Title: House Bill 688*-Second Edition
Category: Introduced Bill 2005

General Assembly of North Carolina	Session 2005

GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
H	2
HOUSE BILL 688*
Committee Substitute Favorable 7/7/05

Short Title:	Certify On-Site Wastewater Contractors. | (Public)
Sponsors: |
Referred to: |
March 17, 2005

A BILL TO BE ENTITLED
AN ACT to provide for the certification of on‑site wastewater contractors and inspectors.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 90A of the General Statutes is amended by adding a new Article to read:
"Article 5.
"Certification of On‑Site Wastewater Contractors and Inspectors.
"§ 90A‑70.  Purpose.
It is the purpose of this Article to protect the environment, public health, and safety by ensuring the integrity and competence of on‑site wastewater contractors and inspectors; to require the examination of on‑site wastewater contractors and inspectors and the certification of their competency to supervise, conduct, or inspect the construction, installation, repair, or inspection of on‑site wastewater systems; to establish minimum standards for ethical conduct, responsibility, training, experience, and continuing education for on‑site wastewater system contractors and inspectors; and to provide appropriate enforcement procedures for rules adopted by the North Carolina On‑Site Wastewater Contractors and Inspectors Certification Board.
"§ 90A‑71.  Definitions.
The following definitions apply in this Article:
(1)	'Board' means the North Carolina On‑Site Wastewater Contractors and Inspectors Certification Board.
(2)	'Department' means the Department of Environment and Natural Resources. 
(3)	'Certified on‑site wastewater system inspector' means a person who is certified under this Article to conduct an inspection of an existing on‑site wastewater system at the time of resale.
(4)	'On‑site wastewater system' means any wastewater system permitted under the provisions of Article 11 of Chapter 130A of the General Statutes that does not discharge to a treatment facility or the surface waters.
(5)	'Contractor' means a person who constructs, installs, or repairs, or offers to construct, install, or repair an on‑site wastewater system in the State.
(6)	'Person' means all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities, or political subdivisions, governmental agencies, or private or public corporations organized and existing under the laws of this State or any other state or country.
(7)	'Responsible charge' means the direct control and personal supervision of the installation, construction, repair, or inspection of an on‑site wastewater system.
"§ 90A‑72.  Certification required; applicability.
(a)	Certification Required. – No person shall construct, install, repair, or inspect, or offer to construct, install, repair, or inspect an on‑site wastewater system in the State without first obtaining and holding the required level of certification for the specified system. A certified on‑site wastewater system inspector shall be required for any professional performance inspection of an existing on‑site wastewater system. 
(b)	Applicability. – This Article does not apply to the following:
(1)	A person who constructs, installs, or repairs an on‑site wastewater system described as a single septic tank with a gravity‑fed distribution system when located on land owned by that person and that is intended solely for use by that person and members of that person's immediate family.
(2)	A person licensed under Article 1 of Chapter 87 of the General Statutes who constructs or installs an on‑site wastewater system ancillary to the building being constructed.
(3)	A person who is certified by the Water Pollution Control System Operators Certification Commission and contracted to provide necessary operation and maintenance on the permitted on‑site wastewater system.
(4)	A person permitted under Article 21 of Chapter 143 of the General Statutes who is constructing a water pollution control facility necessary to comply with the terms and conditions of a National Pollutant Discharge Elimination System (NPDES) permit.
(5)	A person licensed under Article 1 of Chapter 87 of the General Statutes as a licensed public utilities contractor who is installing or expanding a wastewater treatment facility, including a collection system, designed by a registered professional engineer.
(6)	A plumbing contractor licensed under Article 2 of Chapter 87 of the General Statutes unless the plumbing contractor constructs, installs, repairs, or inspects, or offers to construct, install, repair, or inspect an on‑site wastewater system in the State.
"§ 90A‑73.  Creation and membership of the Board.
