SENATE BILL NO. 433

INTRODUCED BY D. ECK

A BILL FOR AN ACT ENTITLED: "AN ACT MODIFYING AND CLARIFYING LOCAL BOARD OF HEALTH AUTHORITY UNDER THE LAWS RELATING TO SANITATION IN SUBDIVISIONS; ESTABLISHING REQUIREMENTS RELATING TO INSPECTION PRIOR TO REVIEW OF SEWAGE SYSTEMS AND INSTALLATION OF SEWAGE SYSTEMS; AUTHORIZING ADDITIONAL SUBDIVISION REVIEW BY LOCAL BOARDS OF HEALTH; ESTABLISHING PROCEDURES FOR HALTING CONSTRUCTION OF SEWAGE DISPOSAL OR WATER SUPPLY SYSTEMS UNDER CERTAIN CONDITIONS; REQUIRING LOCAL BOARD OF HEALTH REVIEW OF PRELIMINARY PLANS FOR ONSITE SEWAGE DISPOSAL; AUTHORIZING LOCAL BOARDS OF HEALTH TO ASSESS FEES TO CONDUCT DUTIES UNDER THE LAWS RELATING TO SANITATION IN SUBDIVISIONS; AMENDING SECTIONS 50-2-116, 76-4-104, 76-4-107, 76-4-108, 76-4-125, AND 76-4-128, MCA; AND PROVIDING AN APPLICABILITY DATE."

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

NEW SECTION. Section 1. Installation inspection. Before commencing operation of an individual or multifamily sewage system, a person who owns or controls a parcel of land that has been approved for the installation of an individual or multiple family sewage system pursuant to this chapter shall:

(1) cause the system to be inspected by a registered sanitarian, a registered professional engineer, or a qualified individual designated by the local board of health; and

(2) except when the system has been inspected by a representative of the local board of health, file with the local board of health a certification from the person who inspected the system as provided in subsection (1) that states that the system has been installed in compliance with approved plans and specifications and any conditions of approval.

Section 2. Section 50-2-116, MCA, is amended to read:

"50-2-116. Powers and duties of local boards. (1) Local boards shall:

(a) appoint a local health officer who is a physician or a person with a master's degree in public health or the equivalent and with appropriate experience, as determined by the department, and shall fix the health officer's salary;

(b) elect a presiding officer and other necessary officers;

(c) employ necessary qualified staff;

(d) adopt bylaws to govern meetings;

(e) hold regular meetings quarterly and hold special meetings as necessary;

(f) supervise destruction and removal of all sources of filth that cause disease;

(g) guard against the introduction of communicable disease;

(h) supervise inspections of public establishments for sanitary conditions;

(i) subject to the provisions of 50-2-130, adopt necessary regulations that are not less stringent than state standards for the control and disposal of sewage from private and public buildings that is not regulated by Title 75, chapter 6, or Title 76, chapter 4. The regulations must describe standards for granting variances from the minimum requirements that are identical to standards promulgated by the board of environmental review and must provide for appeal of variance decisions to the department as required by 75-5-305.

(2) Local boards may:

(a) quarantine persons who have communicable diseases;

(b) require isolation of persons or things that are infected with communicable diseases;

(c) furnish treatment for persons who have communicable diseases;

(d) prohibit the use of places that are infected with communicable diseases;

(e) require and provide means for disinfecting places that are infected with communicable diseases;

(f) accept and spend funds received from a federal agency, the state, a school district, or other persons;

(g) contract with another local board for all or a part of local health services;

(h) reimburse local health officers for necessary expenses incurred in official duties;

(i) abate nuisances affecting public health and safety or bring action necessary to restrain the violation of public health laws or rules;

(j) adopt necessary fees to administer regulations for the control and disposal of sewage from private and public buildings;

(k) adopt rules that do not conflict with rules adopted by the department:

(i) for the control of communicable diseases;

(ii) for the removal of filth that might cause disease or adversely affect public health;

