Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. CS for SB 820
                                Barcode 335798                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/31/2012           .                                

       The Committee on Health Regulation (Jones) recommended the
    1         Senate Amendment 
    3         Delete lines 239 - 685
    4  and insert:
    5  rule occurs within 5 years after the approval of the system for
    6  construction but before the final approval of the system, the
    7  rules applicable and in effect at the time of construction
    8  approval apply at the time of final approval if fundamental site
    9  conditions have not changed between the time of construction
   10  approval and final approval.
   11         (z) A modification, replacement, or upgrade of an onsite
   12  sewage treatment and disposal system is not required for a
   13  remodeling addition to a single-family home if a bedroom is not
   14  added.
   16         (a) Beginning July 1, 2011, the department shall administer
   17  an onsite sewage treatment and disposal system evaluation
   18  program for the purpose of assessing the fundamental operational
   19  condition of systems and identifying any failures within the
   20  systems. The department shall adopt rules implementing the
   21  program standards, procedures, and requirements, including, but
   22  not limited to, a schedule for a 5-year evaluation cycle,
   23  requirements for the pump-out of a system or repair of a failing
   24  system, enforcement procedures for failure of a system owner to
   25  obtain an evaluation of the system, and failure of a contractor
   26  to timely submit evaluation results to the department and the
   27  system owner. The department shall ensure statewide
   28  implementation of the evaluation and assessment program by
   29  January 1, 2016.
   30         (b) Owners of an onsite sewage treatment and disposal
   31  system, excluding a system that is required to obtain an
   32  operating permit, shall have the system evaluated at least once
   33  every 5 years to assess the fundamental operational condition of
   34  the system, and identify any failure within the system.
   35         (c) All evaluation procedures must be documented and
   36  nothing in this subsection limits the amount of detail an
   37  evaluator may provide at his or her professional discretion. The
   38  evaluation must include a tank and drainfield evaluation, a
   39  written assessment of the condition of the system, and, if
   40  necessary, a disclosure statement pursuant to the department’s
   41  procedure.
   42         (d)1. Systems being evaluated that were installed prior to
   43  January 1, 1983, shall meet a minimum 6-inch separation from the
   44  bottom of the drainfield to the wettest season water table
   45  elevation as defined by department rule. All drainfield repairs,
   46  replacements or modifications to systems installed prior to
   47  January 1, 1983, shall meet a minimum 12-inch separation from
   48  the bottom of the drainfield to the wettest season water table
   49  elevation as defined by department rule.
   50         2. Systems being evaluated that were installed on or after
   51  January 1, 1983, shall meet a minimum 12-inch separation from
   52  the bottom of the drainfield to the wettest season water table
   53  elevation as defined by department rule. All drainfield repairs,
   54  replacements or modification to systems developed on or after
   55  January 1, 1983, shall meet a minimum 24-inch separation from
   56  the bottom of the drainfield to the wettest season water table
   57  elevation.
   58         (e) If documentation of a tank pump-out or a permitted new
   59  installation, repair, or modification of the system within the
   60  previous 5 years is provided, and states the capacity of the
   61  tank and indicates that the condition of the tank is not a
   62  sanitary or public health nuisance pursuant to department rule,
   63  a pump-out of the system is not required.
   64         (f) Owners are responsible for paying the cost of any
   65  required pump-out, repair, or replacement pursuant to department
   66  rule, and may not request partial evaluation or the omission of
   67  portions of the evaluation.
   68         (g) Each evaluation or pump-out required under this
   69  subsection must be performed by a septic tank contractor or
   70  master septic tank contractor registered under part III of
   71  chapter 489, a professional engineer with wastewater treatment
   72  system experience licensed pursuant to chapter 471, or an
   73  environmental health professional certified under chapter 381 in
   74  the area of onsite sewage treatment and disposal system
   75  evaluation.
   76         (h) The evaluation report fee collected pursuant to s.
   77  381.0066(2)(b) shall be remitted to the department by the
   78  evaluator at the time the report is submitted.
   79         (i) Prior to any evaluation deadline, the department must
   80  provide a minimum of 60 days’ notice to owners that their
   81  systems must be evaluated by that deadline. The department may
   82  include a copy of any homeowner educational materials developed
   83  pursuant to this section which provides information on the
   84  proper maintenance of onsite sewage treatment and disposal
   85  systems.