(a)	Creation and Appointments. – There is created the North Carolina On‑Site Wastewater Contractors and Inspectors Certification Board. The Board shall consist of nine members appointed to three‑year terms as follows:
(1)	One member appointed by the Governor who, at the time of appointment, is engaged in the construction, installation, repair, or inspection of on‑site wastewater systems, to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.(2)	One member appointed by the Governor who, at the time of appointment, is a certified water treatment facility operator pursuant to Article 2 of Chapter 90A of the General Statutes, to a term that expires on 1 July of years evenly divisible by three.
(3)	One member appointed by the Governor who is an employee of the Division of Environmental Health to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(4)	One member appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate who, at the time of appointment, is engaged in the construction, installation, repair, or inspection of on‑site wastewater systems, to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(5)	One member appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate who, at the time of appointment, is engaged in the business of inspecting on‑site wastewater systems, to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.
(6)	One member appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate upon the recommendation of the North Carolina Home Builders Association, to a term that expires on 1 July of years evenly divisible by three.
(7)	One member appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives who, at the time of appointment, is engaged in the construction, installation, repair, or inspection of on‑site wastewater systems, to a term that expires on 1 July of years evenly divisible by three.
(8)	One member appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives who, at the time of appointment, is (i) employed as an environmental health specialist, and (ii) engaged primarily in the inspection and permitting of on‑site wastewater systems, to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(9)	One member appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives who, at the time of appointment, is (i) employed by North Carolina State University Cooperative Extension Service, and (ii) is knowledgeable in the area of on‑site wastewater systems, to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.
(b)	Vacancies. – An appointment to fill a vacancy on the Commission created by the resignation, dismissal, disability, or death of a member shall be for the balance of the unexpired term. Vacancies in appointments made by the General Assembly shall be filled as provided in G.S. 120‑122.
(c)	Oath. – Each member of the Board, before entering upon the discharge of the duties of the Board, shall take and file with the Secretary of State an oath in writing to perform properly the duties as a member of the Board and to uphold the Constitution of North Carolina and the Constitution of the United States.
(d)	Officers. – The Board shall elect a Chair from among its members. The Chair shall serve from the time of election until 30 June of the following year, or until a successor is elected. 
(e)	Compensation. – Board members who are State employees shall receive no per diem compensation for serving on the Board but shall be reimbursed for their expenses in accordance with G.S. 138‑6. All other Board members shall receive per diem compensation and reimbursement in accordance with the compensation rate established in G.S. 93B‑5.
(f)	Quorum. – A majority of the members of the Board constitutes a quorum for the transaction of business.
(g)	Meetings. – The Board shall meet at least twice each year and may hold special meetings at the call of the Chair or a majority of the members of the Board.
(h)	Staff. – The Board may employ staff to carry out the duties of the Board and the provisions of this Article. The Board shall determine the compensation, duties, and other terms and conditions of employment of the staff.
"§ 90A‑74.  Powers and duties of the Board.
The Board shall have the following general powers and duties:
(1)	To adopt rules in the manner prescribed by Chapter 150B of the General Statutes to govern its actions and to implement the provisions of this Article.
(2)	To determine the qualifications of persons who are certified pursuant to this Article. 
(3)	To establish grades of certifications based on design capacity, complexity, projected costs, and other features of approved on‑site wastewater systems.
(4)	To develop and administer examinations for each grade of certification. The Board may approve applications by recognized associations for certification of its members after a review of the requirements of the association to ensure that they are equivalent to the requirements of the Board. 
(5)	To issue, renew, deny, restrict, suspend, or revoke licenses and to carry out any of the other actions authorized by this Article.
(6)	To establish, publish, and enforce rules of professional conduct of persons who are certified pursuant to this Article.
(7)	To maintain a record of all proceedings and make available to persons licensed under this Article, and to other concerned parties, an annual report of all Board action.
(8)	To establish reasonable fees for application, certification, and renewal, and other services provided by the Board. 
