October 6, The Honorable Raymond R. Krause Chief Administrative Law Judge 600 North Robert Street PO Box St. Paul, MN

Transcription

1 October 6, 2010 The Honorable Raymond R. Krause Chief Administrative Law Judge 600 North Robert Street PO Box St. Paul, MN RE: In the Matter of the Proposed Rules of the Pollution Control Agency Relating To Subsurface Sewage Treatment Systems, Submission to the Chief Administrative Law Judge of Changes Other Than Those Approved by the Administrative Law Judge; OAH Docket No ; Governor s Tracking Number 450 Dear Chief Judge Krause: Administrative Law Judge Richard C. Luis heard this matter on August 2 and 3, Judge Luis approved the rules in a Report, dated September 29, The Minnesota Pollution Control Agency (MPCA) wants to make changes in the rules other than those approved by Judge Luis. By this letter the MPCA requests that you determine whether these are substantial changes under Minnesota Statutes, section 14.16, subdivision 1, and Minnesota Rules, part , subpart 5. Enclosed are the following documents necessary for your review: 1. The rules as initially proposed. 2. The MPCA s proposed Order Adopting Rules. 3. The rules as proposed for final adoption showing the MPCA s changes. 4. A discussion of the changes being made. Judge Luis approved some of the MPCA s changes as shown in the attached rules as proposed for final adoption. The changes that Judge Luis did not approve are described in the attached proposed Order Adopting Rules and a more complete discussion of those changes is provided in Attachment 4. Please contact me at if you wish to discuss anything about the rules. After you complete your review, please send any correspondence regarding the rules to me at the following address: Carol Nankivel, Minnesota Pollution Control Agency, 520 Lafayette Road, St. Paul, MN Sincerely, Carol Nankivel Rule Coordinator Policy, Local Government Assistance and Solid Waste Section Municipal Division CN:wgp Enclosures wq-rule3-11

2 1. The following changes are based on recommendations by the Administrative Law Judge: a. In Findings Numbers 48 to 58, the Administrative Law Judge (ALJ) discusses the comments and issues associated with the definitions of building and structure. The ALJ makes a recommendation to either withdraw the amendments or define the words as follows , subp. 11 Building. "Building" means any structure used or intended for supporting or sheltering any use or occupancy lot improvement that has a foundation or that is intended for human occupancy ,subp. 80a. Structure. "Structure" means a lot improvement not intended for human occupancy that does not have a foundation but the location of which will interfere with the dispersal, treatment, operation, or maintenance of an SSTS. Structure includes, but is not limited to, animal shelters, decks, paved areas, and sheds. These recommended changes were considered, but after consultation internally and with several representatives of local units of government and the regulated community, the Minnesota Pollution Control Agency (MPCA) found that they did not fully address the concerns regarding how to apply the restrictions relating to the setback distances between SSTS and lot improvements. In addition, the MPCA believed that the ALJ s alternative recommendation to withdraw the proposed amendments would perpetuate the confusion and conflict associated with the use of the term building. The MPCA considered the concerns identified and determined that there was an inherent problem with the concept of assigning setbacks based on whether something was either a building or a structure, when both of those terms could describe a situation that may or may not present an issue with SSTS location. The MPCA decided that the most reasonable resolution was to provide a performance-based definition. The SSTS rules establish set back limitations because of three specific concerns. The first is the health effects that could result from locating SSTS too close to a human residence. (e.g., a malfunctioning pump outside of a bedroom window.) The second concern is the effect that the installation, operation and maintenance of the SSTS can have on other types of lot improvements (e.g., foundations that would be subjected to constant moisture from a drainfield). The third concern is the effect that various types of lot improvements will have on the installation, operation and maintenance of an SSTS (e.g., impermeable pavement over a drainfield). Because these concerns are not strictly limited to what is considered a building or a structure, and each of those definitions could encompass a wide range of possible scenarios, the MPCA believes it is reasonable to remove the distinction between building and structure and instead focus on the outcome. For this reason the existing definition of building is being repealed and a definition of structure is being adopted to address each of the three concerns associated with the location of SSTS in relation to a structure.

