LHD to no more than $35.00 for filing costs. The owner is now required to submit the ATO to the LHD but is no longer required to provide a notarized letter documenting the acceptance of the AOWE report. The owner shall only sign confirming acceptance and receipt of the AOWE report and submit this to the LHD, in addition to the AOWE’s report and a copy of the operations and management program.

This Section removes the responsibility for OSWP to develop the common form for AOWE permits and transfers this responsibility to the North Carolina On-Site Wastewater Contractors and Inspectors Certification Board.

This Section amends language in G.S. 130A-336.2(o) by only allowing an AOWE permit to be transferable to a new owner with consent of the AOWE and a contract between the AOWE and new owner.

This Section also adds new language, G.S. 130A-336.2(o1) and (o2). G.S. 130A-336.2(o1) grants authority of revocation to the AOWE that issued the AOWE permit. The AOWE may send written notice to the LHD, the owner, the LSS, the LG (if applicable), the certified contractor, and the certified water pollution control system operator (if applicable). This includes revocation of both the NOI and the ATO.

G.S. 130A-336.2(o2) allows an owner the option to submit an application to the LHD for a malfunctioning AOWE system. The LHD’s responsibility is to evaluate the site as they would for a new septic system and issue both an Improvement Permit and a Construction Authorization, accordingly. Thus, best professional judgement shall not be used by the LHD for a malfunctioning AOWE system. If the LHD determines that a site is unsuitable for a subsurface wastewater system in this scenario, the LHD shall submit a written report to the owner in accordance with 15A NCAC 18A .1937(m). For issuance of Notices of Violation and permanent pump and haul permits, please contact OSWP for guidance as needed. If a septic or pump tank needs replacing, or any other component outside of the nitrification field that is not considered maintenance, the LHD shall issue both an Improvement Permit and Construction Authorization but specifically state on the permit that the issuance is for the replacement of the wastewater system component only and has no impact on the nitrification field. The LHD shall not evaluate soils in the nitrification field in this scenario. A revocation is not required by law of the previously issued NOI or ATO. Additional repair area shall not be required.

This Section is effective immediately, except for the fee changes which will take effect September 1, 2023.

Section 5, Modifications to G.S. 130A-337:

This Section adds new language, G.S. 130A-337(a1), that allows an AOWE to contract with an applicant to conduct an inspection of a wastewater system installation and issue an Operation Permit, accordingly. The AOWE is required to provide written verification to the applicant that the system installation meets all of the conditions of the Improvement Permit and Construction Authorization, and the AOWE shall issue an as-built drawing with the Operation Permit that meets the standards and scale of the LHD that issued the Construction Authorization. The applicant shall submit these items to the LHD within two business days of receipt from the AOWE.

This Section also adds language to G.S. 130A-337(a1) that releases liability from the Department, the Department’s authorized agents, and the LHDs from any claims attributed to the wastewater system installation. The AOWE is responsible for ensuring that the wastewater system is installed in accordance with the Construction Authorization. However, the LHD retains the responsibility for the Improvement Permit and Construction Authorization.

This Section is effective immediately.

Section 6, Modifications to G.S. 130A-343:

This Section adds new language, G.S. 130A-343(h)(1) and (h)(2), which says: (1) that any Accepted wastewater system approval be limited to the manufacturer that submitted the petition and received the Accepted status from the Commission for Public Health (CPH) and (2) that the CPH, the Department, or any LHD may not “condition, delay, or deny the substitution of any Accepted wastewater system based on location of nitrification lines when all parts of the dispersal field can be installed within the approved initial dispersal field area while complying with all Commission rules.”

This Section is effective immediately and applies retroactively to any wastewater system approvals issued by the CPH.

Section 8.1, Modifications to G.S. 160D-1110:

This Section adds new language, G.S. 160D-1110(h1), which disallows local governments to withhold a building permit on a project when there’s no increase in design daily flow or wastewater strength to an existing wastewater system if an owner submits an on-site wastewater existing system inspection exemption affidavit. This affidavit should be submitted to the local Inspections department, not the LHD.

This affidavit must be created and distributed by the Building Code Council by October 1, 2023.

Section 9.5, Modifications to G.S. 87-97:

This Section removes G.S. 87-97(b1) which required a LHD to notify building inspections when a well permit was issued, and allowed building inspections to conduct an inspection of the trench from the well to the house without the well contractor present. This Section now allows the well contractor to cover the trench without an inspection.

This Section is effective immediately.

Section 10.1, Modifications to G.S. 90A-51 through 53 and G.S. 90A-63, Adds G.S. 90A-53.1 and 90A53.2:

This Section adds an Environmental Health Associate (EHA) that will be allowed to permit and inspect private water wells, any Type II or III onsite wastewater system, including system layouts and existing system inspections, and inspect migrant housing. An EHA is allowed to carry out other duties in Environmental Health, also, but these listed here only affect Onsite Water Protection.

An EHA is required to attend CIT, must be authorized by the Department, and must be registered by the Board of Environmental Health Specialist Examiners. An EHA is also required to obtain continuing education each year as required by the Board.

This Section is effective May 1, 2024.

Section 12, Effective date of fees:

This Section applies to Sections 1, 3, and 4 of this Act and requires that the fees established in these Sections take effect on September 1, 2023.

Terminology Guidance:

For the sake of consistency and clarity, the following terms are recommended for use throughout the state:

LHD Reporting Requirements:

All LHDs shall report all private option permitting in their monthly activity reports to the OSWP, including permits issued in accordance with G.S. 130A-335(a2). Large systems (>3,000 GPD, unreduced) and Industrial Process Wastewater systems (IPWW) shall be reported to OSWP as these system types are required to be reported to the Environmental Protection Agency (EPA).

LHDs are no longer required to send copies of NOIs and ATOs to OSWP unless they are large systems (>3,000 GPD, unreduced) or IPWW.

Common Form:

A common form has been developed by OSWP in accordance with Section 1 of Session Law 2023-90, G.S. 130A-335(a3) and (a5). This common form is to be used as the Improvement Permit and/or the Construction Authorization. This common form is not meant to be an application for permits. However, OSWP has developed an application page that, in conjunction with the common form, can serve as the application for an Improvement Permit and/or Construction Authorization. Please keep in mind that this application page is not required to be accepted by the LHD, but it is recommended for consistency statewide.

Both the common form and application page can be found at the end of this position statement and can also be found on OSWP’s website.

Private Permitting Quick Summary:

NOTE: Position statements are policy documents intended to clarify how to interpret or enforce a law or rule. They are not enforceable on their own but are intended to promote uniform interpretation and enforcement of the underlying law or rule.

[SEE PDF]