   87         (a) Department personnel who have reason to believe
   88  noncompliance exists, may at any reasonable time, enter the
   89  premises permitted under ss. 381.0065-381.0066, or the business
   90  premises of any septic tank contractor or master septic tank
   91  contractor registered under part III of chapter 489, or any
   92  premises that the department has reason to believe is being
   93  operated or maintained not in compliance, to determine
   94  compliance with the provisions of this section, part I of
   95  chapter 386, or part III of chapter 489 or rules or standards
   96  adopted under ss. 381.0065-381.0067, part I of chapter 386, or
   97  part III of chapter 489. As used in this paragraph, the term
   98  “premises” does not include a residence or private building. To
   99  gain entry to a residence or private building, the department
  100  must obtain permission from the owner or occupant or secure an
  101  inspection warrant from a court of competent jurisdiction.
  102         (b)1. The department may issue citations that may contain
  103  an order of correction or an order to pay a fine, or both, for
  104  violations of ss. 381.0065-381.0067, part I of chapter 386, or
  105  part III of chapter 489 or the rules adopted by the department,
  106  when a violation of these sections or rules is enforceable by an
  107  administrative or civil remedy, or when a violation of these
  108  sections or rules is a misdemeanor of the second degree. A
  109  citation issued under ss. 381.0065-381.0067, part I of chapter
  110  386, or part III of chapter 489 constitutes a notice of proposed
  111  agency action.
  112         2. A citation must be in writing and must describe the
  113  particular nature of the violation, including specific reference
  114  to the provisions of law or rule allegedly violated.
  115         3. The fines imposed by a citation issued by the department
  116  may not exceed $500 for each violation. Each day the violation
  117  exists constitutes a separate violation for which a citation may
  118  be issued.
  119         4. The department shall inform the recipient, by written
  120  notice pursuant to ss. 120.569 and 120.57, of the right to an
  121  administrative hearing to contest the citation within 21 days
  122  after the date the citation is received. The citation must
  123  contain a conspicuous statement that if the recipient fails to
  124  pay the fine within the time allowed, or fails to appear to
  125  contest the citation after having requested a hearing, the
  126  recipient has waived the recipient’s right to contest the
  127  citation and must pay an amount up to the maximum fine.
  128         5. The department may reduce or waive the fine imposed by
  129  the citation. In determining whether to reduce or waive the
  130  fine, the department must consider the gravity of the violation,
  131  the person’s attempts at correcting the violation, and the
  132  person’s history of previous violations including violations for
  133  which enforcement actions were taken under ss. 381.0065
  134  381.0067, part I of chapter 386, part III of chapter 489, or
  135  other provisions of law or rule.
  136         6. Any person who willfully refuses to sign and accept a
  137  citation issued by the department commits a misdemeanor of the
  138  second degree, punishable as provided in s. 775.082 or s.
  139  775.083.
  140         7. The department, pursuant to ss. 381.0065-381.0067, part
  141  I of chapter 386, or part III of chapter 489, shall deposit any
  142  fines it collects in the county health department trust fund for
  143  use in providing services specified in those sections.
  144         8. This section provides an alternative means of enforcing
  145  ss. 381.0065-381.0067, part I of chapter 386, and part III of
  146  chapter 489. This section does not prohibit the department from
  147  enforcing ss. 381.0065-381.0067, part I of chapter 386, or part
  148  III of chapter 489, or its rules, by any other means. However,
  149  the department must elect to use only a single method of
  150  enforcement for each violation.
  151         (6)(7) LAND APPLICATION OF SEPTAGE PROHIBITED.—Effective
  152  January 1, 2016, the land application of septage from onsite
  153  sewage treatment and disposal systems is prohibited. By February
  154  1, 2011, the department, in consultation with the Department of
  155  Environmental Protection, shall provide a report to the
  156  Governor, the President of the Senate, and the Speaker of the
  157  House of Representatives, recommending alternative methods to
  158  establish enhanced treatment levels for the land application of
  159  septage from onsite sewage and disposal systems. The report
  160  shall include, but is not limited to, a schedule for the
  161  reduction in land application, appropriate treatment levels,
  162  alternative methods for treatment and disposal, enhanced
  163  application site permitting requirements including any
  164  requirements for nutrient management plans, and the range of
  165  costs to local governments, affected businesses, and individuals
  166  for alternative treatment and disposal methods. The report shall
  167  also include any recommendations for legislation or rule
  168  authority needed to reduce land application of septage.
