Request By:
Mr. James W. Ingram
Health Environmentalist, III
Clark County Health Center
121 East Lexington Avenue
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your request for an opinion concerning the exemption of farms or farmsteads from the Clark County Individual Lot Subsurface Sewage Regulation.
It is the opinion of this office that farms are not exempt from compliance with the regulation. The regulation was enacted by the Clark County Board of Health pursuant to KRS 212.230(1)(c), which provides in part:
County, city-county, and district boards of health shall:
Adopt, except as otherwise provided by law, such rules and regulations not in conflict with the rules and regulations of the department for human resources, as may be necessary to protect the public health of the people . . .
The foregoing statute provides a broad grant of authority to the various boards of health to enact regulations to safeguard the health of the people. The powers so delegated by the Legislature should be liberally construed.
Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535, 108 S.W.2d 181 (1937).
A prior decision by the Court of Appeals, now the
Supreme Court, Barnes v. Jacobsen, Ky., 417 S.W.2d 224 (1967), upheld a sewage regulation similar to the one in question. The Boone County Board of Health adopted the regulation which required a permit for the installation of a private sewage system and set forth the conditions required for the issuance of the permit. While the Barnes decision did not specifically discuss the validity of the regulation as applied to farmsteads, the Court did state that all matters of sewage disposal are subject to the police power of the state.
The question of the exemption of farmsteads from compliance with your regulation arises from the express exemption of farmsteads from the scopes of the State Plumbing Code found in KRS 318.015(3). The regulation in question, however, does not attempt to force farmsteads to comply with the provisions of the State Plumbing Code, but merely requires that certain minimum standards of percolation be satisfied before a private sewage disposal system may be installed. The Clark County Board of Health may require compliance with the standards set forth in the regulation, but may not specify the particular method by which to accomplish its directives. See
Purnell v. Maysville Water Company, 193 Ky. 85, 234 S.W. 967 (1921).
The State Plumbing Code also provides for percolation tests prior to the installation of a private sewage disposal system. A copy of 401 KAR 1:105 is enclosed for your convenience. Section 9 of this regulation expressly provides that the state regulation shall not supersede more stringent local regulations. This recognizes the ability of the local boards of health to enact regulations more exacting than those of the State Plumbing Code, including regulations which apply to farmsteads.
Your second question of what constitutes a farm is moot in view of the opinion that farms are not exempted from the application of the regulation. A prior opinion of this office, OAG 67-208, fully discussed the definition of "farmstead" as found in KRS 318.010. A copy of this opinion is enclosed for your convenience.
In summary, it is the opinion of this office that farms or farmsteads are not exempt from the application of the foregoing regulation as promulgated by the Clerk County Board of Health. This result stems from the broad statutory grant of authority to the boards of health and from the liberal construction accorded those powers delegated by the Legislature.