(9)	To conduct investigations for the purpose of determining whether violations of this Article or grounds for disciplining persons certified under this Article exist.
(10)	To adopt a common seal containing the name of the Board for use on all certificates and official reports issued by the Board. 
(11)	To conduct other services necessary to carry out the purposes of this Article.
"§ 90A‑75.  Expenses and fees.
(a)	Expenses. – All salaries, compensation, and expenses incurred or allowed for the purposes of carrying out this Article shall be paid by the Board exclusively out of the funds received by the Board as authorized by this Article. No salary, expense, or other obligations of the Board may be charged against the General Fund of the State. Neither the Board nor any of its members or employees may incur any expense, debt, or financial obligation binding upon the State.
(b)	Contributions. – The Board may accept grants, contributions, bequests, and gifts that shall be kept in the same account as the funds deposited in accordance with this Article and other provisions of the law.
(c)	Fees. – All fees shall be established in rules adopted by the Board. The Board shall establish fees sufficient to pay the costs of administering this Article, but in no event shall the Board charge a fee at an annual rate in excess of the following:
(1)	Application for basic certification	$150.00
(2)	Application for each step grade	$50.00
(3)	Certification renewal	$100.00
(4)	Reinstatement of revoked or suspended
certification	$500.00
(5)	Application for on‑site wastewater
system inspector	$200.00.
(d)	Audit. – The Board is subject to the oversight of the State Auditor under Article 5A of Chapter 147 of the General Statutes.
"§ 90A‑76.  On‑Site Wastewater Certification Fund.
Fund. – The On‑Site Wastewater Certification Fund is created as a nonreverting account within the Department. All fees collected pursuant to this Article shall be credited to the Fund. The Fund shall be used solely for the costs of administering this Article.
"§ 90A‑77.  Certification requirements.
(a)	Certification. – The Board shall issue a certificate of the appropriate grade level to an applicant who satisfies all of the following conditions: 
(1)	Is at least 18 years of age.
(2)	Files a properly completed application with the Board or submits a recognized application from an accepted association.(3)	Is of good moral character and submits affidavits of three persons not related to the applicant for whom the applicant provided on‑site wastewater services. 
(4)	Completes the training program designed by the Board specific to the grade level for which the applicant is applying.
(5)	Pays the applicable fees set by the Board for the particular application.
(b)	Examination. – For grade levels greater than conventional systems for a conventional system as defined by G.S. 130A‑343(a)(3), the applicant must pass a written or oral examination that tests the applicant's proficiency in the following areas: 
(1)	Principles of public and environmental health associated with on‑site wastewater systems. 
(2)	Principles of construction and safety. 
(3)	Technical and practical knowledge of on‑site wastewater systems typical to the specified grade level. 
(4)	Laws and rules related to the installation, construction, repair, or inspection of the specified on‑site wastewater system.
(c)	Location of Examinations. – The Board shall provide a minimum of three examinations each year; one each in the coastal plain, the Piedmont, and the mountain areas of the State.
(d)	Approval of Certification Programs. – The Board may issue a certificate at the appropriate grade level to an applicant from a recognized association after review and approval of the continuing education program of the association.
(e)	No Prior Experience. – Applicants with no prior experience in providing on‑site wastewater services shall, upon a properly completed application, complete a basic on‑site wastewater education program approved by the Board. Upon completion of the basic on‑site wastewater education program, the applicant shall be eligible to participate in courses in an on‑site wastewater systems training program designed by the Board specific to the grade level for which the applicant is applying.
(f)	No Degree Required. – An applicant shall not be required to hold or obtain an educational diploma or degree to obtain a certificate. If the applicant meets all the conditions for certification except for passage of the Board examination, the applicant may take the examination on two more occasions without having to file for a new application, pay an additional application fee, or repeat the training program. If the applicant fails to pass the Board examination on three successive occasions, the applicant must reapply to the Board, pay the application fee, and repeat the training program.