  169         Section 2. Section 381.00651, Florida Statutes, is created
  170  to read:
  171         381.00651 Periodic evaluation and assessment of onsite
  172  sewage treatment and disposal systems.—
  173         (1) For the purposes of this section, the term “first
  174  magnitude spring” means a spring that has a median water
  175  discharge of greater than or equal to 100 cubic feet per second
  176  for the period of record, as determined by the Department of
  177  Environmental Protection.
  178         (2) A county or municipality that contains a first
  179  magnitude spring shall, by no later than January 1, 2013,
  180  develop and adopt by local ordinance an onsite sewage treatment
  181  and disposal system evaluation and assessment program that meets
  182  the requirements of this section. The ordinance may apply within
  183  all or part of its geographic area. Those counties or
  184  municipalities containing a first magnitude spring which have
  185  already adopted an onsite sewage treatment and disposal system
  186  evaluation and assessment program and which meet the
  187  grandfathering requirements contained in this section, or have
  188  chosen to opt out of this section in the manner provided herein,
  189  are exempt from the requirement to adopt an ordinance
  190  implementing an evaluation and assessment program. The governing
  191  body of a local government that chooses to opt out of this
  192  section, by a majority plus one vote of the members of the
  193  governing board, shall do so by adopting a resolution that
  194  indicates an intent on the part of such local government not to
  195  adopt an onsite sewage treatment and disposal system evaluation
  196  and assessment program. Such resolution shall be addressed and
  197  transmitted to the Secretary of State. Absent an interlocal
  198  agreement or county charter provision to the contrary, a
  199  municipality may elect to opt out of the requirements of this
  200  section, by a majority plus one vote of the members of the
  201  governing board, notwithstanding a contrary decision of the
  202  governing body of a county. Any local government that has
  203  properly opted out of this section but subsequently chooses to
  204  adopt an evaluation and assessment program may do so only
  205  pursuant to the requirements of this section and may not deviate
  206  from such requirements.
  207         (3)Any county or municipality that does not contain a
  208  first magnitude spring may at any time develop and adopt by
  209  local ordinance an onsite sewage treatment and disposal system
  210  evaluation and assessment program, provided such program meets
  211  and does not deviate from the requirements of this section.
  212         (4)Notwithstanding any other provision in this section, a
  213  county or municipality that has adopted a program before July 1,
  214  2011, may continue to enforce its current program without having
  215  to meet the requirements of this section, provided such program
  216  does not require an evaluation at the point of sale in a real
  217  estate transaction.
  218         (5)Any county or municipality may repeal an ordinance
  219  adopted pursuant to this section only if the county or
  220  municipality notifies the Secretary of State by letter of the
  221  repeal. No county or municipality may adopt an onsite sewage
  222  treatment and disposal system evaluation and assessment program
  223  except pursuant to this section.
  224         (6)The requirements for an onsite sewage treatment and
  225  disposal system evaluation and assessment program are as
  226  follows:
  227         (a) Evaluations.—An evaluation of each onsite sewage
  228  treatment and disposal system within all or part of the county’s
  229  or municipality’s jurisdiction must take place once every 5
  230  years to assess the fundamental operational condition of the
  231  system and to identify system failures. The ordinance may not
  232  mandate an evaluation at the point of sale in a real estate
  233  transaction and may not require a soil examination. The location
  234  of the system shall be identified. A tank and drainfield
  235  evaluation and a written assessment of the overall condition of
  236  the system pursuant to the assessment procedure prescribed in
  237  subsection (7) are required.
  238         (b) Qualified contractors.—Each evaluation required under
  239  this subsection must be performed by a qualified contractor, who
  240  may be a septic tank contractor or master septic tank contractor
  241  registered under part III of chapter 489, a professional
  242  engineer having wastewater treatment system experience and
  243  licensed under chapter 471, or an environmental health
  244  professional certified under this chapter in the area of onsite
  245  sewage treatment and disposal system evaluation. Evaluations and
  246  pump-outs may also be performed by an authorized employee
  247  working under the supervision of an individual listed in this
  248  paragraph; however, all evaluation forms must be signed by a
  249  qualified contractor in writing or by electronic signature.
  250         (c) Repair of systems.—The local ordinance may not require
  251  a repair, modification, or replacement of a system as a result
  252  of an evaluation unless the evaluation identifies a system
  253  failure. For purposes of this subsection, the term “system
  254  failure” means a condition existing within an onsite sewage
  255  treatment and disposal system which results in the discharge of
  256  untreated or partially treated wastewater onto the ground
  257  surface or into surface water or that results in the failure of
  258  building plumbing to discharge properly and presents a sanitary
  259  nuisance. A system is not in failure if the system does not have
  260  a minimum separation distance between the drainfield and the
  261  wettest season water table or if an obstruction in a sanitary
  262  line or an effluent screen or filter prevents effluent from
  263  flowing into a drainfield. If a system failure is identified and
  264  several allowable remedial measures are available to resolve the
  265  failure, the system owner may choose the least costly allowable
  266  remedial measure to fix the system. There may be instances in
  267  which a pump-out is sufficient to resolve a system failure.
