MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Conservation and Water Resources
By: Representatives Currie, Hobgood-Wilkes, Crawford
AN ACT TO PROVIDE THAT UPON A FINDING BY THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY THAT WASTEWATER AND/OR SEWAGE HAS BEEN IMPROPERLY DISPOSED OF BY ANY MUNICIPALITY OR COUNTY, SUCH MUNICIPALITY OR COUNTY, THE CITY SHALL BE FINED BY THE DEPARTMENT FOR EACH INSTANCE OF IMPROPER DISPOSAL; TO PROVIDE THAT THE DEPARTMENT SHALL DISTRIBUTE SUCH FUNDS EQUALLY AMONG CERTAIN COUNTIES AND MUNICIPALITIES THAT THE DEPARTMENT FINDS WERE AFFECTED BY SUCH IMPROPER DISPOSAL OF WASTEWATER AND/OR SEWAGE; TO BRING FORWARD SECTIONS 41-67-3, 41-67-6, 41-67-7, 41-67-9, 41-67-21, 41-67-28, 49-2-7 AND 49-2-9, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Upon a finding by the Mississippi Department of Environmental Quality that wastewater and/or sewage has been improperly disposed of by any municipality or county, the city or county shall be fined by the department in an amount not to exceed One Million Dollars ($1,000,000.00) for each instance of improper disposal.
(2) The department shall distribute such funds equally among certain counties and municipalities that the department finds were affected by such improper disposal of wastewater and/or sewage.
SECTION 2. Section 41-67-3, Mississippi Code of 1972, is brought forward as follows:
41-67-3. (1) The board and/or the department shall have the following duties and responsibilities:
(a) To exercise general supervision over the design, installation, operation and maintenance of individual on-site wastewater disposal systems, decentralized wastewater treatment systems and cluster systems;
(b) To adopt, modify, repeal and promulgate rules and regulations, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to, to grant exemptions from and to enforce rules and regulations implementing or effectuating the duties of the board under this chapter to protect the public health. The board may grant variances from rules and regulations adopted under this chapter, including requirements for buffer zones, or from setbacks required under Section 41-67-7 where the granting of a variance shall not subject the public to unreasonable health risks or jeopardize environmental resources;
(c) To provide or deny certification for persons engaging in the business for hire of the installation, operation or maintenance of individual on-site wastewater disposal systems and persons engaging in the removal and disposal of the sludge and liquid waste from those systems;
(d) To suspend or revoke certifications issued to persons engaging in the business for hire of the installation, operation or maintenance of individual on-site wastewater disposal systems or persons engaging in the removal and disposal of the sludge and liquid waste from those systems, when it is determined the person has violated this chapter or applicable rules and regulations;
(e) To require the submission of information deemed necessary by the department to determine the suitability of individual lots for individual on-site wastewater disposal systems for the purpose of commercial or residential development; and
(f) To adopt, modify, repeal and promulgate rules and regulations, after due notice and hearing, and where not otherwise prohibited by federal or state law, as necessary to determine the suitability of individual on-site wastewater disposal systems in subdivisions.
(2) To assure the effective and efficient administration of this chapter, the board shall adopt rules governing the design, construction or installation, operation and maintenance of individual on-site wastewater disposal systems, including rules concerning the:
(a) Review and approval of individual on-site wastewater disposal systems in accordance with Section 41-67-6;
(b) Certification of installers;
(c) Certification of pumpers;
(d) Certification of manufacturers;
(e) Certification of professional evaluators; and
(f) Creation of regulations that authorize the original and any subsequent homeowner to be trained by certified installers as defined in Section 41-67-25(2) or other factory representatives in order to educate the homeowner with the necessary knowledge to provide maintenance to the homeowner's system; no fees shall be charged to the homeowner for such training, thus allowing the homeowner to meet the requirements of Section 41-67-7(5).