(g)	Certificate. – The certification shall show the full name of the certificate holder. The certificate shall provide a unique identification number and shall be signed by the Chair. Issuance of the certificate by the Board shall be prima facie evidence that the person named therein is entitled to all the rights and privileges of a certified on‑site wastewater contractor or inspector, at the grade level specified on the certificate, while the certificate remains in effect.
(h)	Replacement Certificate. – A new certificate to replace one lost, destroyed, or mutilated shall be issued subject to rules adopted by the Board and with the payment of a fee set by the Board. The fee for a duplicate or replacement certificate shall not exceed twenty‑five dollars ($25.00).
"§ 90A‑78.  Certification renewal.
(a)	Renewal. – All certifications shall expire at intervals determined by the Board unless they are renewed. In no event may the interval determined by the Board be less than one year. To renew a certification, a contractor or inspector must meet all of the following conditions:
(1)	Submit an application for renewal on the form prescribed by the Board.
(2)	Meet the continuing education requirements prescribed by the Board.
(3)	Pay the certification renewal fee.
(b)	Late Fee. – A contractor or inspector with an expired certificate may renew the certification within 90 days of its expiration upon payment of a late fee set by the Board. The late fee shall not exceed twenty‑five dollars ($25.00). If a certification is not renewed within 90 days of its expiration, the certification shall not be renewed, and the holder must apply for a new certificate.
"§ 90A‑79.  Continuing education.
(a)	Requirements. – The Board shall require continuing education as a condition of certification and renewal. The Board shall determine the number of hours, based on grade levels applied for, up to a maximum of 12 hours per year, and the subject material for the specified grade level. The Board shall maintain records of continuing education coursework successfully completed by each certificate holder.
(b)	Approval of Continuing Education Programs. – The Board may approve a continuing education program or course if the Board finds that the program or course offers useful educational experience that will enhance the construction, installation, repair, or inspection of on‑site wastewater systems. The Board may develop and offer continuing education programs.
"§ 90A‑80.  Responsibility of the certificate holder.
(a)	Responsibilities. – The certificate holder shall be responsible for all crew actions and quality of workmanship. A certificate may be issued jointly to an individual doing business under the name of the individual, under a trade name, or under the name of a firm, partnership, association, or corporation. The certificate holder shall be the person of responsible charge and shall assume all duties and liabilities for the construction, installation, repair, or inspection of the system. 
(b)	Separation of Employment. – If the certificate holder is an employee of the firm, partnership, association, or corporation, employment must continue for the certificate to remain in force. If separation of the employee occurs, the firm, partnership, association, or corporation must employ a certified contractor or inspector within 60 days for the certificate to remain in force.
"§ 90A‑81.  Investigation of complaints.
(a)	Misconduct. – A person may refer to the Board charges of fraud, deceit, negligence, incompetence, or misconduct against any contractor or inspector licensed under this Article. The charges shall be in writing and sworn to by the complainant and submitted to the Board. These charges, unless dismissed without a hearing by the Board as unfounded or trivial, shall be heard and determined by the Board in accordance with the provisions of Chapter 150B of the General Statutes. An association that receives professional recognition of its own certification process by the Board shall be responsible for the conduct and competency of its members.
(b)	Records. – The Board shall establish and maintain detailed records regarding complaints concerning each certified contractor or inspector. The records shall include those certified by recognized associations. The records shall also detail the levels of certification held by each contractor or inspector.
(c)	Notification. – The Board shall notify local health departments of updates in certifications, complaints, suspensions, or reinstatements.
"§ 90A‑82.  Remedies.
(a)	Denial, Suspension, and Revocation of Certification. – The Board may deny, suspend, or revoke a certificate under this Article for:
(1)	A violation of this Article or a rule of the Board.
(2)	The use of fraud or deceit in obtaining or renewing a certificate.
(3)	Any act of gross negligence, incompetence, or misconduct in the construction, installation, repair, or inspection of an on‑site wastewater system.