3 The rule that establishes setbacks (Minn. R , Table VII) is also being amended to eliminate the reference to building and instead only refer to structure. This change will continue to include buildings, as well as other types of lot improvements, only if they meet any one of the three criteria established in the definition (occupied, affecting the SSTS, or affected by the SSTS) subp. 11. Building. Building means any lot improvement with a foundation. (see repealer) subp. 80a. Structure. "Structure" means a constructed lot improvement that does not have a foundation but the location of which will is intended or used for human occupancy or that is determined by the local unit of government to: A) interfere with the dispersal, treatment construction, operation or maintenance of an SSTS. Structure includes, but is not limited to, animal shelters, decks, paved areas, and sheds.; or B) be interfered with by the construction, operation or maintenance of an SSTS. Minn. R , Table VII Table VII. Feature Buildings** Structures Sewage tank, holding tank, or sealed privy Absorption area or unsealed privy Building sewer or supply pipes ** For structures other than buildings, these setbacks are allowed to be reduced if necessary due to site conditions, but no component of an ISTS is allowed to be located under or within the structure or other impermeable surface. The MPCA does not believe that this change is a substantial change to the rules as proposed in the June 21, 2010 State Register. The changes to the proposed definition of building and structure were published for comment and the regulated community had opportunity to make their concerns and opinions known. b. In Finding Number 105 the ALJ recommends replacing the phrase according to with in accordance with , subp. 7. Septic tank capacity for other establishments. Septic tank liquid capacity for other establishments shall be determined by part ,

4 subpart 2. Total septic tank liquid capacity for other establishments with domestic strength waste as described in part , subpart 2, item B, subitem (1), is determined by multiplying the design flow by 3.0 if receiving sewage under gravity flow, by multiplying the design flow by 4.0 if receiving sewage under pressure flow, or according to in accordance with subpart 6. Additional design considerations, such as equalization tanks, additional capacity, grease interceptors, or secondary treatment, are required for influent concentrations that exceed the levels identified in part , subpart 2, item B, subitem (1) c. In Finding Number 110 the ALJ recommends that the numbering of part be modified to address the inclusion of a new item B. Existing items B and C are renumbered as items C and D to accommodate the addition of a new item B as discussed in part 3 of this document. d. In Finding Number 145 the ALJ recommends that the MPCA withdraw the amendment to part and allow the current due date of February 1 st to remain in place. The MPCA concurs and is withdrawing the change proposed , subp. 5. Reporting Requirements for all local programs. Local units of government that administer SSTS program must provide an annual report to the commissioner. The report must be submitted to the commissioner no later than January 10 February 1 for the previous calendar year. The report must include: 2. The MPCA believes the following changes, which were identified after the close of the comment period, are necessary and reasonable to adopt. A discussion of each is provided in support of the changes. a. The MPCA is amending Minn. R to provide for a phase-in period for tank standards as follows: Effective date. Sewage tanks must meet the requirements of parts to within three years of February 4, 2008 by April 4, Tanks produced and installed within this three year period must before April 4, 2012, meet either the requirements of Minnesota Rules 2005, part , or the requirements of Minnesota Rules 2009, parts to The amendments to the SSTS rules that became effective in 2008 (which are referred to in this amendment as they are codified-minnesota Rules 2009) made a number of changes to how tanks must be designed. Because the septic tank manufacturing industry needed time to modify designs to meet those requirements and also to transition its existing stock of tanks, the MPCA provided in that rulemaking for a three-year phase-in period for the new design standards. That previously adopted phase-in period would have ended on February 4, However, in the rules being adopted at this time, the MPCA is making additional changes to how tanks must be designed. Some of the same concerns about providing a phase-in period