(3) In addition, the board shall adopt rules establishing performance standards for individual on-site wastewater disposal systems for single family residential generators and rules concerning the operation and maintenance of individual on-site wastewater disposal systems designed to meet those standards. The performance standards shall be consistent with the federal Clean Water Act, maintaining the wastes on the property of the generator and protection of the public health. Rules for the operation and maintenance of individual on-site wastewater disposal systems designed to meet performance standards shall include rules concerning the following:
(a) A standard application form and requirements for supporting documentation;
(b) Application review;
(c) Approval or denial of authorization for proposed systems;
(d) Requirements, as deemed appropriate by the board, for annual renewal of authorization;
(e) Enforcement of the requirements and conditions of authorization; and
(f) Inspection, monitoring, sampling and reporting on the performance of the system.
Any system proposed for authorization in accordance with performance standards must be designed and certified by a licensed professional engineer in the State of Mississippi and must be authorized by the department before installation.
(4) To the extent practicable, all rules and regulations adopted under this chapter shall give maximum flexibility to persons installing individual on-site wastewater disposal systems and all options consistent with the federal Clean Water Act, consistent with maintaining the wastes on the property of the generator and consistent with protection of the public health. In addition, all rules and regulations, to the extent practicable, shall encourage the use of economically feasible systems, including all techniques and technologies for individual on-site wastewater disposal.
(5) All regulations shall be applied uniformly in all areas of the state and shall take into consideration and make provision for different types of soil in the state when performing soil and site evaluations.
SECTION 3. Section 41-67-6, Mississippi Code of 1972, is brought forward as follows:
41-67-6. (1) Nothing in this chapter shall preclude a certified professional evaluator or licensed professional engineer from providing services relating to the design of an individual on-site wastewater disposal system to comply with this chapter, except for performance-based systems as specified in Section 41-67-3(3). A certified professional evaluator or licensed professional engineer shall notify the department in writing of those services being provided, including the type of treatment, the type of disposal, and the property address for the treatment and disposal system. Construction or installation shall not begin before authorization by the department. The department shall respond within ten (10) business days with authorization that the certified professional evaluator or licensed professional engineer fulfills the requirements of the law.
(2) Within five (5) working days following receipt of the notice of intent and plot plan by an owner, lessee or developer of any lot or tract of land, the department shall conduct a soil and site evaluation, except in cases where a certified professional evaluator or licensed professional engineer provides services relating to the design, construction or installation of an individual on-site wastewater disposal system to comply with this chapter. All regulations shall be applied uniformly in all areas of the state and shall take into consideration and make provision for different types of soil in the state when performing soil and site evaluations. Within ten (10) additional working days, the department shall make recommendations to the owner, lessee or developer of the type or types of individual on-site wastewater disposal systems suitable for installation on the lot or tract, unless there are conditions requiring further investigation that are revealed in the initial evaluation. In making recommendations on the type or types of individual on-site wastewater disposal systems suitable for installation on a lot or tract, personnel of the department shall use best professional judgment based on rules and regulations adopted by the board, considering the type or types of systems which are installed and functioning on lots or tracts near the subject lot or tract. To the extent practicable, the recommendations shall give the owner, lessee or developer maximum flexibility and all options consistent with the federal Clean Water Act, consistent with maintaining the wastes on the property of the generator and consistent with protection of the public health. The system or systems recommended shall be environmentally sound and cost-effective. The department, a licensed professional engineer or a certified professional evaluator shall provide complete information, including all applicable requirements and regulations on all systems recommended. The owner, lessee or developer shall have the right to choose among systems. The department shall provide the owner, lessee or developer with a permit/recommendation that specifies all types of individual on-site wastewater disposal systems that are suitable for installation on the lot or tract.
(3) Within thirty (30) days of receipt of a request for determination of suitability of individual on-site wastewater disposal systems in a subdivision, the department shall advise the developer in writing either that all necessary information needed for determination of suitability has been received or state the additional information needed by the department for determination of suitability.
(4) Whenever a developer requests a determination of suitability of individual on-site wastewater disposal systems in a subdivision, the department must make the determination within thirty (30) days after receipt of all necessary information needed for the determination of suitability from the developer. The department shall state in writing the reasons for its determination.