(iii) subject to the provisions of 50-2-130, on sanitation in public buildings that affects public health;

(iv) for heating, ventilation, water supply, and waste disposal in public accommodations that might endanger human lives;

(v) subject to the provisions of 50-2-130, for the maintenance of sewage treatment systems that do not discharge an effluent directly into state waters and that are not required to have an operating permit as required by rules adopted under 75-5-401;

(vi) for the regulation, as necessary, of the practice of tattooing, which may include registering tattoo artists, inspecting tattoo establishments, adopting fees, and also adopting sanitation standards that are not less stringent than standards adopted by the department pursuant to 50-1-202. For the purposes of this subsection, "tattoo" means making permanent marks on the skin by puncturing the skin and inserting indelible colors.

(l) except for costs reimbursed by the department of environmental quality pursuant to 76-4-128, adopt fees to pay for the costs of conducting its duties under Title 76, chapter 4.

(3) Fees adopted pursuant to this section must be deposited with the county treasurer."

Section 3. Section 76-4-104, MCA, is amended to read:

"76-4-104. Rules for administration and enforcement. (1) The department shall, subject to the provisions of 76-4-135, adopt reasonable rules, including adoption of sanitary standards, necessary for administration and enforcement of this part.

(2) The rules and standards must provide the basis for approving subdivision plats for various types of public and private water, sewage, and solid waste disposal facilities and must be related to:

(a) size of lots;

(b) contour of land;

(c) porosity of soil;

(d) ground water level;

(e) distance from lakes, streams, and wells;

(f) type and construction of private water and sewage facilities; and

(g) other factors affecting public health and the quality of water for uses relating to agriculture, industry, recreation, and wildlife.

(3) (a) Except as provided in subsection (5), the rules must provide for the review of divisions of land by a local board of health, as described in Title 50, chapter 2, part 1.

(b) The local board of health may review all divisions of land or only minor subdivisions that create five or fewer parcels.

(c) The local board of health may elect to review any or all of the items listed under subsection (6) if the local board of health employs a registered sanitarian or a registered professional engineer and if the department certifies under subsection (4) that the local board is competent to review each item.

(d) The rules must provide for reimbursement of local boards of health for review of subdivisions.

(e) The local board of health may consider the cumulative impacts of subdivisions in its review of subdivisions under this chapter.

(4) The department shall also adopt standards and procedures for certification and maintaining certification to ensure that a local board of health is competent to review divisions of land as provided in subsection (3).

(5) The department shall review divisions of land if:

(a) a proposed division of land lies within more than one jurisdictional area and the respective governing bodies are in disagreement concerning approval of or conditions to be imposed on the proposed subdivision; or

(b) the local board of health elects not to be certified.

(6) The rules must further provide for:

(a) providing the reviewing authority with a copy of the plat and other documentation showing the layout or plan of development, including:

(i) total development area; and

(ii) total number of proposed dwelling units;

(b) adequate evidence that a water supply that is sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed;

(c) evidence concerning the potability of the proposed water supply for the subdivision;

(d) adequate evidence that a sewage disposal facility is sufficient in terms of capacity and dependability;

(e) standards and technical procedures applicable to storm drainage plans and related designs, in order to ensure proper drainage ways;

(f) standards and technical procedures applicable to sanitary sewer plans and designs, including soil percolation testing and required percolation rates and site design standards for on-lot sewage disposal systems when applicable;

(g) standards and technical procedures applicable to water systems;

(h) standards and technical procedures applicable to solid waste disposal;

(i) evidence to establish that, if a public sewage disposal system is proposed, provision has been made for the system and, if other methods of sewage disposal are proposed, evidence that the systems will comply with state and local laws and regulations that are in effect at the time of submission of the preliminary or final plan or plat.

(7) If the reviewing authority is a local board of health, it shall, upon approval of a division of land under this part, notify the department of the approval and submit to the department a copy of the approval statement.