5 for tank manufacturers exist for this rulemaking as for the previous rulemaking. The MPCA did not intend that this rulemaking result in the forced obsolescence of existing tank stock that met the existing requirements and did not address that contingency in the evaluation of the economic effects of the rules being adopted at this time. For this reason, the MPCA believes it is necessary and reasonable to provide an additional phase-in period for the tank manufacturing industry to adapt to the changes. The MPCA believes there is a need for an additional phase-in period for tank manufacturers to adjust to the newly adopted tank design requirements. Because the amendments to the tank design standards that are being adopted at this time are not as extensive as the previously adopted changes and because the tank manufacturing industry has been on notice for several years that the requirements are going to be changing, in this rulemaking the MPCA believes it is reasonable to provide a one-year additional time extension. The MPCA has selected April 4, 2012, as the effective date of the new requirements because that is one year after the date established by the Legislature for the completion of the current rulemaking. (2010 Minn. Laws ch. 361, part 73) The MPCA anticipates that the current rulemaking will become effective before that time, which will in effect give the regulated community more than one year to adjust to the new tank access requirements. However, because of the difficulty of determining the effective date of the current rulemaking in advance, the MPCA believes it is reasonable to select one year after the legislative deadline as the compliance deadline. The final sentence requires that in the interim, manufacturers may either produce tanks that meet the requirements of the 2005 SSTS rules or the 2009 SSTS rules, whichever best meet their particular needs. The MPCA recognizes that there has been much confusion and change to the standards governing tank design. It is the MPCA s intent that manufacturers are allowed to continue to design and market tanks during the period that the rules are being amended. Because the 2009 rules allowed three years for manufacturers to transition their designs, some tank manufacturers may still be making tanks in accordance with the 2005 rules. The MPCA believes it is reasonable to allow them to continue to sell their existing supply for an additional year after the rules are finalized. However, some manufacturers have not taken advantage of the full three-year phase in period that was provided for this transition and have already changed their designs to meet the 2009 tank standards. The MPCA believes it is also reasonable to allow them to continue with their current practice until the end of the proposed one-year phase-in for the new standards. In addition, in some cases, the MPCA expects that there will be no need for the proposed one-year phase-in and some manufacturers will be able to immediately begin to comply with the newly revised tank design requirements. The MPCA believes that although this one-year phase-in was not part of the original rule amendment proposal published in the June 21, 2010 State Register, it is not a substantial change because the change makes the rule less stringent and no business will be unfairly regulated because of the addition of the phase-in period. The addition of this phase-in period is essentially a correction to an oversight in the proposed rule language rather than the addition of a new requirement.

6 b. Following the receipt of a number of comments, the MPCA, in its Response to Comments, agreed to revise the rules to eliminate the requirement for an operating permit for holding tanks and only include a recommendation that operating permits be issued for holding tanks. The MPCA proposed the following rule revision to eliminate the requirement to issue operating permits for holding tanks , subp. 2. A. Local units of government must issue and enforce an operating permit for SSTS specified in parts , and , and chapter 7081 and any other system deemed to require operational oversight as determined by the local unit of government. An operating permit is recommended for holding tanks. However, after the MPCA s Response to Comments was submitted to Office of Administrative Hearing (OAH) for review, MPCA staff realized that this same requirement for an operating permit for holding tanks existed in two places in the rules: in Minn. R. part , subpart 3, item K, and also in part , subpart 2, item A. The requirement in part , subpart 3, item K, had not been proposed for amendment to eliminate the operating permit requirement, resulting in an inconsistency in the rules. The MPCA continues to believe that the need for an operating permit should be a recommendation and not a requirement for holding tanks and further believes that it is more appropriate to address this change in the requirements that relate to the issuance of operating permit requirements in part , subpart 3, item K. The inconsistency between the two rule parts can be eliminated by deleting the reference to part in part , subpart 3, and merely changing part , subpart 2, item A to refer to the relevant item in part These changes are only clarifications of the change that was submitted to OAH in the MPCA s Response to Comments and do not change the effect of the MPCA s proposal. The MPCA is amending the rules to provide for a phase-in period for tank standards as follows: , subp. 3, item K. A provision requiring operating permits for all systems installed under parts , , and , and chapter An operating permit is recommended for holding tanks regulated under part , subp. 2, item A. Local units of government must issue and enforce an operating permit for SSTS specified in parts , and , and chapter 7081 and any other system deemed to require operational oversight as determined by the local unit of government part , subpart 3, item K. 3. The following changes to the rules as proposed were made in response to comments and were submitted to OAH for review. A discussion of each of these changes is provided in the MPCA s Responses to Comments submitted to the ALJ and will not be repeated

