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Part Three
By Elizabeth Dietzmann
In Part Two of this series, I concluded with the statement that while point-of-sale inspections have many limitations, they are a valuable tool if, ideally, they are incorporated into an overall inspection and maintenance program for onsite systems and used in conjunction with a permitting program that requires ongoing monitoring. I also noted that while it is now commonplace to require operating permits as part of the inspection and maintenance programs for advanced treatment systems, it would be political suicide to require operating permits for traditional septic systems. Local governmental entities realize that they would face strong political backlash if they attempted to implement an integrated permit and point-of-sale inspection program for traditional onsite systems.
Certainly a few communities, such as Sedgwick County, KS, surrounding Wichita, have made this leap. But that program has still not tackled the challenge of regulating all traditional septic systems. They have phased in a permit program for advanced onsite systems and now require point-of-sale inspections for all onsite systems but have not made the transition to requiring permits and point-of-sale inspections for all onsite systems. The fact is that the majority of onsite systems that are both in the ground now and being installed today are traditional septic systems. This means that the majority of onsite systems that would be permitted and inspected are traditional septic systems. In Florida, for example, out of approximately 60,000 onsite systems installed between 2000 and 2006, only 3,400 were aerobic treatment units, defined as a system meeting NSF Standard 40 Class 1 standards—in other words, something other than a traditional septic system. (Interestingly enough, from 2000 to 2005 about 300 to 400 advanced systems were installed each year, with nearly 1,300 advanced systems installed in 2006.)
This distinction between advanced treatment and traditional onsite systems is an important one and affects the implementation of point-of-sale inspections. I look at them as active versus passive systems. The average owner of an advanced onsite system has made a bigger investment in order to have the system installed, probably had to do so in the first place because the receiving environment was more sensitive, and at a minimum will have to agree to operations and maintenance terms for the first two years for an NSF Standard 40 Class 1 ATU. These systems are more complex and, very simply put, contain more moving parts and do more proactively to remove pathogens and nutrients than traditional septic systems. The owners of these systems are used to having inspections performed as a condition of getting their systems installed in the first place.
Traditional septic systems work wonderfully well under the proper conditions, but they are more passive. They do not have moving parts like blowers and pumps and, more importantly, the owners are not conditioned to inspection or maintenance of the systems. Let’s face it: We have all dealt with the traditional septic system owner who thinks it is a badge of honor to have an unmaintained system. “I’ve lived in this house for 15 years and never had my septic tank pumped. Why should I have it inspected in order to sell my house?” Ironically, this is probably the same guy who wouldn’t even dream of driving more than 3,000 miles without changing the oil in his car, and the older his car gets the more he probably uses performance-enhancing additives! You can bet this same guy would vote out any county commissioner or township supervisor who suggested implementation of a point-of-sale program.
Because this mindset is so pervasive, more and more states are taking the political pressure off local government and implementing point-of-sale inspection programs at the state level. While the state may face opposition from many special interest groups, such as real estate associations (see Part One), they seem to be able to override the “no maintenance” mindset of many traditional septic system owners. New Mexico, Massachusetts, and Arizona have all adopted statewide point-of-sale programs.
While all three programs address the issues raised in Part Two of this article concerning qualifications of inspectors and inspection standards, Arizona and New Mexico have taken it a step further and combined point-of-sale inspections with permitting programs designed to cover all existing advanced and traditional septic systems.
Each state has approached this problem from slightly different but innovative perspectives.
In New Mexico, under the Liquid Waste (Septic Tank) Program, property transfers are actually used as a vehicle to drive the registration of all pre-existing septic systems. (See www.nmenv .state.nm.us/fod/LiquidWaste.) The pending sale acts as a trigger. If the system in question is a traditional septic system installed before February 1, 2002, and there is no permit on record (which is most likely), then the system must be adequately uncovered and inspected by the New Mexico Environment Department (NMED) and registered prior to sale. The system owner has to apply for a liquid waste permit and must correct any deficiencies identified by the inspection.
This septic system is now registered in the official database, and the next time the property is sold, the existing permit is pulled up and another inspection will be conducted—except this time it can be performed by a qualified third-party inspector such as a professional engineer or an NAWT-certified inspector.
Technically, all septic systems in New Mexico are presumed to have been registered. This means that when an inspection of an unregistered system is requested, an additional $100 penalty is added to the liquid waste permit fee of $100. Presumably, these funds are used to defray the initial costs of the NMED inspection and registration of the system. Ultimately, all onsite systems in New Mexico will be registered, and point-of-sale inspections will be conducted each time the property is transferred.
Arizona has also been implementing a statewide point-of-sale inspection program designed to ultimately identify all existing septic systems and drive repairs. The Aquifer Protection Permit (APP) program (see www.azdeq.gov/environ/water/permits) creates a presumption that every existing septic system installed prior to January 1, 2001, is automatically operating subject to a general permit and that every system owner is a permittee. This discharge authorization allows the state to require inspection and notification when a property is sold. In order to sell a piece of property, the system must be inspected by a qualified inspector within six months before the sale. That inspector completes a Report of Inspection and gives this to the seller, who in turn, prior to the sale, gives the report to the buyer. The buyer then submits a Notice of Transfer to ADEQ and/or the county within 15 days of the property transfer.
The Notice of Transfer reports on the status of the system and does not actually mandate repairs. The reality is that most potential buyers will request a copy of the Report of Inspection before they make an offer on the property. This allows economic factors to provide the incentive for septic system repairs. According to Arizona regulators, the Arizona Association of Realtors, while initially opposing the program, has now incorporated it into its escrow and closing forms and identifies a sale as “as is” if repairs to conditions noted on the Report of Inspection are not made prior to closing.
While both of these state-level programs have created innovative ways in which to “capture” existing traditional septic systems and drive repairs, and while they have removed the burden of proposing the inspection programs from local authorities, neither program mandates ongoing maintenance. True, Arizona does a very nice job of laying out recommended operation and maintenance requirements, but neither program fully integrates septic system maintenance into its point-of-sale inspection program, and ultimately that is what must be done in order to truly manage onsite systems.
Actually, it appears that Florida may be moving in this direction. This is not surprising in a state where, according to one unofficial estimate, on average all the private property in the state changes hands every seven years.
Whether that number is accurate or not, Florida is certainly one of the states with the highest turnover in ownership of real estate. Florida does not currently have a state-mandated point-of-sale inspection program. Since 2000, guidelines have existed for voluntary inspections in order to set a standard of minimum professional practice. Some counties, like Wakulla, have also adopted mandatory point-of-sale inspections.
However, Florida officials have recently made it clear that as part of a comprehensive plan to protect the state’s springsheds and shorelines, they intend to explore implementation of a septic tank maintenance-and-inspection program that could include upgrading certain onsite disposal systems permitted prior to 1982 to meet minimum Department of Health standards; replacement of failing systems and systems not meeting current standards; and providing funding mechanisms for supporting a septic tank maintenance-and-inspection program.
This movement has stemmed from the 2004 Wekiva Parkway and Protection Act, a state law designed to attain a 10-milligram-per-liter discharge limit for nitrogen in a three-county area (Orange, Lake, and Seminole).
The initial report prepared for the Wekiva Parkway and Protection Act recommended that new regional wastewater management entities be established or that existing ones be modified to oversee the maintenance of all wastewater discharged from onsite sewage treatment and disposal systems in the study area. The management entities would be responsible for implementing a Program Model 4 or 5 management program.
The Wekiva Parkway and Protection Act is still in the rule-making phase, which means that the final implementation of the plan is still under negotiation among state, local, and private stakeholders, but it is being looked to by state officials as a template for statewide protection of springsheds and shorelines. The Department of Community Affairs, the state-level agency responsible for overseeing the amendment of the county comprehensive plans in the Wekiva study area, has identified three tools which it is strongly recommending that Lake County consider adopting in order to assist in implementation of the plan. Those tools are 1) a repair program for septic systems, 2) voluntary existing system evaluation, and 3) (interestingly enough) point-of-sale inspections.
It is also interesting to note that there is rumored to be resistance from the Florida Association of Realtors, one of the stakeholders in the rule-making process, to point-of-sale inspections. This is not a surprise, as many real estate associations oppose point-of-sale inspections—at least until, as in Arizona, they realize how a point-of-sale program actually protects real estate agents and clients and stimulates the sale of property.
Another stakeholder is the Florida Onsite Wastewater Association (FOWA), which has long encouraged point-of-sale inspections as part of its campaign to keep septic systems from being known as “those polluting septic systems.” It is also rumored that FOWA intends to support the introduction of a state law requiring point-of-sale inspections. Clearly, point-of-sale inspections, while controversial, have been recognized as an integral part of any comprehensive program to manage onsite systems.
While there can be problems with performance standards of point-of-sale inspections, and they are no guarantee that a septic system will perform in the future, point-of-sale inspections are an essential component of any truly comprehensive onsite system management program.
Elizabeth Dietzmann is an attorney in Rolla, MO. She can be contacted at edietzmann@earthlink.net.
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- March/April 2007
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