The Brown County Commissioners will have the first reading of a proposed, rewritten septic ordinance at their March 18 evening meeting.
The first reading had been scheduled for the evening meeting in February, but it was postponed since no members of the Brown County Health Board were present to give their recommendation on the ordinance and to explain the rewrite.
Since many residents were there to give their opinions, the commissioners still took public comments. “I’m not in favor of moving forward with it without them being here,” commissioners President Jerry Pittman said.
“But since you’re all here, I want to hear what you have to say about it, whether it’s good, bad, ugly or whatever.”
Committee speaks
A committee of volunteers has been working on the ordinance for more than a year. Committee members Kara Hammes and Richard Hall introduced the ordinance and explained the process the committee went through to complete the rewrite.
Hall has been a full-time resident of Brown County for three years. He owns a home on Helmsburg Road.
“I am told my septic works, but I have no idea where it is, I don’t know how big it is, I don’t know if it’s actually functioning the way it should be. It just occurred to me that this was an important issue,” Hall said about why he volunteered to serve with the committee.
“Brown County has some unique challenges due to topography and soil conditions. The goal of the committee was to determine things that make Brown County unique good and bad, and how the ordinance should be drafted to be layered on top of state law, those things that make Brown County unique. … No one is out to get anybody; it’s just healthy debate and good practice to have septic systems that work properly.”
Hall said a preamble was added to the beginning to explain some things. One of those points is that even though state septic rules are not repeated in this county ordinance, the county also adopts those, since they already exist.
Hammes has been living in Brown County for about three and a half years. She is the agriculture and natural resources and human sciences educator at Purdue Extension. She has a master’s degree in public health and has a real estate license.
“If you have any recollection of the last one of these ordinances that was presented to you, what’s here now is very, very different than what you’ve gotten any of the last times, or even what the current ordinance in place in Brown County (from 1997) looks like,” Hammes said.
Two years ago, when the commissioners sent the prior septic ordinance draft back to the health board to redo, Biddle said one of the main points of contention was requiring point-of-sale inspections, as well as the definition of a bedroom. Point-of-sale inspections were removed from this draft, and the state’s definition of a bedroom was adopted.
Instead, homeowners are given more leeway to say how they are going to use their house. If they have more possible “bedrooms” than the actual number of rooms they are using as bedrooms, they can file a “bedroom affidavit.”
“This ordinance would allow for the affidavit that would allow for a smaller-sized septic system with that size of a house. That was something we wanted to see, that affidavit. It would be now recorded by the recorder’s office,” Biddle said.
“Of the last couple of ordinances I sat through, this is probably the best I’ve seen,” she said.
“We cannot do anything less than the state code. If we didn’t do anything here, the state codes applies to Brown County. We can’t do anything less than that,” Pittman added.
Two residents spoke in favor of the ordinance and one letter also was submitted in favor.
Against it
Thirteen residents spoke against certain sections in the ordinance or asked clarification questions about it.
Most comments focused on the sections about fines that can be levied against homeowners if they don’t fix failing septic systems; the rules about when an installer is required to be on site during installation; the certification of installers; when a health department employee can go on a person’s property; and standard operating procedures for implementing the ordinance.
The hearing lasted almost two hours.
Resident Kevin Fleming questioned the commissioners about having the data to back up the need for a septic ordinance rewrite.
“Do you know how many septic systems there are in the county? Do you have data on how many of them have failed?” he asked.
“The ordinance is meant to address a problem, but do you know there is a problem? Do you have data?”
Biddle said the county needs to address the ordinance regardless.
“We definitely understand there’s a lack of hard data on the septic systems in Brown County because there was no requirement for any documentation up until the mid-’60 or maybe even in the ‘70s,” Pittman added.
The health department is currently working on compiling records and creating a spreadsheet of septic data in the county.
“There are a lot of septics put in Brown County in the ‘40s, ‘50s and ‘60s that are still out there operating. My own septic system was probably put in the mid-’60s and working fine. Not everybody’s does,” he said.
Looking ahead
Toward the end of the public hearing, Biddle said she was encouraged to hear that the majority of comments were focused on a few sections.
“I think the commissioners can get together and we can figure out a reasonable accommodation to make this all work for everybody,” she said.