7 here. The following changes have been found by the ALJ to not be substantial changes from the rules as proposed , subp. 41. Individual subsurface sewage treatment system or ISTS. Individual subsurface sewage treatment system or ISTS means a subsurface sewage treatment system or part thereof, as set forth in Minnesota Statutes, sections and , that employs sewage tanks or other treatment devices with final discharge into the soil below the natural soil elevation or elevated final grade that are designed to receive a sewage design flow of 5,000 gallons per day or less. ISTS also includes all holding tanks that are designed to receive a sewage design flow of 5,00010,000 gallons per day or less; sewage collection systems and associated tanks that discharge into ISTS treatment and dispersal components; and privies. ISTS does not include those components defined as plumbing under chapter , subp. 66a. Rock fragments. Rock fragments means pieces of rock greater than two millimeters in diameter or larger that are strongly cemented and resistant to rupture. Rock fragments are commonly known as gravel, stones, cobbles, and boulders , subp. 66b. Sand. Sand means a sand soil texture, as described the Field Book for Describing and Sampling Soils, which is incorporated by reference in subpart 36 Soil Survey Manual (1993) developed by the Natural Resource Conservation Service, United States Department of Agriculture. The manual is incorporated by reference, is not subject to frequent change, and is available through the Minitex interlibrary loan system. Subp.89a. Uniform distribution. Uniform distribution means a method that, upon activation of the SSTS, reliably distributes effluent evenly over the entire absorption area of a component over both time and space , subp. 4, item D. ISTS built after March 31, 1996, or in an SWF area as defined under part , subpart 84, must have at least a three-foot vertical separation or a vertical separation in compliance with subpart 2, Table XI. The local ordinance is allowed to provide for a reduced vertical separation in the following cases: for existing systems that were designed with at least a three-foot vertical separation distance. The local ordinance must not allow more than a 15 percent reduction in the vertical separation distance. A 15 percent reduction is only allowed to account for settling of sand or soil, normal variation of measurements and interpretations of the limiting layer conditions.

8 subp. 5, item E, subitem 3 unit (f) Field Evaluation: Soil descriptions for determining limiting layer. (f) the soil expressing indicators of seasonal saturation as determined in Field Indicators of Hydric Soils in the United States: A Guide for Identifying and Delineating Hydric Soils, USDA Natural Resource Conservation Service (2006 and as subsequently amended). The field indicators are incorporated by reference, are available through the Minitex interlibrary loan system, and are subject to frequent change; , subp. 6, item A. A. the loading rate based on an examination of soil texture, undisturbed soil structure, and soil consistence at the most limiting layer, within 12 inches below the proposed soil absorption area the depth of either the proposed soil absorption area or the most restrictive layer within three feet of the proposed soil absorption area, using the United States Department of Agriculture (USDA)soil classification system as specified in the Field Book for Describing and Sampling Soils, which is incorporated by reference under part , subpart 36; or item B. (1) each test hole must be six to eight inches in diameter, and have vertical sides, and be located at the depth of the proposed soil absorption area. For mounds and at-grade systems, the bottom of each test hole must be in the upper 12 inches of the original soil. For trenches and seepage beds, the bottom of each test hole must be at the depth of either the proposed absorption area or the most restrictive layer within 3 feet of the proposed soil absorption layer; , subp. 2. Design flow.the estimated design flow for any dwelling must provide for at least two bedrooms. For multiple or multifamily dwellings, the design flow must be calculated according to part subpart subp. 2. Garbage disposals. If a garbage disposal unit is anticipated or installed in a dwelling, the septic tank capacity must be at least 50 percent greater than that required in subpart 1 and must include either multiple compartments or multiple tanks. In addition, either an effluent screen with an alarm or a pressure filter must be employed screening device is recommended. Subp. 3. Sewage pumping. If sewage is pumped from a sewage ejector or grinder pump from a dwelling to a septic tank, the septic tank capacity must be at least 50 percent greater than that required in subpart 1 and must include either multiple compartments or multiple tanks. In addition, either an effluent screen with an alarm or a pressure filter must be employed screening device is recommended. Subp. 7. Septic tank capacity for other establishments. Total septic tank liquid capacity for other establishments with domestic strength waste as described in part , subpart 2, item B, subitem (1), is determined by multiplying the design flow by 3.0 if receiving sewage under gravity flow, by multiplying the design flow by 4.0 if receiving sewage under pressure flow, or according to in

