Chapter 551 Oregon Laws 1999

Session Law

AN ACT

SB 335

Relating to statewide on-site sewage programs; creating new provisions; amending ORS 454.605, 454.610, 454.640, 454.655, 454.662, 454.665, 454.675, 454.695, 454.705, 454.725, 454.745, 454.755 and 701.138; and repealing ORS 454.735, 454.775 and 454.780.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 1999 Act is added to and made a part of ORS 454.605 to 454.745.

SECTION 2. It is the public policy of the State of Oregon to encourage improvements to, maintenance of and innovative technology for subsurface and alternative sewage disposal systems and nonwater-carried sewage disposal facilities consistent with the protection of the public health and safety and the quality of the waters of this state.

SECTION 3. ORS 454.605 is amended to read:

454.605. As used in ORS 454.605 to 454.745, unless the context requires otherwise:

(1) "Absorption facility" means a system of open-jointed or perforated piping, alternate distribution units or other seepage systems for receiving the flow from septic tanks or other treatment units and designed to distribute effluent for oxidation and absorption by the soil within the zone of aeration.

(2) "Alternative sewage disposal system" means a system incorporating all of the following:

(a) Septic tank or other sewage treatment or storage unit; and

(b) Disposal facility or method consisting of other than an absorption facility but not including discharge to public waters of the State of Oregon.

[(3) "Building sewer" means that part of the system of drainage piping which conveys sewage into a septic tank, cesspool or other treatment unit that begins five feet outside the building or structure within which the sewage originates.]

[(4) "Cesspool" means a receptacle which receives the discharge of sewage from a sanitary drainage system and which is so designed and constructed as to separate solids from liquids, digest organic matter during a period of detention and allow the liquids to flow into the soil within the zone of aeration through perforations in the side wall of the receptacle.]

[(5)] (3) "Construction" includes installation, alteration[,] or repair [or extension].

(4) "Contract agent" means a local unit of government that has entered into an agreement with the Department of Environmental Quality pursuant to ORS 454.725.

[(6)] (5) "Effluent sewer" means that part of the system of drainage piping that conveys treated sewage from a septic tank or other treatment [facility] unit into an absorption facility.

[(7)] (6) "Governmental unit" means the state or any county, municipality or other political subdivision, or any agency thereof.

(7) "Local unit of government" means any county or municipality.

(8) "Nonwater-carried sewage disposal facility" includes, but is not limited to, pit privies, vault privies and chemical toilets.

(9) "Public health hazard" means a condition whereby there are sufficient types and amounts of biological, chemical or physical, including radiological, agents relating to water or sewage which are likely to cause human illness, disorders or disability. These include, but are not limited to, pathogenic viruses, bacteria, parasites, toxic chemicals and radioactive isotopes.

[(10) "Seepage pit" is a type of absorption facility which is a covered pit with open-jointed lining through which septic tank effluent may seep or leach into surrounding ground.]

[(11)] (10) "Septic tank" means a watertight receptacle which receives the discharge of sewage from a sanitary drainage system and which is so designed and constructed as to separate solids from liquids, digest organic matter during a period of detention and allow the liquids to discharge to another treatment unit or into the soil outside of the tank through an absorption facility.

[(12)] (11) "Sewage" means domestic water-carried human and animal wastes, including kitchen, bath and laundry wastes from residences, buildings, industrial establishments or other places, together with such ground water infiltration, surface waters or industrial waste as may be present.

[(13)] (12) "Sewage disposal service" means:

(a) The construction of subsurface sewage disposal systems, alternative sewage disposal systems or any part thereof.

(b) The pumping out or cleaning of subsurface sewage disposal systems, alternative sewage disposal systems or nonwater-carried sewage disposal facilities.

(c) The disposal of materials derived from the pumping out or cleaning of subsurface sewage disposal systems, alternative sewage disposal systems or nonwater-carried sewage disposal facilities.

(d) Grading, excavating and earth-moving work connected with the operations described in paragraph (a) of this subsection[, except streets, highways, dams, airports or other heavy construction projects and except earth-moving work performed under the supervision of a builder or contractor in connection with and at the time of the construction of a building or structure].

[(14)] (13) "Subsurface sewage disposal system" means a cesspool or the combination of a septic tank or other treatment unit and effluent sewer and absorption facility.

