The Honorable Randy Minton State Representative 880 Minton Road Ward, Arkansas 72176-8618
Dear Representative Minton:
I am writing in response to your request for an opinion on whether a memorandum from the Arkansas Department of Health concerning the use of soil pits in the determination of the suitability of soils for private sanitary sewer systems is within the parameters of Act 402 of 1977. Specifically, you have enclosed a January 10, 2002 memorandum from the "Environmental Leader, Central Public Health Region," which states that: "Effective immediately, pits will be required for all lots to determine soil suitability for Individual Sewage Disposal Permits." The memo also states that the "pits should be located in the areas where leaching fields (primary and secondary) are to be constructed" and that "[t]he pit must be 3 feet wide by 5 feet long with sloped access at one end and no deeper than 4 feet. The pit must be deep enough to show soil morphological features in order to identify the depth to various seasonal water tables." You state that you believe this memo is outside of the law and that "Act 402 speaks to a soil bore." You therefore request my opinion as to "whether or not this memo is within the parameters of Act 402 of 1977."
RESPONSE
In my opinion Act 402 of 1977 does not control the question of whether a "soil bore" or a "soil pit" is necessary in determining soil suitability for an individual sewage disposal system. Act 402 of 1977, codified at A.C.A. §§ 14-236-101 to -118 (Repl. 1988 and Supp. 2001), does not mention "soil bore" tests or "soil pit" tests. The applicable regulations, however, "Rules and Regulations Pertaining to Sewage Disposal Systems," provide in pertinent part at Rule 2.8:
Required tests. A soil bore or pit is necessary to determine the suitability of a soil for a septic tank system. Since subsoils can vary widely in short distances, the determination must be made at the site of the proposed system. The minimum depth of the determination is to a depth from four (4) feet below the bottom of the proposed soil absorption system. The minimum information to be obtained from the determination is:
A. The type and depth of the various soil layers. This includes both pervious and impervious strata and their relationship with the proposed soil absorption system.
B. The depth to the seasonal ground water table. During wet periods this can be obtained by actual incasement and during dry periods the depth to indicative soil mottling is to be reported.
C. Depth to rock or strata that cannot be penetrated by conventional digging equipment.
(Emphasis added).
This rule refers to a "soil bore or pit." The current regulations appear to authorize either method as an initial soil suitability test.
With regard to your question as to whether the memorandum in question is "outside the law," the answer to this question may depend upon all the relevant facts. As to the enforceability of a Health Department memorandum issued without compliance with the Administrative Procedures Act, or review of the House and Senate Joint Interim Committees on Public Health, Welfare, and Labor or appropriate subcommittees, I have enclosed a copy of Op. Att'y. Gen. 99-215 for your review. I have also enclosed for your review two Attorney General opinions issued to you on related questions (Ops. Att'y. Gen. 99-257 and 99-083) should you need to review further information on this topic.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh
Enclosures.