9 accordance with subpart 6. Additional design considerations, such as equalization tanks, additional capacity, grease interceptors, or secondary treatment, are required for influent concentrations that exceed the levels identified in part , subpart 2, item B, subitem (1). Subp. 8. Oil and grease interceptor. An exterior oil and grease interceptor must be employed if oil and grease exceed the amount identified in part , subpart 2,item B, subitem (1) , item D. The inlet baffle must extend at least six inches, but not more than 20 percent of the total liquid depth, below the liquid surface. The inlet baffle must extend above the liquid surface in compliance with , item E, and at least one inch above the crown of the inlet sewer SEPTIC SEWAGE TANK ACCESS. A. Septic tanks must have a minimum of two maintenance holes with a minimum diameter of 20 inches (least dimension). Maintenance holes must be placed over the inlet baffle or the center of the tank, and the outlet device (baffle or screen). The maintenance holes must be large enough to allow pumping without interference. Enough maintenance holes must be provided so access can be gained within six feet of all walls for solids removal of each compartment. Inspection pipes of no less than six inches must be provided over any baffles that are not otherwise accessible through a maintenance hole. B. Pump tanks must have a minimum of one maintenance hole with a minimum diameter of 20 inches (least dimension). Enough maintenance holes must be provided so access can be gained within six feet of all walls for solids removal. Items B and C renumbered to items C and D , subp. 4, item B. The pump discharge capacity must be based on the perforation discharges for a minimum average head of 1.0 foot for ¼ inch and 3/16-inch to ¼-inch perforations and 2.0 feet for 1/8-inch perforations for dwellings. The minimum average head must be 2.0 feet for other establishments with 3/16- to ¼-inch perforations and 5.0 feet of head for 1/8-inch perforations subp. 3, item C, subitem (1), unit (b) any soil layers that are any of the United States Department of Agriculture (USDA) soil textures classified as sand with 35 to 50 percent rock fragments or loamy sand texture with 35 to 50 percent rock fragments must be credited at only one-half their thickness as part of the necessary treatment zone. Soil layers, regardless of soil texture, with greater than 50 percent rock fragments must not be credited as part of the necessary treatment zone. Layers that are given full, partial, or no credit must, in any layering arrangement in the soil profile, be cumulatively added to determine the amount of soil treatment zone in accordance with other soil treatment zone provisions; and

10 , subp. 3, Item E, Table IX Treatment and Dispersal; Other technical requirements for systems (all new language to replace the proposed changes to Table IX) TABLE IX LOADING RATES FOR DETERMINING BOTTOM ABSORPTION AREA AND ABSORPTION RATIOS USING DETAILED SOIL DESCRIPTIONS* Treatment Level C Absorption area loading rate (gpd/ft 2 ) Treatment Level C Mound absorption ratio Treatment Level A, A-2, B, B-2 Absorption area loading rate (gpd/ft 2 ) Treatment Level A, A- 2, B,B-2 Mound absorption ratio*** USDA Soil Texture Sand, Coarse Sand, Loamy Sand, Loamy Coarse Sand, Fine Sand, Very Fine Sand, Loamy Fine Sand, Loamy Very Fine Sand, 35 to 50% Rock Fragments Sand, Coarse Sand, Loamy Sand, Loamy Coarse Sand, <35% Rock Fragments Fine Sand, Very Fine Sand, Loamy Fine Sand, and Loamy Very Fine Soil Structure and Grade Single Grain, Granular, Blocky, or Prismatic Structure; Weak Grade Single Grain, Granular, Blocky, or Prismatic Structure; Weak Grade Single Grain, Granular, Blocky, or Prismatic ** 1.0 **

11 Sand, <35% Rock Fragments Structure; Weak Grade Sandy Loam, Coarse Sandy Loam, Fine Sandy Loam, Very Fine Sandy Loam Sandy Loam, Coarse Sandy Loam, Fine Sandy Loam, Very Fine Sandy Loam Loam Loam Silt Loam, Silt Silt Loam, Silt Clay Loam, Sandy Clay Loam, Silty Clay Loam Granular, Blocky, or Prismatic Structure; Weak to Strong Grade Platy with Weak Grade or Massive Granular, Blocky, or Prismatic Structure; Weak to Strong Grade Platy with Weak Grade or Massive Granular, Blocky, or Prismatic Structure; Weak to Strong Grade Platy with Weak Grade or Massive Granular, Blocky, or Prismatic Structure; Moderate to Strong Grade