Pittman said the residents had brought up “very legitimate concerns” about the ordinance and that he agreed with most of them.
“We will go back and there’s going to be some modification to it or I will not vote for it,” he said.
“I want this to be fair to the people of Brown County. One of these days, I may be sitting out there and John (Kennard, a septic inspector for the county health department) may be coming to look at my failing septic systems, and I want to be treated fairly. I want all of you to be treated fairly.”
Biddle said the commissioners may be able to craft recommendations for language changes to the ordinance without sending it completely back to the health board to redo, but that wasn’t definite. She said she would check with County Attorney Jake German. A lawyer with Barnes and Thornburg was at the meeting on Feb. 19 since German could not attend, but she did not offer any answers when legal questions arose; rather, she made notes on questions that needed answers.
“Why don’t we check with legal representation on some of these questions while they are here? You’re paying them, right?” Navarro said.
“Yes. I just don’t want to put her on the spot because she was not prepared for this hearing this evening,” Biddle responded.
Biddle thanked everyone in the audience for their comments and the committee for their work on the rewrite.
“What I am seeing right now is a largely good ordinance with the exception of five sections that people have some disagreement with and I think we can work with those five sections that are causing the most anxiety to people,” she said.
“I think those five sections are easy enough to come up with some kind of a compromise.”
The March 18 commissioners meeting will start at 6 p.m. in the Salmon Room at the County Office Building.
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The septic ordinance does not explain how these rules will be carried out within the health department. Previous discussions about the ordinance rewrite had identified a need for standard operating procedures.
At the Feb. 19 meeting, county commissioner Diana Biddle said she had seen an SOP document that the health department put together. “Once we do pass a new ordinance, there is already a working document in place that is already 50 pages long that will coincide with this document in terms of operating procedures and standards of practice,” she said.
“Isn’t that sort of like ‘We have to pass the bill so we know what’s in it?'” resident Paul Navarro asked.
Biddle said the health board would not approve the SOPs until the ordinance passes, “because the language changes in the SOP. You still have to have a substantial ordinance in order for the SOP to be there.”
Resident Tim Clark said that a lot of the questions residents were asking about the ordinance could have been addressed in SOPs.
“They shouldn’t have to ask. They should be part of the process,” he said.
“Everything talked about tonight, like how does the fine work? Where does the money go? All of that is part of a simple SOP,” he said.
He also asked the commissioners what the specific problem is that they are attempting to solve with this ordinance. “What is the justification for exceeding state requirements? What’s the cost of that? What’s the benefit of that? What are the risks associated with that?” he asked.
He volunteered to work with the commissioners on developing a “support package” for the ordinance. He also suggested creating administrative management and customer focus groups to look at the ordinance.
“When people look at it, they will understand what the justification is for the ordinance…We may not agree on some of these things, but we certainly can agree on a process, the justification of risk, cost benefits,” he said.
In his written comments about the ordinance, Clark also suggested that a pump-and-haul option be spelled out for residents who have failing septic systems.
Resident Dianne Barriger said she was concerned to discover the SOPs now exist after hearing they were not written in January.
“If they exist, they should be a public document,” she said.
“You need to be able to know what it is that goes with it, or else you have nothing.”
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Here are the comments made from residents on specific sections of the proposed rewrite of the county’s septic ordinance. The Brown County Commissioners took comments on the proposed ordinance at their Feb. 19 meeting.
SECTION 106
“All permits issued for construction of a private onsite sewage system are valid for a period of one year from date of issuance. All construction must be completed within one year from date of issuance of the septic permit; otherwise, applicants must reapply and receive a new permit and pay another permit fee. When laws change within the timeframe the permit is active, the permit shall be deemed grandfathered as issued. Renewal permits are subject to applicable Indiana law and this ordinance, all as amended from time to time.”
Tim Ford is a licensed certified septic contractor who owns T & M Transport & Excavating. At the meeting, he said he had issues with the phrase “time to time” in the above section.
County commissioner Diana Biddle said that the last sentence of the section could be stricken since it is redundant.
SECTION 203
“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.”
Dave Wagler owns Wagler Brother Excavating and is a licensed certified septic contractor. He told the commissioners on March 19 that overall, there are good sections in the ordinance, but that he had issues with two of them including section 203.