(5) (a) The certified installer shall notify the department at least twenty-four (24) hours before beginning installation of an individual on-site wastewater disposal system and, at that time, schedule a time for inspection of the system with the appropriate county department of health.
(b) A certified installer, or designated agent thereof, shall not cover his work with soil or other surface material unless the installer has received authorization to cover the system after an inspection by a department environmentalist, or unless a department environmentalist does not arrive for inspection within thirty (30) minutes of the designated and agreed upon time, in which case a certified installer, or designated agent thereof, may submit an affidavit of proper installation to the department for final approval.
(6) A person may not design, construct or install, or cause to be designed, constructed or installed an individual on-site wastewater disposal system that does not comply with this chapter and rules and regulations of the board.
(7) Any lot or tract that is two (2) acres or larger shall be exempt from the requirements of this chapter and regulations of the department relating to approval of individual on-site wastewater disposal systems by the department, and shall be exempt from the provisions of Section 41-67-5(2), provided that:
(a) All wastewater is contained on the lot or tract;
(b) No watercourse, as defined in Section 51-3-3(h), of Mississippi or the United States is impacted; and
(c) The person who installed the individual on-site wastewater disposal system provides the department with a signed affidavit attesting that the requirements of paragraphs (a) and (b) are met.
SECTION 4. Section 41-67-7, Mississippi Code of 1972, is brought forward as follows:
41-67-7. (1) Approval of the design, construction or installation of an individual on-site wastewater disposal system by the department is required, except as otherwise provided in Section 41-67-6(7). Upon completion of installation of the system, the department shall approve the design, construction or installation of that system, as requested, if the system is designed, constructed and installed, as the case may be, in accordance with the rules and regulations of the board. Whenever a person requests approval of an individual on-site wastewater disposal system and has met the requirements in subsection (3) of this section, the department must approve or disapprove the request within five (5) working days. If the department disapproves the request, the department shall state in writing the reasons for the disapproval. If the department does not respond to the request within ten (10) calendar days, the request for approval of the individual on-site wastewater disposal system shall be deemed approved.
(2) Individual on-site wastewater disposal systems shall be considered acceptable, provided the following requirements are met:
(a) Centralized wastewater treatment systems are not available or feasible;
(b) The existing disposal systems in the area are functioning satisfactorily;
(c) Soil types, soil texture, seasonal water tables and other limiting factors are satisfactory for underground absorption;
(d) Any private water supply is located at a higher elevation or it must be properly protected, and at least fifty (50) feet from the individual on-site wastewater disposal system and at least one hundred (100) feet from the disposal field of the system; and
(e) The systems meet applicable water quality requirements of Section 41-67-10.
(3) After construction or installation of the individual on-site wastewater disposal system, the property owner or his agent shall provide a final approval request containing the following to the department:
(a) A signed affidavit from the installer that the system was installed in compliance with all requirements, regulations and permit conditions applicable to the system installed; and
(b) For any advanced treatment system, an affidavit from the property owner agreeing to a continuing maintenance agreement on the installed system at the end of the required manufacturer's maintenance agreement.
(4) If any person or certified installer fails to obtain final approval or submit an affidavit of proper installation to the department in the installation of the system, the board, after due notice and hearing, may levy an administrative fine not to exceed Ten Thousand Dollars ($10,000.00). Each wastewater system installed not in compliance with this chapter or applicable rules and regulations of the board may be considered a separate offense.
(5) The property owner, if not a qualified homeowner maintenance provider, shall keep a continuing maintenance agreement with a certified installer on all advanced treatment systems in perpetuity. Any person violating this subsection shall be subject to the penalties and damages as provided in Section 41-67-28(5).
SECTION 5. Section 41-67-9, Mississippi Code of 1972, is brought forward as follows:
41-67-9. (1) All existing individual on-site wastewater disposal systems on July 1, 2014, shall be grandfathered in until a valid complaint is registered with a county department of health or until a property owner requests an inspection by the department.
(2) All existing individual on-site wastewater disposal systems shall be considered acceptable provided the following requirements are met:
(a) The existing individual on-site wastewater disposal system and all treated effluent is contained on the property of the generator;
(b) No evidence that any insufficiently treated effluent is leaving the property of the generator or has been seeping to the surface of the ground;
(c) Centralized wastewater treatment systems are not available;
(d) If a private water supply well is present, the well should be located at a higher elevation than the disposal system and is protected from surface contamination by a concrete slab of a thickness of at least four (4) inches extending at least two (2) feet in all directions from the well casing; and
(e) If an advanced treatment system is used, the property owner shall be required to contact an authorized representative of a certified manufacturer of the specific advanced treatment system to provide a continuous maintenance agreement or provide the property owner training to become a qualified homeowner maintenance provider.
(3) Owners of property on which an existing individual on-site wastewater disposal system does not meet the requirements of subsection (2) of this section shall be required by the department to meet Section 41-67-6 or Section 41-67-21.
SECTION 6. Section 41-67-21, Mississippi Code of 1972, is brought forward as follows:
41-67-21. (1) The department shall require a property owner and/or lessee to repair a malfunctioning individual on-site wastewater disposal system on the owner's or lessee's property before the thirtieth day after the date on which the owner or lessee is notified by the department of the malfunctioning system.
(2) The property owner and/or lessee shall take adequate measures as soon as practicable to abate an immediate health hazard.
(3) If an existing residential individual on-site wastewater disposal system is malfunctioning, the system shall be repaired to reduce the volume of effluent, to adequately treat the effluent and to the greatest extent possible, to confine the discharge to the property of the generator. If repairs are made to significantly upgrade the existing individual on-site wastewater disposal system, the department shall approve the system, if requested.
(4) The property owner or lessee may be assessed a civil penalty not to exceed Five Dollars ($5.00) for each day the individual on-site wastewater disposal system remains unrepaired after the thirty-day period specified in subsection (1) of this section.
(5) The board may assess the property owner or lessee of an individual on-site wastewater disposal system authorized under Section 41-67-3(3) a civil penalty not to exceed Five Dollars ($5.00) for each day the system fails to meet the performance standards of that system after the thirty-day period specified in subsection (1) of this section.
(6) All penalties collected by the board under this section shall be deposited in the State General Fund.
(7) Appeals from the imposition of civil penalty under this section may be taken as provided in Section 41-67-29.
SECTION 7. Section 41-67-28, Mississippi Code of 1972, is brought forward as follows:
41-67-28. (1) Except as otherwise provided in this chapter, any person who shall knowingly violate this chapter or any rule or regulation or written order of the board in pursuance thereof is, upon conviction, guilty of a misdemeanor and shall be punished as provided in Section 41-3-59.
(2) Each day of a continuing violation is a separate violation.
(3) (a) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases an individual on-site wastewater disposal system and suffers any ascertainable loss of money or property, real or personal, may bring an action at law in the court having jurisdiction in the county in which the installer or manufacturer has the principal place of business, where the act allegedly occurred, to recover any loss of money or damages for the loss of any property resulting from any of the following:
(i) Improper installation of an individual on-site wastewater disposal system due to faulty workmanship;
(ii) Failure of an individual on-site wastewater disposal system to operate properly due to failure to install the system in accordance with any requirements of the manufacturer or in compliance with any rules and regulations of the board; or
(iii) Failure of an individual on-site wastewater disposal system to operate properly due to installation.
(b) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.
(4) A person who violates this chapter thereby causing a discharge off the property of the generator shall be liable to the party aggrieved or damaged by that violation for the actual damages and additional punitive damages equal to a maximum of twenty-five percent (25%) of the actual damages proven by the aggrieved party, to be taxed by the court where the suit is heard on an original action, by appeal or otherwise and recovered by a suit at law in any court of competent jurisdiction. In addition, the court may award the prevailing party reasonable attorney's fees and court costs. Before filing suit, the party aggrieved or damaged must give thirty (30) days' written notice of its intent to file suit to the alleged violator.
(5) (a) Any person who violates Section 41-67-7(5) or 41-67-11(2) may be assessed an administrative fine in the amount of Five Hundred Dollars ($500.00) and the public water system may discontinue service to that property owner until the failure to comply with Section 41-67-7(5) or 41-67-11(2) has been corrected.