12 ** ** ** ** Clay, Sandy Clay, Silty Clay - * Only includes soil horizons with < 50% rock fragments, with very friable and friable consistence, and loose non-cemented sands. Soil horizons with >50% rock fragments must not come in contact with soil dispersal system media. ** Conduct percolation test and size under Table IXa. May need to be designed under part *** Assume a hydraulic loading rate to the sand at 1.6 gpd/ft subp. 3, item J. A close-growing, vigorous vegetative cover must be established over the soil treatment and dispersal system and other vegetatively disturbed areas. The sodding, seeding, or other vegetation establishment must begin immediately after the placement of the topsoil borrow. If the climatic season does not allow immediate establishment of vegetation, the soil treatment and dispersal system must be protected from erosion and excessive frost until and a vegetative cover is must be established as soon as favorable climatic conditions exist. The vegetative cover established must not interfere with the hydraulic performance of the system and must provide adequate frost and erosion protection. Trees, shrubs, deep-rooted plants, or hydrophytic plants must not be planted on the system subp. 3 item L. The distribution media must not be in contact with soils with any of the USDA soil textures classified as sand soil texture with 35 percent or more rock fragments or loamy sand with 35 percent or more rock fragments or any soils that have a percolation rate of less than 0.1 minute per inch , subp. 4, item F. Trenches and seepage beds in which the distribution media is in contact with soils that are any of the United States Department of Agriculture soil textures classified as sand, or loamy sand, fine sand or loamy fine sand or soils with a percolation rate of 0.1 to 5 minutes per inch must employ one or more of the following measures: (1) employ pressure distribution according to part , subpart 4; (2) divide the total dispersal area into multiple units that employ serial distribution, with each dispersal unit having no greater than 15 percent of the required bottom absorption area; or (3) have a vertical separation distance of at least five feet , item H. follow the absorption area loading rates in part , subpart 3, item E, Tables IX and IXa. If the site cannot accommodate a soil

13 treatment and dispersal system sized in accordance with Table IX or IXa in part , subpart 3, item E, a smaller soil treatment and dispersal system is allowed to be constructed if it employs flow restriction devices that do not allow loadings in excess of those in Table IX or IXa of part , subpart 3, item E. In those cases where a loading rate or mound absorption ratio is not listed in Tables IX and IXa in part , subpart 3, item E, an alternative loading rate or absorption ratio must is allowed to be proposed , subp. 1, item D A system designed according to this part is considered a Type IV system. The system must: D. meet the requirements of part , subpart 3, items A and B except as modified in this part; Footnote 3 additional vertical separation distance is required as determined by subpart 3 item C subitem (1), unit (b) , subpart 3, item C. After removal of solids and liquids from a system installed after the adoption of a local ordinance adopted after February 4, 2008, the maintenance hold cover must be secured as described in part , item C D. Covers secured by screws must be refastened in all screw openings , subpart 3, item D. After removal of solids and liquids from a system installed before the adoption of a local ordinance adopted after February 4, 2008, maintenance hole covers must be sound, durable, and of adequate strength as specified in part , item C D, subitem (3), and: (1) unchanged) (2) meet the requirements of part item CD if the cover is to be raised to be at or above the ground surface or within 12 inches from final grade , subp. 2, item E. has a pit that has not been placed in a soil stratum of with any of the United States Department of Agriculture textures classified as a sand or loamy sand fine sand, or loamy fine sand texture when any of those soils contain 35 percent or more rock fragment or a percolation rate of less than 5 minutes per inch , subp. 4. Midsized subsurface sewage treatment system or MSTS. "Midsized subsurface sewage treatment system" or "MSTS" means a subsurface sewage treatment system, or part thereof, as set forth in Minnesota Statutes, sections and , that employs sewage tanks or other treatment devices with final discharge into the soil below the natural soil elevation or elevated final grade and that is designed to receive sewage design flow of greater than 5,000 gallons per day to 10,000 gallons per day. MSTS also includes holding tanks that are designed to receive a sewage design flow of greater than 5,000 gallons per day to 10,000 gallons per day, on-lot