“The state has no rule from a maximum distance of structure and I just don’t think that’s really necessary. … It could be omitted,” he said.
Ford said this section limits the contractors. “When you do that, you take out the contractor’s best judgment. He’s the guy designing it; he’s the guy installing it. You’re putting limitations on it. It don’t always work that way in our county with the hills and special terrain,” Ford said.
SECTION 212
“A perimeter drain is required on all four sides on all sand-lined systems and sand mounds unless a change or exemption is approved by the Brown County Health Officer prior to installation.”
Ford said this section does not consider a system that has been installed on a slope, which is installed differently than a system on flat ground.
SECTION 213
“The high vent on sand-lined systems requiring such vent requires a four foot anchor pipe attached to a “TEE” coming off of the distribution box for stability.”
Ford said this didn’t sound like the most stable way to install it. “It makes more sense to set a solid post and hold that pipe steady. The sun won’t melt it, it won’t fall over. … We try to keep the septic system so far above the rock layer in the ground, then we’re going to dig a hole 4 foot down right there by it? I may be wrong, I may not understand what they’re trying to do here, but I don’t understand this stuff, and I’ve been doing it for 35 years.”
SECTION 301
“For the purposes of this ordinance, a landscape modification means any excavation or alteration of landscape or surface area within or adjacent to an onsite sewage system as defined in Rule 410 IAC 6.8-3-57.”
Ford said he had a problem with this section and was unsure what the word “adjacent” referred to in the section.
“Is it 5 feet or 10 feet, 150 feet? I have no idea what that even means,” he said.
SECTION 302
“Prior to any landscape modification, room addition, or the installation, major modification, repair or replacement of a driveway, barn, shed, swimming pool, etc., the property owner shall obtain a septic record or septic locate approved by the Brown County Health Officer to ensure there are no encroachments on or into the onsite sewage system area. Any changes from the septic record or septic locate must comply with Section 210 herein.”
Ford’s business also repairs driveways, and he said this section concerns him. “If I go out here and I fix someone’s driveway, will I lose my license?” he asked.
“If the guy goes, ‘Put it right here,’ (and) if I go, ‘I ain’t putting that there,’ how long will I be in business? That is affecting me big time. … The wording in this stuff is killing me.”
Resident Steven Kakavecos said he, too, had an issue with this section. “That section also uses words like ‘barns,’ but it doesn’t define it. If I put in a little kid playhouse, do I have call someone out to inspect my property?” he asked.
Biddle said this was a section that they spent an “exuberant amount of time on during the last hearing.”
“Points are all taken,” she said.
SECTION 503
“A Brown County registered septic contractor must be on site throughout the installation process.”
Wagler said this section is not necessary.
“There have been problems in the past that brought this forward, where someone out of town came in and nobody was there that could speak English,” Wagler said. “That’s not my fault. Be careful on how you hammer on the people that are trying to do a good job.”
His main issues were with sections 203 and 503, but he said he would accept the entire ordinance rather than sending it back to the health board over removing the two sections in question.
Pittman said the five inspections that are required of a new septic system should eliminate any problems with the septic that happened during installation. “As long as the work gets done right, and it’s inspected then it’s approved, who cares who was there that did it? That’s kind of the way I look at it,” he said.
One of the health department’s septic inspectors, John Kennard, said that some septic installer assistants are not as well trained as the installers themselves. He likened it to wanting a cardiologist in the surgery room the entire length of a surgery. “That’s the person that has gone through this certification, just like the cardiologist went and got his degree from wherever. That’s the same professionalism we put in with our installers,” he said.
Resident John Simpson also opposed this section. “We don’t need the language that the installer needs to be there throughout. I think it creates a higher cost to installing septics here in this county that is already higher than it needs to be,” he said.
Pittman said requiring a certified installer to be on the job site every minute is “unreasonable.”
“I think that’s why we have inspections to make sure the work was done properly before it’s covered up and we can’t see it,” he said.
Pittman said that installers do need to be licensed by the county, “but I don’t think that we want to necessarily say that guy has to be there all the time,” he said.
Ford added that any time there’s an inspection, the contractor should be there.