[(15)] (14) "Zone of aeration" means the unsaturated zone that occurs below the ground surface and the point at which the upper limit of the water table exists.

SECTION 4. ORS 454.610 is amended to read:

454.610. (1) As used in this section "grey water" means any [household] domestic sewage other than toilet and garbage wastes, including shower and bath waste water, kitchen waste water and laundry wastes.

(2) Nothing in ORS 454.605 to 454.745 except ORS 454.645 shall prohibit the discharge of grey water if:

(a) Soil and site conditions for such grey water conform to the rules of the Department of Environmental Quality regarding standard subsurface sewage disposal systems or alternative sewage disposal systems, except that such [system] systems may use two-thirds the normal size surface area for a drainfield and shall be preceded by a [pretreatment] treatment facility such as, but not limited to, a septic tank; or

(b) Such grey water is discharged into an existing subsurface sewage disposal system or alternative sewage disposal system which is functioning satisfactorily, or a public sewage system which serves the dwelling from which such grey water is derived.

SECTION 5. ORS 454.640 is amended to read:

454.640. [(1)] In order to protect the health, safety and welfare of its citizens, a [county] contract agent may enforce, consistent with state enforcement, standards for subsurface sewage disposal systems, alternative sewage disposal systems and nonwater-carried sewage disposal facilities established in ORS 454.605 to 454.745 or in rules of the Environmental Quality Commission.

[(2) Nothing in this section is intended to prohibit contractual arrangements between a county and the Department of Environmental Quality under ORS 454.725.]

SECTION 6. ORS 454.655 is amended to read:

454.655. (1) Except as otherwise provided in ORS 454.675, without first obtaining a permit from the Department of Environmental Quality, no person shall construct or install a subsurface sewage disposal system, alternative sewage disposal system or part thereof. However, a person may undertake emergency repairs [of a subsurface or alternative sewage disposal] limited to replacing minor broken components of the system without first obtaining a permit [if the person obtains a permit within three days after the emergency repairs are begun].

(2) A permit required by subsection (1) of this section shall be issued only [to a person licensed under ORS 454.695, or to] in the name of an owner or contract purchaser in possession of the land. However, a permit issued to an owner or contract purchaser carries the condition that the owner or purchaser or regular employees or a person licensed under ORS 454.695 perform all labor in connection with the construction of the subsurface or alternative sewage disposal system.

(3) The applications for a permit required by this section must be accompanied by the [nonrefundable] permit [fee] fees prescribed in ORS 454.745.

(4) After receipt of an application and [permit fee] all requisite fees, subject to ORS 454.685, the department shall issue a permit if it finds that the proposed construction will be in accordance with the rules of the Environmental Quality Commission. No permit shall be issued if a community or area-wide sewerage system is available which will satisfactorily accommodate the proposed sewage discharge.

(5)(a) Unless weather conditions or distance and unavailability of transportation prevent the issuance of a permit within 20 days of the receipt of the application and [permit fee] fees by the department, the department shall issue or deny the permit within 20 days after such date. If such conditions prevent issuance or denial within 20 days, the department shall notify the applicant in writing of the reason for the delay and shall issue or deny the permit within 60 days after such notification.

(b) If within 20 days of the date of the application the department fails to issue or deny the permit or to give notice of conditions preventing such issuance or denial, the permit shall be considered to have been issued.

(c) If within 60 days of the date of the notification referred to in paragraph (a) of this subsection, the department fails to issue or deny the permit, the permit shall be considered to have been issued.

(6) Upon request of any person, the department may issue a report, described in ORS 454.755 (1), of evaluation of site suitability for installation of a subsurface or alternative sewage disposal system or nonwater-carried sewage disposal facility. The application for such report must be accompanied by the [nonrefundable fee] fees prescribed in ORS 454.755.

(7) With respect to an application for a permit for the construction and installation of a septic tank and necessary effluent sewer and absorption facility for a single family residence or for a farm related activity on a parcel of 10 acres or more described in the application by the owner or contract purchaser of the parcel, the Department of Environmental Quality:

(a) Within the period allowed by subsection (5)(a) of this section after receipt by it of the application, shall issue the permit or deliver to the applicant a notice of intent to deny the issuance of the permit;

(b) In any notice of intent to deny an application, shall specify the reasons for the intended denial based upon the rules of the Environmental Quality Commission for the construction and installation of a septic tank and necessary effluent sewer and absorption facility or based upon the factors included in ORS 454.685 (2)(a) to (j);

(c) Upon request of the applicant, shall conduct a hearing in the manner provided in ORS 454.635 (4) and (5) on the reasons specified in a notice of intent to deny the application with the burden of proof upon the department to justify the reasons specified; and

(d) In the case of issuance of a permit, may include as a condition of the permit that no other permit for a subsurface sewage disposal system or alternative sewage disposal system shall be issued for use on the described parcel while the approved septic tank, effluent sewer and absorption facility are in use on the described parcel.

SECTION 7. ORS 454.662 is amended to read:

454.662. (1) Except as provided in subsection (2) of this section, each application for a variance submitted pursuant to ORS 454.657 must be accompanied by a [nonrefundable] fee, the amount of which shall be determined by a fee structure adopted by [rule of] the Environmental Quality Commission [but not to exceed $225 per application] as described in ORS 454.745. The moneys received are continuously appropriated to meet administrative expenses of the hearings and appeals.

(2) Notwithstanding subsection (1) of this section, an applicant for a variance under this section is not required to pay the [nonrefundable] fee specified in subsection (1) of this section if, at the time of filing the application, the applicant:

(a) Is 65 years of age or older;

(b) Is a resident of this state; and

[(3) Notwithstanding subsection (1) of this section, the Department of Environmental Quality or its contract agent may refund a fee collected under subsection (1) of this section if the applicant withdraws the application before the department or its contract agent has commenced field work or any other substantial work associated with the application.]

SECTION 8. ORS 454.665 is amended to read:

454.665. (1) Upon completing the construction for which a permit has been issued under ORS 454.655, the permit holder shall notify the Department of Environmental Quality. The department may at its own election inspect the construction to determine if it complies with the rules of the Environmental Quality Commission. For that construction inspected by the department, the department shall issue a certificate of satisfactory completion to the permit holder unless the construction does not comply with such rules. If the construction does not comply with such rules, the department shall notify the permit holder and shall require satisfactory completion before issuing the certificate. Failure to meet the requirements for satisfactory completion within a reasonable time constitutes a violation of ORS 454.605 to 454.745.

(2) If the inspection authorized under subsection (1) of this section is not made within seven days after notification by the permit holder, a certificate of satisfactory completion shall be considered to have been issued. When feasible the department shall notify the party whose work is to be inspected, whether the department will be able to make such inspection within the seven-day requirement of this subsection.

(3) No person shall operate or use any subsurface sewage disposal system, alternative sewage disposal system or part thereof unless a certificate of satisfactory completion has been issued for the construction for which a permit was issued under ORS 454.655.

(4) Whenever the department finds cause to revoke or refuses to issue a certificate of satisfactory completion pursuant to this section, the permit holder may appeal the decision in accordance with the provisions of ORS 183.310 to 183.550.

SECTION 9. ORS 454.675 is amended to read:

454.675. Subsurface sewage disposal systems, alternative sewage disposal systems or nonwater-carried sewage disposal facilities or parts thereof which were constructed prior to January 1, 1974, but which are not creating a public health hazard or causing water pollution shall not be required to conform to the [rules] construction standards adopted subsequent to their initial construction. However, all alterations[,] or repairs [or extensions] of such systems or facilities or parts thereof shall be made in accordance with the rules of the Environmental Quality Commission.

SECTION 10. ORS 454.695 is amended to read:

454.695. (1) No person shall perform sewage disposal services or advertise or purport to be in the business of performing such services without first obtaining a license from the Department of Environmental Quality.

(2) Application for a license required by subsection (1) of this section shall be made in writing in a form prescribed by the department and shall include the following information:

(a) The name and address of the applicant and of the person responsible for supervising the services;

(b) The location of the business of the applicant and the name under which the business is conducted; and

(c) Such other information as the department considers necessary to determine the eligibility of the applicant for the license.

(3) Application for a license required under subsection (1) of this section must be accompanied by the [nonrefundable] license [fee] fees prescribed in ORS 454.745 and by the bond described in ORS 454.705.

(4) [Unless suspended or revoked at an earlier date, all licenses issued under this section expire on July 1 next following the date of issuance.] The Environmental Quality Commission shall establish by rule the term of a license issued under this section and a method for determining the expiration date for a license issued under this section. The commission may provide for staggered expiration dates for licenses issued under this section.

