This chapter has the following purposes:

(1) To enable the establishment of wastewater onsite management entities, public and private, for managing decentralized cluster wastewater systems in Alabama.

(2) To provide public health and environmental protection through permitting these entities and through enforcement of the permit and rules promulgated by the State Board of Health.

(3) To require the continued financial stability and ability to perform of entities proposing to provide services hereunder.

This chapter is supplemental to all other law and rules promulgated under such law and is not intended to repeal or replace any existing statute except to the extent that there is a direct conflict. In such case, this chapter shall control. All contractors and subcontractors performing work regulated by this law must be licensed by the appropriate state agency if applicable.

For purposes of this chapter, the following terms shall have the following meanings unless the context clearly indicates otherwise:

(1) BOARD. The State Board of Health as constituted and authorized by Sections 22-2-1 and 22-2-2.

(2) DECENTRALIZED CLUSTER SYSTEMS. An onsite system for treating and disposing of the domestic wastewater generated by more than one dwelling or establishment, where the system is managed by a responsible person, functioning as an onsite management entity.

(3) DEPARTMENT. The Alabama Department of Public Health.

(4) DOMESTIC WASTEWATER. Wastewater from residences and other wastewaters of similar composition not including wastewater generated by industrial process.

(5) ONSITE MANAGEMENT ENTITY. A public or private business entity certified by the department to hold permits from the department or the Alabama Department of Environmental Management and which exercises sole responsibility for the operation and maintenance of one or more decentralized cluster systems.

The board may adopt and promulgate rules and the department may certify and permit onsite management entities for the management of decentralized cluster systems and facilities in order to accomplish the following:

(1) Ensure the economic viability and continued existence of the onsite management entity.

(2) Include conditions for the operational permitting of treatment systems which are managed by onsite management entities.

(3) Require, through the permitting process, an appropriate level of maintenance and management of decentralized cluster systems. The permitting process shall address the following:

a. System performance requirements that endeavor to protect public health and the environment.

b. Compliance monitoring and enforcement that ensure adequate system performance.

(4) Establishment of minimum inspection and maintenance guidelines for cluster wastewater management entities to assure effective and long-term operational viability.

(5) Establishment of an enforcement strategy which ensures compliance with law and rules.

Decentralized cluster systems established prior to, on, or after January 1, 2002, shall be operated by an onsite management entity as authorized by the department. Systems in existence prior to January 1, 2002, shall be in compliance by January 1, 2003. No person, firm, corporation, municipality, or other public or private legal entity shall operate as an onsite management entity without full compliance with this chapter and with rules promulgated hereunder. The board shall adopt and promulgate and the department shall enforce rules pursuant to and in compliance with the Alabama Administrative Procedure Act establishing the scope of responsibilities and powers of onsite management entities which shall include the following:

(1) The authority to establish procedures and guidelines for operation and management of the decentralized cluster system, within broader board rules.

(2) The authority to construct or install new systems which have been approved and permitted by the department and to oversee their construction and installation.

(3) The authority to perform routine system inspection and maintenance or contract these services.

(4) The authority to manage septage handling and disposal so as to comply with all established and applicable statutes and rules.

(5) The responsibility to keep records, perform database maintenance, bookkeeping, billing, payment processing, and other administrative acts.

(6) The responsibility to obtain easements for access to property for maintenance or repair, when needed, or to acquire land when necessary.

(7) The responsibility to administer an internal enforcement program with appropriate sanctions.

The department shall operate within state government as a revenue neutral component and shall fund the operations of this program from certification and permitting fees as herein below established. These certification and permitting fees shall be forwarded by each public and private onsite management entity to the department to provide operating resources to the department and shall be deposited by the department into the Public Health Management Entity Fund.

(1) The department is authorized to collect from the onsite management entity a fee for review of applications for certification of financial viability in the amount of two hundred fifty dollars ($250) per application. The fees are due and payable in advance of review.

(2) The department is authorized to collect from the onsite management entity a fee for review of applications for system operational permits in the amount of two hundred fifty dollars ($250) per application. The fees are due and payable in advance of review.

(3) A new application for certificate of financial viability, along with any proposed rate changes, shall be submitted by the onsite management entity every two years from the date of issuance of the operational permit. Rate changes shall be approved by the Alabama Department of Public Health if fair and reasonable as determined by the department considering the cost of operation and maintenance of the system and similar costs in the industry within the State of Alabama. Cooperatives transacting business in this state pursuant to Chapter 6 of Title 37 deemed to be general welfare cooperatives are exempt from the provisions of this subdivision. Likewise, entities of county and local governments including but not limited to water and sewer boards and authorities are exempt from the provisions of this subdivision.

(4) A new operational permit application shall be submitted by the onsite management entity every five years from the date of issuance of the operational permit and, in addition, when there is a change in the operation of the system which would require a permit modification as determined by the department.