14 sewage tanks discharging into a sewage collection system systems and associated tanks that discharges discharge into MSTS treatment or dispersal components. MSTS does not include those components defined as plumbing under chapter , subp. 2. New housing developments. For new housing developments to be served by a common SSTS, the developer must determine and restrict the total number of bedrooms for the development Proposed dwellings are determined to be Classification I dwellings for flow determination purposes unless different classifications are approved by the local unit of government. The determined classification system must be used in conjunction with the flow calculation method in subpart 1. If the ultimate development of phased or segmented growth meets or exceeds the thresholds in part , subpart 1, item B, the initial system or systems and all subsequent systems require a state disposal system permit , subp. 4. Tank geometry. For common septic tanks, The maximum liquid depth of septic tanks to determine liquid capacity must be no greater than 84 inches. The length-to-width ratio and the length-to-depth ratio must facilitate settling of solids , subp. 5, item A. Effluent loading rates to the soil shall not exceed the soil s ability to infiltrate and transmit effluent as determined by the observations and measurements in part , subpart 7, and must be no greater than loading rates prescribed must be determined in: (1) part , subpart 3, item E, Table IX or IXa, if the absorption area receives treatment level C effluent as described in part ; or (2) part , subpart 3, Table XII or XIIa , item E, if the absorption area receives effluent meeting treatment levels A or B in part ; or (3)(2) part , if allowed by the local unit of government subpart 5, item F. When a county has completed the applicable steps in this subpart, an ordinance containing alternative local standards may be adopted. The county is responsible for developing the processes and procedures necessary to administer the conventional program in addition to the alternative local standards. Processes and procedures must include providing maps to SSTS professionals depicting the areal extent of the alternative local standards, developing inspection procedures to be used to verify compliance with the alternative local standards for both new and existing systems, and developing an addendum to the state's existing system inspection form that reflects the altered compliance standards for the alternative local standards systems in the county, if applicable subp. 3, item D. A certificate of compliance or notice of noncompliance for new construction or replacement must be signed by a licensed inspection business or by a qualified employee certified as an inspector who is authorized by the local unit of government. The certificate of compliance or notice of noncompliance for new

15 construction and replacement must be submitted to the local unit of government no later than 15 days after any compliance inspection. The certificate of compliance or notice of noncompliance for new construction or replacement must be submitted to the owner or owner's agent within 15 days after any compliance inspection subp. 4, item B. The agency s inspection report form for existing SSTS, supplemented with any necessary or locally required supporting documentation, must be used for the existing system compliance inspections in subitems (1) to (3) (4). Allowable supporting documentation includes tank integrity assessments made within the past three years and prior soil separation assessments subp. 4, item B. (2): A soil separation compliance assessment must be completed by a licensed inspection business or a qualified employee inspector with jurisdiction. Compliance must be determined either by conducting new soil borings observations or by prior soil separation documentation made by two independent parties. The soil borings observations used for system design or previous inspections are allowed to be used if they contain the information in part , subpart 5, items B, D, and F. If the soil separation has been determined by two independent parties, a subsequent determination is not required unless requested by the owner or owner's agent or required according to local regulations subp. 4, item B (4): A determination of operational performance and other compliance in part , subparts 4, item C, and 5 must be completed by a licensed advanced inspection business, a qualified employee with an advanced inspector certification with jurisdiction, or a service provider. A passing report is valid until a new inspection is requested subp. 4, item C. A certificate of compliance or notice of non-compliance for an existing system must be based on the results of the verifications in item B. The certificate of compliance or notice of non-compliance for an existing system must be signed by a licensed inspection business or a qualified employee inspector with jurisdiction. The certificate or notice for an existing system must be submitted to the local unit of government with jurisdiction and the property owner or owner's agent no later than 15 days after a compliance inspection. The completed form must also be submitted to the owner or owner's agent. The certificate of compliance for an existing system is valid for three years from the date of issuance, unless a new inspection is requested by the owner or owner's agent or is required according to local regulations , subp. 3. Term of bond. The term of the corporate surety bond must be continuous with the term of the license or, in the case of a plumbing bond provided according to Minnesota Statutes section 326B.46, subdivision 2, concurrent with the term of the plumbing license. The penal sum of the bond is noncumulative and must not be aggregated every year that the bond is in force , subp. 4. Service provider. To gain a service provider license or certification, a business or individual must meet the requirements of this chapter. An

16 ISTS licensed business or a certified individual providing management services before February 4, 2008, is authorized to operate an SSTS until February 4, , without a service provider license. After February 4, , businesses and individuals providing SSTS management services must meet the requirements of this chapter.