(b)	Arbitration. – The Board may establish a voluntary arbitration procedure to resolve complaints concerning a certificate holder or any work performed by the certificate holder, or conflicts involving any certificate holder and the Division of Environmental Health or a local health department.
(c)	Injunction. – The Board may ask the Attorney General to seek an injunction to restrain any person, firm, partnership, or corporation from violating the provisions of this Article or rules adopted by the Board. The Attorney General may bring an action for an injunction in the name of the State in the superior court of any county in which the violator resides or the violator's principal place of business is located. In any proceedings for an injunction, it shall not be necessary to allege or prove either that an adequate remedy at law does not exist, or that substantial or irreparable damage would result from the continued violation. Members of the Board shall not be personally or professionally liable for any act or omission pursuant to this subsection. The Board shall not be required to post a bond in connection with any action to obtain an injunction.
(d)	Offenses. – A person who commits any one or more of the following offenses is guilty of a Class 2 misdemeanor:
(1)	Engages in or offers to engage in the construction, installation, repair, or inspection of an on‑site wastewater system without the appropriate certificate for the specific grade of on‑site wastewater system.
(2)	Gives false or forged evidence of any kind in obtaining a certificate.
(3)	Falsely impersonates a certificate holder."
SECTION 2.(a)  In order to provide for a system of staggered three‑year terms for the members of the On‑Site Wastewater Contractors and Inspectors Certification Board established by G.S. 90A‑73(a), as enacted by Section 1 of this act, the following provisions shall apply:
(1)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(1) shall be three years and shall expire on 1 July 2008.
(2)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(2) shall be four years and shall expire on 1 July 2009.
(3)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(3) shall be five years and shall expire on 1 July 2010.
(4)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(4) shall be five years and shall expire on 1 July 2010.
(5)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(5) shall be three years and shall expire on 1 July 2008.
(6)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(6) shall be four years and shall expire on 1 July 2009.
(7)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(7) shall be four years and shall expire on 1 July 2009.
(8)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(8) shall be five years and shall expire on 1 July 2010.
(9)	The term of the member initially appointed to serve in the position established by G.S. 90A‑73(a)(9) shall be three years and shall expire on 1 July 2008.
SECTION 2.(b)  In the event that the General Assembly fails to appoint one or more initial members to the On‑Site Wastewater Contractors and Inspectors Certification Board while the General Assembly is in session during 2005, the failure to make an initial appointment shall be treated as though a vacancy had occurred, and the vacancy may be filled by appointment as provided in G.S. 120‑122.
SECTION 3.  This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B‑21.1. The On‑Site Wastewater Contractors and Inspectors Certification Board may adopt temporary rules to implement the provisions of this act until 1 July 2007. Notwithstanding G.S. 150B‑21.1(d), a temporary rule adopted in accordance with this section shall remain in effect until a permanent rule adopted to replace the temporary rule becomes effective. Prior to the adoption of temporary rules under this section, the Board shall:
(1)	Consult with persons who may be interested in the subject matter of the temporary rule during the development of the text of the proposed temporary rule.
(2)	Establish a mailing list pursuant to G.S. 150B‑21.2(d) and notify persons on the mailing list of its intent to adopt a temporary rule.
(3)	Publish a notice of intent to adopt a temporary rule in the North Carolina Register. The notice shall set out the text of the proposed temporary rule and include the name of the person to whom questions and written comments on the proposed rule may be submitted. The Board shall accept written comments on the proposed temporary rule for at least 30 days after the notice of intent to adopt the temporary rule as published in the North Carolina Register.
(4)	Hold at least one public hearing on the proposed temporary rule.
SECTION 4.  Section 1 of this act is effective when it becomes law except that G.S. 90A‑72, 90A‑79, and 90A‑82, as enacted by Section 1 of this act, become effective July 1, 2007. Sections 2, 3, and 4 of this act are effective when it becomes law.

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