Violation or failure of an entity to comply with law or conditions of certification or conditions of the operational permit, board rules, or administrative orders issued by the department may result in revocation of certification or regulatory permits or may result in civil penalties not exceeding five thousand dollars ($5,000), or both, per compliance failure or violation. The department is authorized to collect civil penalties from offending entities upon giving the entity notice in accordance with board rules and with the Alabama Administrative Procedure Act. Upon service of notice to the entity by the department, the entity shall either pay the fee or serve notice on the department within 30 days from the date of the service of the notice by the department of its intent to appeal the fee in accordance with the Administrative Procedure Act. An entity receiving an adverse ruling in an administrative hearing held by the department shall either pay the civil penalty or file notice of appeal in accordance with the Administrative Procedure Act. Service of notice of appeal shall suspend any penalty until final adjudication. If an entity fails to file any notice of appeal required by this section in a timely manner, the entity shall become civilly liable to the department in the amount assessed plus costs of the administrative process and hearing plus interest assessed at eight percent per annum from the date of notice of assessment. The department shall assess penalties in accordance with the following statutory guidelines:

(1) Any civil penalty assessed or recovered shall not be less than one hundred dollars ($100) or exceed five thousand dollars ($5,000) for each violation, provided, however, that the total penalty assessed in an order issued by the department shall not exceed ten thousand dollars ($10,000).

(2) Each day a violation continues shall constitute a separate violation for purposes of subdivision (1).

(3) In determining the amount of any penalty, consideration shall be given to the following:

a. The seriousness of the violation, including any irreparable harm to the environment and any threat to the health or safety of the public.

b. The standard of care manifested by the violator.

c. The economic benefit which delayed compliance may confer upon the violator.

d. The nature, extent, and degree of success of efforts to minimize or mitigate the effects of the violation upon the public health or environment.

e. The history of previous violations.

f. The ability of the violator to pay the penalty.

(4) Civil penalties may be assessed under this chapter for any compliance failure or violation occurring within three years prior to the date of issuance of an order or notice or commencement of civil action under this chapter.

(5) Civil penalties assessed hereunder and not paid as provided herein may be recovered in a civil action brought by the department in the Circuit Court of Montgomery County or any county in which the department or defendant does business.

There is created within the State Treasury a special fund to be known as the Public Health Management Entity Fund. Fees, penalties, or revenue of whatsoever nature or kind coming into the hands of the department as a result of the operation of this chapter and deposited into this fund shall be continuously appropriated to the department to carry out the purposes of this chapter.

(a) Before any entity, except cooperatives transacting business in this state pursuant to Chapter 6 of Title 37 deemed to be general welfare cooperatives and entities of county and local governments including but not limited to water and sewer boards and authorities, shall be granted a permit or certificate by the department, the entity shall first apply for and obtain a certificate of economic viability from the department. The department may make the determination of economic viability utilizing its own resources or may consult with or contract with other agencies of government or appropriate consultants. In determining the grant or denial of such certificate of economic viability, the department shall consider economic viability of an existing entity or the expectation of economic viability of a proposed entity based upon the following criteria or any combination thereof:

(1) Opinion by an independent certified public accountant.

(2) Letter of recommendation from any governmental entity which presently regulates such entity.

(3) Previous economic history of the entity.

(4) Assets as related to liabilities of the entity.

(5) Financial stability and previous financial history of the principals of the entity.

(6) Insurability, bondability, and creditworthiness of the entity as determined by standard business methods.

(b) Before the department shall grant any permit, the department shall require of the entity and the entity shall prove to the department financial assurances of continued compliance with this chapter and rules promulgated hereunder. Such assurances shall be determined by the department in accordance with the following:

(1) The department shall require at least one of the following: Performance bond, pledge of assets of the entity, letter of credit made payable to the department, or other similar instrument or mechanism in an amount sufficient to continue management of the system for a period of 10 years should the entity cease to exist or fail to fulfill its obligations to the clients served by the entity. The bond, pledge, letter of credit, or other instrument may be declared forfeited when the operational permit is expired or revoked. The department may present the declaration of forfeiture to the obligor on the instrument for payment. Failure of the obligor to make full and timely payment thereon shall constitute a cause of action for recovery in a civil action at the instance of the department. Cooperatives transacting business in this state pursuant to Chapter 6 of Title 37 deemed to be general welfare cooperatives are exempt from the provisions of this subsection. Likewise, entities of county and local governments including but not limited to water and sewer boards and authorities are exempt from the provisions of this subsection.

(2) An applicant-entity shall demonstrate to the department legally sufficient safeguards to prevent the entity from sale, assignment, or other divestiture of any kind or form of its assets or responsibilities without the express written consent of the department.

(c) Persons who or which maintain ownership of all real property on which wastewater is generated, treated, transported, and disposed are not subject to the requirements of this section.

In addition to any other rights and remedies specified herein or otherwise provided by law, the department, the Attorney General, or district attorney having jurisdiction in the circuit or county in which any threatened or continuing violation occurs may commence a civil action to enjoin a violation. In any such action, any person having an interest which is or may be adversely affected may intervene as a matter of right.