October 29, 1979
Subject:
Health; Sewage Disposal Rules; Relationship between State and local rules
Requested By:
Stacy Covil Head, Sanitation Branch Division of Health Services
Question:
What is the realtionship between the sewage disposal rules promulgated by the Commission for Health Services and those promulgated by local boards of health?
Conclusion:
The relationship is described below.
The Commission for Health Services is authorized by G.S. 130-160(a) to adopt rules governing sewage disposal systems with 3000 gallons or less design capacity which do not discharge to the surface waters. Local health boards, pursuant to G.S. 130-17(b), have also adopted rules governing sewage disposal systems. This opinion will discuss the relationship between the sewage disposal rules of the Commission and of the local health boards.
The Ground Absorption Sewage Disposal System Act of 1973, codified as G.S. 130-166.22 et. seq., established an enforcement mechanism, based on local health board rules under G.S. 130-17(b), for regulation of ground absorption sewage disposal systems. The heart of the program is the requirement of an improvements permit before construction is commenced and a certificate of completion before the dwelling is occupied. The scope of the Act is limited to permanent structures and mobile homes intended for use as homes and living quarters. See our Opinion, dated May 28, 1974, to Mr. Ben Eaton (43 N.C.A.G. 410). On the other hand, the rules of the Commission for Health Services under G.S. 130-160 apply to any single or multiple-family residence, place of business or place of public assembly.
The relationship of the State and local rules is established by G.S. 130-160(b) and 130-170(b). If the Commission finds that local sewage disposal rules are substantially equivalent to the Commission’s rules and are sufficient to safeguard the public health, the local rules may be enforced only as a supplement to the State rules where either the local rules deal with a subject that is not regulated by the State rules or a peculiar local condition or circumstance or an emergency mandates a more stringent local requirement than specified in the State rules.
10 N.C.A.C. 10A.1915 of the State sewage disposal rules requires the issuance of a written permit by the local health department before the installation, repair or renovation of a sewage disposal system. As described in our recent Opinion, dated August 13, 1979, to Dr. Thomas R. Dundon (49 N.C.A.G. 12), the local health departments enforce the State sewage disposal rules under the direction of the Department of Human Resources. The 1915 permit is required for residences, businesses and places of public assembly. The improvements permit under G.S. 130-166.25, however, is required only for residences. Therefore, where the local health department is enforcing supplemental rules pursuant to G.S. 130-17(b), two permits are required for residences. (The two permits may be printed on the same paper.) Where the local health board rules have been approved under G.S. 130-160(b), only a local permit is required for residences as well as businesses and places of public assembly.
Where the local health department is enforcing the State sewage disposal rules, appeal of any action by the local health department is to a hearing officer of the Department of Human Resources and is governed by the provisions of the Administrative Procedure Act, G.S. 150A-1 et seq. Where the local health department is enforcing local rules approved under G.S. 130-17(b), appeal is to the local health board pursuant to G.S. 130-166.29 for residences or as otherwise provided in the local regulations for businesses and places of public assembly.
Finally, where the local health department is enforcing State sewage disposal rules, the local sanitarians are required to be the authorized representatives of the Department of Human Resources. See our Opinion to Dr. Thomas R. Dundon, supra. Conversely, if the local health department is enforcing its own rules, there is no requirement that the sanitarians be authorized representatives of the Department of Human Resources.
Rufus L. Edmisten Attorney General
Robert R. Reilly Assistant Attorney General