  268  Allowable remedial measures to resolve a system failure are
  269  limited to what is necessary to resolve the failure and must
  270  meet, to the maximum extent practicable, the requirements of the
  271  repair code in effect when the repair is made, subject to the
  272  exceptions specified in s. 381.0065(4)(g). An engineer-designed
  273  performance-based treatment system to reduce nutrients may not
  274  be required as an alternative remediation measure to resolve the
  275  failure of a conventional system.
  276         (d) Exemptions.
  277         1. The local ordinance shall exempt from the evaluation
  278  requirements any system that is required to obtain an operating
  279  permit pursuant to state law or that is inspected by the
  280  department pursuant to the annual permit inspection requirements
  281  of chapter 513.
  282         2. The local ordinance may provide for an exemption or an
  283  extension of time to obtain an evaluation and assessment if
  284  connection to a sewer system is available, connection to the
  285  sewer system is imminent, and written arrangements for payment
  286  of any utility assessments or connection fees have been made by
  287  the system owner.
  288         3. An onsite sewage treatment and disposal system serving a
  289  residential dwelling unit on a lot with a ratio of one bedroom
  290  per acre or greater is exempt from the requirements of this
  291  section and may not be included in any onsite sewage treatment
  292  and disposal system inspection program.
  293         (7) The following procedures shall be used for conducting
  294  evaluations:
  295         (a) Tank evaluation.—The tank evaluation shall assess the
  296  apparent structural condition and watertightness of the tank and
  297  shall estimate the size of the tank. The evaluation must include
  298  a pump-out. However, an ordinance may not require a pump-out if
  299  there is documentation indicating that a tank pump-out or a
  300  permitted new installation, repair, or modification of the
  301  system has occurred within the previous 5 years, identifying the
  302  capacity of the tank, and indicating that the condition of the
  303  tank is structurally sound and watertight. Visual inspection of
  304  the tank must be made when the tank is empty to detect cracks,
  305  leaks, or other defects. Baffles or tees must be checked to
  306  ensure that they are intact and secure. The evaluation shall
  307  note the presence and condition of outlet devices, effluent
  308  filters, and compartment walls; any structural defect in the
  309  tank; the condition and fit of the tank lid, including manholes;
  310  whether surface water can infiltrate the tank; and whether the
  311  tank was pumped out. If the tank, in the opinion of the
  312  qualified contractor, is in danger of being damaged by leaving
  313  the tank empty after inspection, the tank shall be refilled
  314  before concluding the inspection. Broken or damaged lids or
  315  manholes shall be replaced without obtaining a repair permit.
  316         (b) Drainfield evaluation.—The drainfield evaluation must
  317  include a determination of the approximate size and location of
  318  the drainfield. The evaluation shall state whether there is any
  319  sewage or effluent visible on the ground or discharging to a
  320  ditch or other water body and the location of any downspout or
  321  other source of water near or in the vicinity of the drainfield.
  322         (c) Special circumstances.—If the system contains pumps,
  323  siphons, or alarms, the following information may be provided at
  324  the request of the homeowner:
  325         1. An assessment of dosing tank integrity, including the
  326  approximate volume and the type of material used in the tank’s
  327  construction;
  328         2. Whether the pump is elevated off the bottom of the
  329  chamber and its operational status;
  330         3. Whether the system has a check valve and purge hole; and
  331         4. Whether the system has a high-water alarm, and if so
  332  whether the alarm is audio or visual or both, the location and
  333  operational condition of the alarm, and whether the electrical
  334  connections to the alarm appear satisfactory.
  336  If the homeowner does not request this information, the
  337  qualified contractor and its employee are not liable for any
  338  damages directly relating from a failure of the system’s pumps,
  339  siphons, or alarms. This exclusion of liability must be stated
  340  on the front cover of the report required under paragraph (d).
  341         (d) Assessment procedure.—All evaluation procedures used by
  342  a qualified contractor shall be documented in the environmental
  343  health database of the Department of Health. The qualified
  344  contractor shall provide a copy of a written, signed evaluation
  345  report to the property owner upon completion of the evaluation
  346  and to the county health department within 30 days after the
  347  evaluation. The report shall contain the name and license number
  348  of the company providing the report. A copy of the evaluation
  349  report shall be retained by the local county health department
  350  for a minimum of 5 years and until a subsequent inspection
  351  report is filed. The front cover of the report must identify any
  352  system failure and include a clear and conspicuous notice to the
  353  owner that the owner has a right to have any remediation of the
  354  failure performed by a qualified contractor other than the
  355  contractor performing the evaluation. The report must further
  356  identify any crack, leak, improper fit, or other defect in the
  357  tank, manhole, or lid, and any other damaged or missing
  358  component; any sewage or effluent visible on the ground or
  359  discharging to a ditch or other surface water body; any
  360  downspout, stormwater, or other source of water directed onto or
  361  toward the system; and any other maintenance need or condition
  362  of the system at the time of the evaluation which, in the
  363  opinion of the qualified contractor, would possibly interfere
  364  with or restrict any future repair or modification to the
  365  existing system. The report shall conclude with an overall
  366  assessment of the fundamental operational condition of the
  367  system.
  368         (8) The county health department shall administer any
  369  evaluation program on behalf of a county, or a municipality
  370  within the county, that has adopted an evaluation program
  371  pursuant to this section. In order to administer the evaluation
  372  program, the county or municipality, in consultation with the
  373  county health department, may develop a reasonable fee schedule
  374  to be used solely to pay for the costs of administering the
  375  evaluation program. Such a fee schedule shall be identified in
  376  the ordinance that adopts the evaluation program. When arriving
  377  at a reasonable fee schedule, the estimated annual revenues to
  378  be derived from fees may not exceed reasonable estimated annual
  379  costs of the program. Fees shall be assessed to the system owner
  380  during an inspection and separately identified on the invoice of
  381  the qualified contractor. Fees shall be remitted by the
  382  qualified contractor to the county health department. The county
  383  health department’s administrative responsibilities include the
  384  following:
  385         (a) Providing a notice to the system owner at least 60 days
  386  before the system is due for an evaluation. The notice may
  387  include information on the proper maintenance of onsite sewage
  388  treatment and disposal systems.
  389         (b) In consultation with the Department of Health,
  390  providing uniform disciplinary procedures and penalties for
  391  qualified contractors who do not comply with the requirements of
  392  the adopted ordinance, including, but not limited to, failure to
  393  provide the evaluation report as required in this subsection to
  394  the system owner and the county health department. Only the
  395  county health department may assess penalties against system
  396  owners for failure to comply with the adopted ordinance,
  397  consistent with existing requirements of law.
  398         (9)(a) A county or municipality that adopts an onsite
  399  sewage treatment and disposal system evaluation and assessment
  400  program pursuant to this section shall notify the Secretary of
  401  Environmental Protection, the Department of Health, and the
  402  applicable county health department upon the adoption of its
  403  ordinance establishing the program.
  404         (b) Upon receipt of the notice under paragraph (a), the
  405  Department of Environmental Protection shall, within existing
  406  resources, notify the county or municipality of the potential
  407  use of, and access to, program funds under the Clean Water State
  408  Revolving Fund or s. 319 of the Clean Water Act, provide
  409  guidance in the application process to receive such moneys, and
  410  provide advice and technical assistance to the county or
  411  municipality on how to establish a low-interest revolving loan
  412  program or how to model a revolving loan program after the low
  413  interest loan program of the Clean Water State Revolving Fund.
  414  This paragraph does not obligate the Department of Environmental
  415  Protection to provide any county or municipality with money to
  416  fund such programs.
  417         (c) The Department of Health may not adopt any rule that
  418  alters the provisions of this section.
  419         (d) The Department of Health must allow county health
  420  departments and qualified contractors access to the
  421  environmental health database to track relevant information and
  422  assimilate data from assessment and evaluation reports of the
  423  overall condition of onsite sewage treatment and disposal
  424  systems. The environmental health database must be used by
  425  contractors to report each service and evaluation event and by a
  426  county health department to notify owners of onsite sewage
  427  treatment and disposal systems when evaluations are due. Data
  428  and information must be recorded and updated as service and
  429  evaluations are conducted and reported.
  430         (10) This section does not:
  431         (a) Limit county and municipal home rule authority to act
  432  outside the scope of the evaluation and assessment program set
  433  forth in this section;
  434         (b) Repeal or affect any other law relating to the subject
  435  matter of onsite sewage treatment and disposal systems; or
  436         (c) Prohibit a county or municipality from:
  437         1. Enforcing existing ordinances or adopting new ordinances
  438  relating to onsite sewage treatment facilities to address public
  439  health and safety if such ordinances do not repeal, suspend, or
  440  alter the requirements or limitations of this section.
  441         2. Adopting local environmental and pollution abatement
  442  ordinances for water quality improvement as provided for by law
  443  if such ordinances do not repeal, suspend, or alter the
  444  requirements or limitations of this section.
  445         3. Exercising its independent and existing authority to
  446  meet the requirements of s. 381.0065.