“You don’t leave it up to the subordinates to meet with the health department and have discussions on what was done right and what was done wrong,” he said. “After the system is installed and somebody is raking dirt clods or putting down grass seed or straw, me or Dave don’t need to be standing there. We have better things to do. We could be moving equipment to the next job.”
ARTICLE SIX – Registration for septic installers
“In an effort to avoid unnecessary and preventable losses and expenses for property owners, contractors and other installers shall be required to satisfy all requirements for registration as a Brown County registered septic contractor; it being understood that soils conditions and slopes of Brown County can present unique and difficult challenges requiring particular knowledge and expertise.”
Resident Sherrie Mitchell said she was “strongly opposed” to article six of the ordinance, which requires septic installers to be registered to work in the county. “As long as there are five inspections, who cares whose putting it in?” she said.
“I don’t need my contractor certified by John Kennard prior to installation because he will be coming out five separate times (to inspect). … I think you’re creating a monopoly by not allowing us to pick any installer we want.”
SECTION 604
“The Brown County Health Officer may remove the name of any person or firm from the register of approved persons for the installation, construction, and repair of onsite sewage systems if the person fails to comply with all rules and requirements of this ordinance.”
“I’d like to see that removed,” Simpson said.
“It should be based on due process and not on the prestige or potential authority of the Brown County Health Officer.”
SECTION 701
“The Brown County Health Officer, or the Health Officer’s agent bearing proper credentials (Brown County Health Department issued identification badge), shall be permitted to enter upon all properties for purposes of inspection, observation, measurements, sampling, and testing necessary to carry out the purposes and intent of this Ordinance.”
“I think this is extremely dangerous,” Mitchell said.
“Indiana having some of the stronger ‘stand your ground’ laws in the country, I think you’re putting a health official in jeopardy by not telling them when they can go, when they can’t go, Monday through Friday, 9 a.m. to 5 p.m. and giving notice. Credentials on a person alone trespassing on your property will not stop a bullet.”
She also said a possible lawsuit could happen if an employee from the health department is shot. “Can they come back and sue us because we did not stipulate a specific time for them to go on to properties? Are we going to be in trouble?” Mitchell asked.
Resident Kevin Fleming said this section gives him a “great deal of discomfort” and is a “sure invitation for tragedy.”
“I don’t think the police have that sort of authority. I think the police have to have probable cause,” he said.
Resident Ron Fleetwood also opposed this section since it does not require notification before a visit.
Biddle said that section needs to be “a little more specific.”
SECTION 702
“If the property owner or agent of the owner requests an inspection, the Brown County Health Department may require additional information regarding the onsite sewage (septic) system in order to provide an accurate and adequate inspection. If the Brown County Health Department does not have sufficient information on the current septic system on file, the requestor must hire a registered service provider to locate the septic system, prepare a drawing of the system and complete and submit a septic system information form.”
Ford questioned the use of “registered service provider” in the above section and that there’s no definition for it.
“It doesn’t say a ‘registered septic contractor’ like it says all through the rest of the code,” he said.
SECTION 801
“If the septic system for a guest rental including, but not limited to tourist homes and bed & breakfasts, does not meet current standards, the septic system must be upgraded to meet or exceed current standards.”
“I have put septics in tourist homes here in the last couple two or three years that are no longer going to be up to code. They just spent $15,000, and now they won’t be up to code. What if they don’t have any more room?” Ford asked.
“Some of them I put the perimeter drain around the bottom because they’ve been pushing that on us for the last two years, so now I have a perimeter drain within 10 foot of it. How will I make it bigger? I have no room there now.”
SECTION 803
“For guest rentals, the number of guests will be determined by the sleeping features: Twin/cot equals 1 person; double/queen/king equals two people; sleeper sofa/sleeper loveseat equals two people.”
Ford questioned who would enforce this section and count beds in each guest rental.
“How do you put stuff like that in the code when it’s unenforceable? I understand what they’re trying to get at, but when you put this stuff in the law, there has to be some meat behind it, and there has to be some understanding so people know what you’re talking about,” he said.
ARTICLE 10 – Penalties
“In order to insure public health, the Brown County Board of Health has authorized the assessment of penalties, including fines and/or injunctions. These penalties are intended to promote compliance with the requirements of this Ordinance.”
Article 10 relates to penalties for not following the septic ordinance. The article has four sections: 1001, 1002, 1003 and 1004.
According to section 1001, anyone found to be in violation of the ordinance shall be subject to a fine no more than $500 for the first offense. For any offense after, the fine can be no more than $1,500.
“Thirty days go by and that’s $45,000. I think I heard someone else say maybe a septic was maybe $10,000 or $15,000? Unless you have a $1 million home, then I’m sure it’s a lot more,” Kakavecos said.
“It just doesn’t seem like the fine meets up with the offense. I know septics are important, but you’re talking within 30 days charging someone $45,000. That’s probably half the cost of more than some people’s homes. You can’t be taking people’s homes. That’s ridiculous.”
Biddle said the board of health would have to file a petition with the court, similar to the process for planning and zoning, where fines could be reduced by the court. “It’s not like you have to write a check to the health department just because they say so. You do have legal recourse,” she explained.
Kakavecos also questioned the part which states anyone can appeal the decision by the health department to the health board within 15 days and the board would hold a hearing on the matter at its next meeting or within 60 days. “‘You talked to the health department person, now go to talk to the health department board.’ It doesn’t seem like much of a separation there. I’m going to talk to the same people I talked to a second ago?” Kakavecos asked.
Biddle said the health board is different from the health department. The board is made up of a pharmacist, two nurses, a lawyer, three laypeople, a couple of doctors and a real estate agent. “The health board is quite a bit more diverse than the health department’s field officers,” she said.
Commissioner Dave Anderson said the penalties are “unnecessary” and “harmful to honest people.”
Kennard said the reason for fines is to “have people recognize that if your neighbor’s failed septic is on your yard, your family is dangerously close to a major illness.”
“We are trying to protect the environment and the citizens of this county,” he said.
“We’re going to go through this process to try and get it resolved. If you refuse to get your septic fixed, we resort to that.”
Kenneard said that the health department has not fined anyone in the 20 years he’s been working there.
“Then the language shouldn’t be in there,” Kakavecos said. “It shouldn’t be in there or drastically reduced with a cap.”
Resident Paul Navarro asked if the penalties were an “intimidation factor.”
“Why have them that high in the first place if we know they’re going to be reduced?” he asked.
Biddle said that sometimes, the fines are statutory, and she was going to research if the fine amounts in the ordinance are required and how they compare to other counties.
Resident Paul Nelson asked where the fine money would go after it’s collected. Nobody had an immediate, definite answer to that.
Resident Dianne Barriger said this section of the ordinance needs to also state that a person has a right to go to court, whether or not they can afford it. “If those people don’t know, first of all, what their rights are, don’t have the money to be able to afford lawyers to give them advice, then they are totally at the mercy of someone’s precious whim,” she said.
“That needs to be spelled out, because otherwise, people won’t know and they lose their right to appeal in court. In the case of state law here, they lose that right either two days after the issuing of an order or 13 days after the issuing of an order depending on how the order is sent to them. That is less than 15 days.”
Miller said he installs septic systems for a living. “Does everybody in this room know that the state, the rule is you get condemned? You don’t pay a fine; you get thrown out of your house. That’s what the state code is. You guys know that, don’t you?” he asked.
“You don’t need a fine. Condemn it. I’ve sat here with all of this. You guys have got to do something. … I’ve been to these meetings and I’m sitting here just shaking my head at everybody. First of all, if your house gets condemned, that’s by the state and you get thrown out. … If you want to pump and haul, knock yourself out.”
He encouraged the commissioners to get the ordinance “in the books.”
“You’ve got a bad septic system that needs to be fixed, don’t sit there and cry on everyone’s shoulder. It’s got to be fixed,” he said.
Resident Vivian Wolff said the septic ordinance is an issue that touches the entire county, including economic growth.
“Economic growth is dependent upon whatever decisions are made here. We have affordable housing that is an issue. We have land costs, then when you put in the costs of a septic system on top of that, or an existing home where people have to come up with money, and they’re talking about fines,” she said.
“One study shows 53 percent of people in Brown County make $30,000 or less. Then you’re putting these kinds of fines, you’re talking about condemning homes. … I think that’s not a solution.”
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