The Honorable Randy Minton State Representative 880 Minton Road Ward, Arkansas 72176-8618
Dear Representative Minton:
This is in response to your request for an opinion on the installation of individual sewage absorption systems. You note that on April 15, 1999, my office issued an Opinion (No. 99-087), which "clarified on page 5 that designated representatives determine the suitability of the soil before performing a percolation test for the designing of a subsurface sewage adsorption system." You now pose the following questions:
1. Was the original intent of Act 402 of 1977 to use the percolation test to help in the determination of the suitability of the soil and the hydraulic factors associated with the individual soil classes or is this determination to be made based upon a physical inspection of the soil and its characteristics and not take into consideration its ability to absorb water?
2. Previously, any change in the rules and regulations for sewage disposal systems required the approval of the Joint Interim Committee of Public Health, Labor and Welfare. I have now been told that this only requires our review of the changes and not our approval. Is this correct and when did the procedure change?
RESPONSE
In response to your first question, the original act (Act 402 of 1977) mentions "percolation tests" in only two places and does not indicate when the test is to be performed. The act simply does not address the issue. There is therefore no "original intent" to be divined on this point. In response to your second question, the pertinent change in the wording of the state was effected by Act 179 of 1997, § 9.
As noted above, Act 402 of 1997, which is codified at A.C.A. §§ 14-236-101 to -118 (Repl. 1998), mentions percolation tests in only two places. The first is A.C.A. § 14-236-103(14) which authorizes "designated representatives" to make percolation tests. The second is A.C.A. §14-236-118, which authorizes designated representatives to charge fees for percolation tests. The act simply does not address the specific use of percolation tests, or when in the design of a system they are to be employed. The "original intent" of Act 402 on this point thus cannot be determined from a reading of the act.
In response to your second question, Act 179 of 1997 was entitled "An Act to Amend Various Sections of the Arkansas Code to Refer to the House and Senate Interim Committees on Public Health, Welfare and Labor Instead of the Joint Interim Committee on Public Health, Welfare and Labor; and for Other Purposes." It amended a number of existing Arkansas statutes to make the required name change. It also, however, in Section 9, changed the word "approval" to "review" in § 14-236-107 (b)(1).
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh