The Brown County Board of Health is set to take another look at the county’s revised septic system ordinance next week before sending it onto the county commissioners for hearings and possible approval.

The health board last met in November to look at the latest version of the ordinance, which has been through at least four rewrites since the current one was passed in 1997.

One of the additions in the version that the board will see on Tuesday, Jan. 21 is the “bedroom affidavit” clause. In January 2019, the health board voted to honor a state law that says that a person could build a house with multiple rooms that could be considered bedrooms, but declare that only a certain number actually will be used as bedrooms. Therefore, the owner or builder would be able to put in a smaller septic system than he normally would have if all those rooms would have been used as bedrooms.

The “bedroom affidavit” option is available to owners of new-build homes and of existing homes.

The section that was added to the current draft of the septic ordinance says: “The Brown County Recorder shall record any bedroom affidavit required by Indiana Code 410 IAC 6-8.3 Sec. 6 (2) to exempt any potential bedrooms in the definition of bedrooms for the purpose of sizing an onsite septic system for a residence. A copy of the recorded affidavit must be supplied to the Brown County Department of Health before any onsite septic system permit can be issued.”

The health board had supported the bedroom affidavit, but the health department’s chief septic inspector, John Kennard, had not. He continued to voice objection to it at the Nov. 19 meeting.

He cited knowledge of an eight-bedroom home that was under construction in Brown County, in which the owner had promised that only three potential bedrooms actually would be used as bedrooms. The others would be libraries and offices for the couple who would live there. The builder’s plan was to put in a septic system sized for a three-bedroom house, Kennard said.

Kennard worried that when this home sells to new owners, those new owners — or even the current ones — could or would use all eight potential bedrooms as bedrooms, overloading the system and causing failure and environmental pollution.

Even if the owners did file this affidavit, he was concerned that that information wouldn’t get passed to any new owners, or that the new owners might not care and use the house as they wished. Then, the problem would be back in the health department’s lap, with limited power to enforce the rules.

This was an extreme case, with a home that big potentially having that small of a septic system. But Kennard said there are many other existing homes in the county currently being marketed as having more bedroom capacity than their septic systems were sized to serve, and he didn’t believe that the affidavit limiting the number of bedrooms would be communicated to new buyers either through the recorder’s office or local real estate agents.

“I do not want to see an affidavit in our new ordinance,” he said. “To me, it’s the health department that makes a determination on how many bedrooms you’re going to have.”

The current draft of the septic ordinance incorporates the state’s definition of a bedroom, which is a room “that the local health department and the owner agree could be occupied for the purpose of sleeping and contains: (a) an area of 70 square feet or more; (b) at least one operable window or exterior door for emergency egress or rescue; and (c) for new construction, a closet.” A previous draft had included a loft as a bedroom, but that is not in this version.

The state ordinance and the local ordinance draft also consider a jetted bathtub with a capacity of more than 125 gallons to be a “bedroom equivalent” for purposes of sizing a septic system.

“If this is adopted as it sits, we are … giving people the opportunity to lie at the onset and then try to catch the guilty party at the end, and we are, from an environmental standpoint, worse off, because now, we’ve given them a right to lie, and they’ve been lying all along,” Kennard said about homeowners who have a mismatch between bedrooms and the size of their septic system.

The smallest size of septic system that the current draft ordinance allows is a 1,000-gallon system, which is designed to serve a two-bedroom home.

“I’m not saying all Realtors are bad,” Kennard added later in the discussion. “But if we have to rely on one entity to pass the truth onto a potential buyer, that’s where the breakdown is going to come.”

The health department’s mission is to protect and to prevent things like disease, he said, not to wait for problems to happen and then try to correct them.

Health board President Thomi Elmore said that she feels for Kennard’s point and situation, but the health board knows how contentious this issue has been, and she didn’t believe a new ordinance would get passed that requires every home’s septic system to be sized to the number of bedrooms it could be considered to have.

The health board had tried in 2018 to advance a draft of this ordinance that did require a septic inspection whenever a property was sold. That draft said that if the septic system wasn’t working, wasn’t up to code or wasn’t the right size for the home, it would have to be upgraded. The public rejected that version during a lengthy hearing, and the county commissioners sent the draft back to the health board for a rewrite.

If the commissioners would at least look at this version and get the public hearing process started, maybe the following year, the health board could look at the issue Kennard was referring to, Elmore said.

“It’s significant,” she said about his concern, and of making sure buyers know exactly what they’re getting into. “We need MIBOR (an area real estate agent group) on our side.”

Health board member Linda Bauer said she was “on John’s side” about the concerns he was bringing up with affidavits. “This was supposed to help, with the recording of the affidavit or some small form that the Realtors or MIBOR or actual people who sell their homes would be honest enough to say ‘This is what I have.’ Whatever those people decide to do with the home after the fact, you cannot do anything about. But it’s about giving them the actual information upfront to say, ‘Just to let you know, you’re getting a three-bedroom (septic), so that when something happens, you are responsible, and you’d better start saving your money today, because that day will come.’”

Complicating that issue is that when people come to Brown County from cities, they aren’t familiar with septic systems, so they might not know how they work or why they need one of a particular size, Bauer said.

She added that unfortunately, a lot of people don’t want to be concerned with the fact that what they do on their own property can affect other people in a negative way. “That’s why we have rules in place, to protect the health and safety of everyone in this county,” she said.

Other concerns, additions

In September, the last time the health board got close to sending a rewrite to the commissioners, county residents brought up other concerns with the new proposed rules.

One of them was the practice of “pump-and-haul,” or periodically pumping out a septic tank and dumping the waste at an approved facility. This practice is allowed by state law, and can be helpful to residents who are living with a septic system that is not working properly.

The September version of this proposed ordinance did not mention pump-and-haul, but committee members later clarified that that’s because everything in the state’s septic rules was automatically included in the county’s proposed rules without being specifically spelled out one by one.

If someone needs pump-and-haul, they can come to the health department and fill out forms, Elmore said. The local health department allows that practice on a year-by-year basis, she said.
Resident Sherrie Mitchell said the rules for this county weren’t clear — whether someone is allowed to do this for one year only, or if it can be an indefinite situation.

Elmore said that if someone can keep renewing that one-year permit, then that’s indefinite.

Mitchell said she’d like to see that in writing, “so that people do realize that the health department is here to help them to save their biggest asset,” their home.

Elmore said that point was “duly noted.”

Later, Elmore said that a separate operations manual for the health department was being developed, and the procedure for using pump-and-haul would be in there. When it’s finished, it would be available on the health department’s website for people to see, she said. It was not posted as of Jan. 8.

In a phone call on Jan. 9, Kennard said that the SOPs are not close to being done. Local resident Jim Kemp had volunteered to help health department staff with them. Kennard said that last time that small group met, they were hung up on definitions of such things as salvage yards and “homes in want of repair,” and pinning down specifics from state code and legal interpretations of those rules.

Putting the health department’s operating procedures in writing was beginning to look like a much bigger job than originally thought, Kennard said.

“As I have talked about in meetings, we’re not lawyers, I’m not a doctor, so when I read the code … I’m interpreting it in a certain way, but that is not necessarily the current legal interpretation based on today’s lawyers. So, how do you write an SOP for, basically, something you can’t enforce?” Kennard said. “Well, you don’t. There’s no reason to do it. … That explains the lack of enthusiasm on my part.”

One other detail wasn’t in the version of the ordinance discussed at the Nov. 19 meeting, but is in the one prepared for the January meeting: A required distance that a septic tank must be from the structure.

Section 203 now says: “For new residential construction, major repairs, and replacements, all tanks for two bedrooms or less must be a minimum of 1,000 gallons. Placement of all septic tanks shall be a minimum of 10 feet from the structure and a maximum of 25 feet from the structure.”

The state’s “rule 410” for septic systems says that septic tanks must be at least 10 feet from a structure, but the state does not specify a maximum distance.

Kennard said that the state rules for septic systems used to list a maximum distance for tanks to be placed from homes, but when they were rewritten in the early 2010s, that was taken out, and he didn’t know why. In his experience and opinion, the farther a septic tank is from a structure, the more likely it is to have a blockage, he said.

The health board will meet at 4 p.m. Tuesday, Jan. 21 at the County Office Building’s Salmon Room.

READ THE ORDINANCE: http://www.browncountyhealthdept.org/page-7/page-11/