17 OAH Docket No Governor s Tracking No. AR 450 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE POLLUTION CONTROL AGENCY In the Matter of the Proposed Rules of the Pollution Control Agency Governing Subsurface Sewage Treatment Systems, Minnesota Rules Chapters 7080, 7081, 7082, and 7083 CHIEF ADMINISTRATIVE LAW JUDGE S ORDER ON REVIEW OF RULES UNDER MINN. STAT , SUBD. 1 AND MINN. R , SUBP. 5. The Minnesota Pollution Control Agency (MPCA or Agency) proposes to adopt the above-entitled rules pursuant to Minn. Stat The proposed rules came on for a public hearing on August 2 and August 3, The Administrative Law Judge approved the rules in a Report dated September 29, On October 8, 2010, the MPCA requested that the Chief Administrative Law Judge review modifications to the rules other than those approved by Judge Luis. The MPCA supplemented its request on October 19, The Chief Administrative Law Judge finds that the final proposed rules are not substantially different from those published in the State Register on June 21, 2010, and proposed at the public hearing; Based upon a review of the modifications made by the MPCA as presented in the October 8 and October 19, 2010, submissions and filings, Minnesota Statutes, Minnesota Rules, and the previous order issued in this matter, IT IS HEREBY ORDERED: that the proposed rules, dated October 18, 2010, are approved as to legality. Dated this 19th day of October, /s/ Raymond R. Krause RAYMOND R. KRAUSE Chief Administrative Law Judge

18 October 20, 2010 Carol Nankivel Rule Coordinator Minnesota Pollution Control Agency Policy, Local Government Assistance and Solid Waste Section 520 Lafayette Road North St. Paul, MN RE: In the Matter of the Proposed Rules of the Pollution Control Agency Relating to Subsurface Sewage Treatment Systems,; Minnesota Rules, Chapters 7080, 7081, 7082 and 7083; OAH Docket No Governor s Tracking Number AR 450 Dear Ms. Nankivel: Enclosed please find the Order of the Chief Administrative Law Judge in the above-entitled matter. The modified rules have been approved as to legality. With the approval of the proposed rules, our office has closed this file and is returning the remainder of the rule record to you so that your agency can maintain the official rulemaking record in this matter as required by Minnesota Statutes, section Please notify me at the telephone number listed below once the Board has executed its Order Adopting Rules. Our office will then file, via U.S. mail, four copies of the adopted rules with the Secretary of State, who will forward one copy to the Revisor of Statutes, one copy to the Governor, and one to the Board for its rulemaking record. You will then receive from the Revisor s Office three copies of the Notice of Adoption of your rule. Your next step is to arrange for publication of the Notice of Adoption in the State Register. You should submit two copies of the Notice that you receive from the Revisor s Office to the State Register for publication. In accordance with Minnesota Statutes, section 14.18,

19 the rules will be effective five working days after the Notice of Adoption is published in the State Register. If you have any questions regarding the remaining steps in the rulemaking process, please do not hesitate to contact me at (651) Sincerely, Mary Beth Gossman Staff Attorney Enclosures cc: Office of the Attorney General Office of the Revisor of Statutes Legislative Coordinating Commission Office of the Governor

20 October 20, 2010 Nancy Breems Secretary of State, Elections Division 180 State Office Building 100 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, Minnesota RE: Filing of the Adopted Rules of the Pollution Control Agency Governing Subsurface Sewage Treatment Systems; Minnesota Rules, Chapters 7080, 7081, 7082 and 7083; OAH Docket No Governor s Tracking Number AR 450 Dear Ms. Breems: Pursuant to Minnesota Statutes, section 14.16, subdivision 3, and Minnesota Rules, part , subpart 10, our office is filing with the Secretary of State four copies of the above-entitled adopted rules. The rules were approved for legality by our office on August 26, Please send the agency copy of the rules to: Carol Nankivel, Rule Coordinator Minnesota Pollution Control Agency Policy, Local Government Assistance and Solid Waste Section 520 Lafayette Road North St. Paul, MN Thank you. If you have any questions regarding this matter, please feel free to contact me at (651) Sincerely, Mary Beth Gossman Staff Attorney