(8) Review and certification or denial of certification that a division of land is not subject to sanitary restrictions under this part may occur only under those rules in effect at the time plans and specifications are submitted to the department, except that in cases in which current rules would preclude the use for which the lot was originally intended, the applicable requirements in effect at the time the lot was recorded must be applied. In the absence of specific requirements, minimum standards necessary to protect public health and water quality apply.

(9) The reviewing authority may not deny or condition a certification that a division of land is not subject to sanitary restrictions under this part unless it provides a written statement to the applicant detailing the circumstances of the certification denial or condition imposition. The statement must include:

(a) the reason for the denial or condition imposition;

(b) the evidence that justifies the denial or condition imposition; and

(c) information regarding the appeal process for the denial or condition imposition."

Section 4. Section 76-4-107, MCA, is amended to read:

"76-4-107. Authority to inspect and monitor -- certification. (1) In order to carry out the objectives of this part, to monitor the installation of sewage disposal and water supply systems, and to prevent the occurrence of water pollution problems associated with subdivision development, the reviewing authority or a local board of health whenever any water supply or sewage disposal system is proposed or has been constructed may:

(a) enter upon any public or private property, at reasonable times and after presentation of appropriate credentials by an authorized representative of the reviewing authority or a local board of health, to inspect the systems in order to ensure that the plans and specifications approved for the system have been adhered to and that the provisions of this part, rules, or orders are being satisfied;

(b) require as a condition of approval that records concerning the operation of a sewage disposal or water supply system be maintained or that monitoring equipment or wells be installed, used, and maintained for the collection of data related to water quality.

(2) The department shall notify the local board of health whenever it conducts an inspection pursuant to this section. A representative of the local board of health may accompany department personnel when the inspection is conducted.

(3) The reviewing authority shall require certification from a registered professional engineer that a public water supply system or a public sewage disposal system has been constructed according to approved specifications.

(4) A local board of health may require an installation permit prior to the construction, repair, replacement, or alteration of a sewage disposal system to ensure that the system is installed according to the plans and specifications approved by the department.

(5) If an inspection conducted under this section reveals that compliance with the approved plans and specifications may endanger public health or cause pollution of state waters, the entity conducting the inspection shall order that construction be halted. If the inspection was conducted by a local board of health, the board shall immediately notify the department. If the department determines that compliance with the approved plans and specifications will endanger public health or cause pollution of state waters, the owner of the property shall submit revised plans and specifications for the system to the department. The reviewing authority shall review those plans and specifications according to the rules adopted pursuant to 76-4-104."

Section 5. Section 76-4-108, MCA, is amended to read:

"76-4-108. Enforcement. (1) If the reviewing authority has reason to believe that a violation of this part or a rule made under it has occurred, it may have written notice served personally or by mail to the last-known address of the alleged violator or the violator's agent. The notice must state the provision alleged to be violated, the facts alleged to constitute the violation, the corrective action required by the reviewing authority, and the time within which the action is to be taken. For the purpose of this part, service by mail is complete on the date of mailing. The alleged violator may, no later than 30 days after service of a notice under this section, request a hearing before the reviewing authority or the board. If a request is filed, a hearing must be held within a reasonable time.

(2) In addition to or instead of issuing an order, the reviewing authority may initiate appropriate action to compel compliance with this part.

(3) The provisions of this part may be enforced by a reviewing authority other than the department or board only for those subdivisions or facilities for subdivisions reviewed pursuant to 76-4-104(3). If a local reviewing authority fails to adequately enforce the provisions of this part, the department or the board may compel compliance with this part under the provisions of this section.

(4) When a local reviewing authority exercises the authority delegated to it by this section, the local reviewing authority shall accept legal responsibility for its actions under this part.

(5) If a violation of this part is found to exist, a reviewing authority may revoke a certificate of subdivision approval and reimpose sanitary restrictions on a subdivision, following a hearing before the reviewing authority under this section."

Section 6. Section 76-4-125, MCA, is amended to read:

"76-4-125. Review of development plans -- land divisions excluded from review. (1) Plans and specifications of a subdivision, as defined in this part, must be submitted to the reviewing authority, and the reviewing authority shall indicate by certificate that it has approved the plans and specifications and that the subdivision is not subject to a sanitary restriction. The plan review by the reviewing authority must be as follows:

(a) Subject to the requirements of subsection (1)(b), the developer shall present to the reviewing authority a preliminary plan of the proposed development, whatever information the developer feels necessary for its subsequent review, and information required by the reviewing authority. Whenever the proposed development is subject to review under chapter 3, the developer may submit the preliminary plan required under this section at any time after submittal of a preliminary plat pursuant to chapter 3.

(b) If a preliminary plan for the proposed development includes onsite sewage disposal facilities and the local board of health is not a certified reviewing authority, the developer shall notify the local board of health or its designated agent prior to submittal of the preliminary plan to the reviewing authority. Prior to submittal of the preliminary plans and specifications to the reviewing authority, the local board of health or its designated agent may conduct an inspection to determine whether the site complies with standards adopted for sewage disposal pursuant to 76-4-104(6). The local board of health or its designated agent may make recommendations to the reviewing authority regarding the installation of water supplies, storm drainage systems, and sewage disposal facilities.

(c) The reviewing authority shall give final action of the proposed plan within 60 days unless an environmental impact statement is required, at which time this deadline may be increased to 120 days.

(2) A subdivision excluded from the provisions of chapter 3 must be submitted for review according to the provisions of this part, except that the following divisions or parcels, unless the exclusions are used to evade the provisions of this part, are not subject to review:

(a) the exclusions cited in 76-3-201 and 76-3-204;

(b) divisions made for the purpose of acquiring additional land to become part of an approved parcel, provided that a dwelling or structure requiring water or sewage disposal may not be erected on the additional acquired parcel and that the division does not fall within a previously platted or approved subdivision;

(c) divisions made for purposes other than the construction of water supply or sewage and solid waste disposal facilities as the department specifies by rule; and

(d) subject to the provisions of subsection (3), a remainder of an original tract created by segregating a parcel from the tract for purposes of transfer, if:

(i) the remainder is served by a public or multifamily sewage system approved before January 1, 1997, pursuant to local regulations or this chapter; or

(ii) the remainder is 1 acre or larger and has an individual sewage system that was constructed prior to April 29, 1993, and, if required when installed, was approved pursuant to local regulations or this chapter.

(3) Consistent with the applicable provisions of 50-2-116(1)(i), a local health officer may require that, prior to the transfer of the parcel to be segregated from the remainder referenced in subsection (2)(d)(ii), the remainder include acreage or features sufficient to accommodate a replacement drainfield."

Section 7. Section 76-4-128, MCA, is amended to read:

"76-4-128. Delegation of department review to local government. (1) The department shall delegate to a local government the authority to review a subdivision or certain facilities proposed for a subdivision under this part when the local government has qualified personnel to adequately review the facilities proposed to be reviewed.

(2) When a local government has conducted a review of a subdivision or facilities proposed for a subdivision , it shall advise the department of its approval or disapproval . The department shall, within 10 days after receiving the approval or disapproval of the local government, make a final decision on the subdivision. The decision of the department may not overturn the decision of the local government on the issue reviewed by the local government.

(3) In delegating authority pursuant to this section, the department shall enter into an agreement with the local government. The department shall agree to transfer not less than $15 of the fee for each parcel collected pursuant to 76-4-105 to the local government for the review of subdivisions containing five or fewer parcels."

NEW SECTION. Section 8. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 76, chapter 4, part 1, and the provisions of Title 76, chapter 4, part 1, apply to [section 1].

NEW SECTION. Section 9. Applicability. [This act] applies to divisions of land that are proposed as subdivisions after the effective date of this act.

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