(5) The commission may adopt rules prescribing the qualifications, training and education requirements of sewage disposal service license holders and workers and the registration of sewage disposal service workers.

SECTION 11. ORS 454.705 is amended to read:

454.705. (1) An applicant for a license required by ORS 454.695 shall execute a bond in [the penal sum of $2,500 in] favor of the State of Oregon. The bond shall be in the amount established by rule by the Environmental Quality Commission and shall be executed by the applicant as principal and by a surety company authorized to transact a surety business within the State of Oregon as surety.

(2) The bond shall be filed with the Department of Environmental Quality and shall provide that:

(a) In performing sewage disposal services, the applicant shall comply with the provisions of ORS 454.605 to 454.745 and with the rules of the Environmental Quality Commission regarding sewage disposal services; and

(b) Any person injured by a failure of the applicant to comply with ORS 454.605 to 454.745 and with the rules of the commission regarding sewage disposal services shall have a right of action on the bond in the name of the person, provided that written claim of such right of action shall be made to the principal or the surety company within two years after the services have been performed[; and]

[(c) The maximum aggregate liability of the surety on the bond shall be $2,500].

(3) Every person licensed pursuant to ORS 454.695 shall deliver to each person for whom services requiring such license are performed, prior to the completion of such services, a written notice of the name and address of the surety company which has executed the bond required by this section and of the rights of the recipient of such services as provided by subsection (2) of this section.

SECTION 12. ORS 454.725 is amended to read:

454.725. (1) The Department of Environmental Quality may enter into agreements with local units of government for the local units to perform the duties of the department under ORS 454.635, 454.655, 454.665 and [454.695] 454.755.

[(2) If a fee is collected by a local unit of government performing duties under subsection (1) of this section, the department may disburse all or part thereof to the local unit.]

[(3)] (2) The Department of Environmental Quality may enter into [agreements with local units of government when the local units so request for the local units] an agreement with a local unit of government when the local unit of government requests to perform the variance duties of the department under ORS 454.657 and 454.660 subject to variance criteria specified in the agreement by the department. Each [county] local unit of government performing variance duties under an agreement may set and collect a [nonrefundable] variance application fee as provided in ORS 454.662. A fee collected by a [county] local unit of government under this subsection shall not exceed the [county's] cost to the local unit of government of performing the variance duties of the department.

SECTION 13. ORS 454.745 is amended to read:

454.745. [(1) Fees, not exceeding the following amounts, are established for services rendered and for permits and licenses issued under ORS 454.655 and 454.695 in accordance with the following schedule:]

[Subsurface or Alternative Maximum

Sewage Disposal System Fee

New Site Evaluation; first lot....................................... $120

Each additional lot evaluated

while on site........................................................... $100

Construction Installation Permit

(with favorable evaluation report)......................... $40

Alteration Permit........................................................ $25

Repair Permit............................................................. $25

Extension Permit........................................................ $25

Sewage Disposal Service

Business License.................................................... $100

Pumper Truck Inspection........................................... $25

Evaluation of Existing

System Adequacy................................................... $40

Annual Evaluation of Alternative

System (where required)........................................ $40

Annual Evaluation of Temporary

Manufactured Dwelling......................................... $25]

[(2) No fee shall be charged for an evaluation report requested on any proposed repair, alteration or extension of an existing subsurface sewage disposal system, alternative sewage disposal system or part thereof.]

[(3)] (1) [Notwithstanding any other provision of this section,] In conjunction with the rules adopted under ORS 454.615 and 454.625, the Environmental Quality Commission shall establish a schedule of application fees for services rendered, permits, reports, variances and licenses and for the registration of sewage disposal service license holders and workers. The fees shall be based upon actual costs for efficiently conducted minimum services, as developed by the Director of the Department of Environmental Quality.

(2) Each local unit of government that has entered into an agreement with the Department of Environmental Quality under ORS 454.725 may establish a schedule of application fees for services rendered, permits, reports and variances. The fees shall be based on actual costs for efficiently conducted minimum services, as developed by the local unit of government. Notwithstanding the authority to adopt a schedule of fees, no contract provided for under ORS 454.725 shall be entered into or continued when the total amount of fees collected by the local unit of government exceeds the total cost of the program for providing the services rendered [and], permits [and licenses], reports and variances issued under this section.