(b) All violators shall be given thirty (30) days' notice before any adverse action.
(c) Any violator shall have the right to appeal an adverse determination through the procedures set out in Section 41-67-29.
SECTION 8. Section 49-2-7, Mississippi Code of 1972, is brought forward as follows:
49-2-7. The Department of Environmental Quality shall be the Mississippi Department of Natural Resources with the exception of the Office of Parks and Recreation, and shall retain all powers and duties granted by law to the Mississippi Department of Natural Resources with the exception of the Office of Parks and Recreation, and wherever the term "Mississippi Department of Natural Resources" appears in any law the same shall mean the Department of Environmental Quality. The Executive Director of the Department of Environmental Quality may assign to the appropriate offices any powers and duties deemed appropriate to carry out the lawful duties of the department.
The department shall be composed of the following offices:
(a) Office of Geology and Energy Resources;
(b) Office of Land and Water Resources; and
(c) Office of Pollution Control.
Each office shall be composed of the administrative units set forth in the consolidation plan adopted by the commission, subject to changes by the executive director, with approval of the commission, as hereinafter set forth.
The department is designated as the single state department to receive and expend any federal funds being received or expended by any agency transferred to the department by Chapter 484, Laws of 1978, and to receive and expend any federal funds made available for matters within the jurisdiction of the department.
The department shall be responsible for conserving, managing, developing and protecting the natural resources of the State of Mississippi within the jurisdiction of the department, with the exception of functions of the Office of Recreation and Parks. The department shall coordinate all functions of state government related to natural resources within the jurisdiction of the department. The department shall not exercise any of its authority or powers granted under the provisions of this section in a manner which would be inconsistent with the provisions of Section 29-1-1.
SECTION 9. Section 49-2-9, Mississippi Code of 1972, is brought forward as follows:
49-2-9. (1) Effective July 1, 1979, the commission shall have the following powers and duties:
(a) To formulate the policy of the department regarding natural resources within the jurisdiction of the department;
(b) To adopt, modify, repeal, and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under any and all statutes within the commission's jurisdiction, and as the commission may deem necessary to prevent, control and abate existing or potential pollution;
(c) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source;
(d) To commission or conduct studies designed to determine alternative methods of managing or using the natural resources of this state, in a manner to insure efficiency and maximum productivity;
(e) To enter into, and to authorize the executive director to execute with the approval of the commission, contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution located inside or outside the State of Mississippi, or any person, corporation or association in connection with carrying out the provisions of this chapter; but this authority under this chapter and under any and all statutes within the commission's jurisdiction, except those statutes relating to the Bureau of Recreation and Parks, shall not include contracts, grants or cooperative agreements which do not develop data or information usable by the commission, or which provide goods, services or facilities to the commission or any of its bureaus, and shall exclude any monies for special interest groups for purposes of lobbying or otherwise promoting their special interests; and
(f) To discharge such other duties, responsibilities and powers as are necessary to implement the provisions of this chapter.
(2) The Mississippi Department of Environmental Quality, Office of Geology and Energy Resources shall be responsible for program management, procurement, development and maintenance of the Mississippi Digital Earth Model, which should include the following seven (7) core data layers of a digital land base computer model of the State of Mississippi:
(a) Geodetic control;
(b) Elevation and bathymetry;
(c) Orthoimagery;
(d) Hydrography;
(e) Transportation;
(f) Government boundaries; and
(g) Cadastral. With respect to the cadastral layer, the authority and responsibility of the Mississippi Department of Environmental Quality, Office of Geology and Energy Resources shall be limited to compiling information submitted by counties.
For all seven (7) framework layers, the Mississippi Department of Environmental Quality, Office of Geology and Energy Resources shall be the integrator of data from all sources and the guarantor of data completeness and consistency and shall administer the council's policies and standards for the procurement of remote sensing and geographic information system data by state and local governmental entities.
SECTION 10. This act shall take effect and be in force from and after July 1, 2023, and shall stand repealed on June 30, 2023.