[(4) Notwithstanding the maximum fees established in subsection (1) of this section, the Environmental Quality Commission, upon request of the Director of the Department of Environmental Quality or of any county which pursuant to ORS 454.725 has entered into an agreement with the Department of Environmental Quality, may by rule increase maximum fees effective July 1, 1980, above the maximum levels established in subsection (1) of this section. Fee increases permitted by the commission shall be based upon actual costs for efficiently conducted minimum services as developed by the director or contract county. In addition to the fees listed in subsection (1) of this section, with approval of the Environmental Quality Commission, any agreement county may adopt fee schedules for services related to this program which are not specifically listed in subsection (1) of this section.]

[(5)] (3) [Notwithstanding the requirements of ORS 454.655 (3),] The department or its contract agent may refund all or a portion of a fee accompanying an application for a permit pursuant to ORS 454.655, a variance pursuant to ORS 454.662, a license pursuant to ORS 454.695 or [for] a report pursuant to ORS 454.755 if the applicant withdraws the application before the department or its contract agent has done any field work or other substantial review of the application.

[(6)] (4) Notwithstanding the requirements of ORS 454.655 (3) and 454.755 (1), the Environmental Quality Commission may waive a fee [contained] prescribed in subsection (1) of this section in the event a state of emergency is declared under ORS 401.055. The commission shall determine whether to waive a fee contained in subsection (1) of this section on a case-by-case basis. The commission may delegate the authority granted under this section to the director.

[(7)] (5) Fees collected under subsection (1) of this section shall be deposited in the State Treasury and credited to an account of the department. The moneys received are continuously appropriated to the department to carry out the requirements of ORS 454.605 to 454.745.

SECTION 14. ORS 454.755 is amended to read:

454.755. (1) Any person, upon application for any of the following actions by the Department of Environmental Quality, shall pay to the department a [nonrefundable] fee in the amount required for each lot or parcel:

(a) A report of evaluation of site suitability for a subsurface sewage disposal system, alternative sewage disposal system, nonwater-carried sewage disposal facility or a part thereof, pursuant to ORS 454.655; [or]

(b) A report of evaluation of adequacy of a sewage disposal method required prior to the approval of a plat of a subdivision, pursuant to ORS 92.090 (5)(c); or

(c) A report on any proposed repair or alteration of an existing subsurface sewage disposal system, alternative sewage disposal system, nonwater-carried sewage disposal facility or a part thereof. A person may apply for the permit required under ORS 454.655 (1) to alter or repair a system without obtaining this report.

[(2) Any person may request an evaluation report on any proposed repair, alteration or extension of an existing subsurface sewage disposal system, alternative sewage disposal system or part thereof, including but not limited to any repair, alteration or extension described in ORS 454.675. The department shall conduct such evaluation and issue a report of its findings without charge to the person requesting such evaluation.]

[(3)] (2) The fee paid for a report of evaluation of site suitability pursuant to subsection (1)(a) of this section shall entitle the applicant to as many site inspections as is necessary within 90 days from the date of the first site inspection to determine site suitability for a single home site. The department may require separate fees if it determines that the site inspections are for the purpose of determining site suitability for more than one home site.

SECTION 15. ORS 701.138 is amended to read:

701.138. (1) Every person offering to undertake or undertaking construction of building sewer piping [as defined in ORS 454.605 (3)] shall comply with the requirements of ORS chapter 701.

(2) Every person submitting a bid or a written estimate of the costs to construct building sewer piping shall provide to potential customers, prior to an agreement to perform, the following:

(a) The person's Construction Contractors Board registration number and category;

(b) The applicable bonding and liability coverage; and

(3) Any person registered under ORS 701.055 may install a building sewer after obtaining a permit for plumbing inspection under ORS 447.095.

(4) As used in this section, "building sewer" means that part of the system of drainage piping that conveys sewage into a septic tank, cesspool or other treatment unit that begins five feet outside the building or structure within which the sewage originates.

SECTION 16. ORS 454.755 is added to and made a part of ORS 454.605 to 454.745.

SECTION 17. ORS 454.735, 454.775 and 454.780 are repealed.

Approved by the Governor July 8, 1999

Filed in the office of Secretary of State July 8, 1999

Effective date October 23, 1999

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