GUEST OPINION: Justification lacking for proposed septic ordinance


By TIM CLARK, guest columnist

The public hearing to be held by the commissioners to obtain citizen input on the proposed new septic ordinance has been scheduled for Nov. 30 at 6 p.m., utilizing Zoom. The decision to approve or identify needed changes in the process and ordinance will be made at a future commissioner meeting.

Past versions of an ordinance have not been passed due to citizen concerns, with a lack of justification for the changes, and fear associated with the administration and enforcement of the requirements by the Brown County Health Department.

This version should also be of concern to citizens. The ordinance goes beyond what is required by the State of Indiana with no specifics or documented evidence as to why the additional requirements are needed.

The likely effects of the ordinance if passed include more bureaucracy and control by the county government, less competition, and higher costs for services. A draft of the policy and procedures manual, also referred to as the standard operating procedures (SOPs), explaining how the new requirements will be administered and enforced, has not been read or reviewed by health board members, nor have the commissioners identified their interest in reviewing the SOPs.

Regarding the policy and procedures manual, this was referenced in the version of the ordinance that the commissioners reviewed in February. The references were removed from the current version of the ordinance by the health board without public input from the commissioners.

Without the documented justification and SOPs to describe how the new requirements would be administered and enforced, the argument for the proposed ordinance can be perceived as being based on ignorance (real or feigned). Unfortunately, using ignorance-based arguments is a common tactic when there is a lack of evidence for a position. The strategy attempts to shift the burden to citizens to prove that change ”is not” needed instead of government officials performing the analysis needed to justify that changes “are” needed. This tactic also allows for plausible deniability by the decision-makers when things go wrong.

Given the one-party monopoly on political power in the county, a more comprehensive and transparent process for proposing and approving change becomes even more critical to ensure that changes in policy are perceived to be intended to benefit all citizens and not just specific group(s).

Suggested processes that incorporate proven practices can be applied to review the scope of change and justify appropriate improvements. An outline of alternative processes for assessing problems and developing solutions was developed by the Brown County Leader Network (BCLN) and posted on their website ( The BCLN is an initiative funded by a $10,000 grant under the Hometown Collaboration Initiative (HCI) that was initiated and supported by the commissioners. Half the grant funds were provided by the Office of Community and Rural Affairs and the balance by the Brown County Redevelopment Commission (RDC). This alternative process embraces the fact that most, if not all, results are due to the system or process. Better results require better processes.

In conclusion, the proposed septic ordinance lacks documented justification. This justification is needed to assure citizens that the proposed changes are needed and will not adversely impact them. SOPs can provide additional assurance that new requirements are understood, and fairly administered and enforced.

The overall process for incorporating a systems perspective and identifying problems and proposing new solutions can be improved. Alternative methods and tools have been suggested by the BCLN. Application of a more comprehensive and transparent process can help provide citizens with further assurances that proposed solutions are evidence-based and supported with a clear understanding as to the scope and extent of a problem.

Part 2 of this column, to include the history and timeline of past efforts regarding changes to septic management and countywide wastewater management strategies, is provided below. This information reinforces the need for a more comprehensive and transparent processes in determining the best options for the county.

Part 2

In my guest opinion column in the Brown County Democrat, “Justification Is Lacking for Proposed Septic Ordinance – better process needed – Part 1” Nov 24, 2020, I reinforced the need for sharing the facts and evidence that were used to support the proposed changes to the septic  ordinance. I also discussed the relevance of a policy and procedures manual, also referred to as standard operating procedures (SOPs). SOPs identify how the new requirements will be administered and enforced.

The septic management issues is part of a broader system for ensuring a healthy and safe environment.

The current septic ordinance was passed in 1997 and allows for changes to ensure compliance with state rules and regulations.  What are the issues with this ordinance that support the need for change?

This version does include a unique county requirement that anyone installing a septic system has to pass a written test uniquely developed and administered by the Brown County Health Department. At the health board meeting on Sept. 15, 2020, supervisory environmental health specialist John Kennard stated that the county’s test is and has been inadequate. (Brown County Democrat “County News: Paving prep work continues; DIY septic causes concern Staff Reports, Sept. 29, 2020).  He stated that an individual, including himself, could pass the test but not be qualified to properly install a septic system.

Besides the “test,” the new ordinance requires additional requirements for a septic system contractor to be registered and be approved as a “Brown County registered contractor.” A new requirement includes providing documentation for a $1,000,000 general liability and completed operations insurance policy. This proposed insurance requirement exceeds what is required by other contractors that are licensed by the county (see Ordinance 12-17-90, A Comprehensive Listing of Contractors Operating within the Jurisdiction of Brown County, IN). This change also reduces options for residents and will likely contribute to reducing competition and increasing costs.

Regarding installations by a citizen (if still allowed) or by their chosen contractor, a county septic permit is required for installing a system and inspections are conducted by the health department to ensure compliance to code.  If needed, the health department can also charge for additional inspections.

In 2012, when Mr. Kennard was also a commissioner, a new ordinance was proposed, challenged by the public and passed by the commissioners in 2013. A lawsuit was filed, and the county judge ruled in May 2015 that the ordinance was not properly advertised, and it was rescinded.  Judge Stewart stated that the 2013 version that was passed was substantially different from the 2012 version that was presented to the public. (Brown County Democrat, “Court: Septic rule invalid; ordinance wasn’t properly advertised” by Ben Kibbey, May 25, 2015).

Septic maintenance and wastewater management

The premise for a new ordinance and the need for a Brown County Regional Sewer District (BCRSD) was reported in a Brown County Democrat Facebook post on May 1, 2013

  • “Brown County Commissioner John Kennard called Bean Blossom an “environmental nightmare” due to many failed septic systems in the town located north of Nashville. The comment came during discussion of forming a countywide sewer district. Kennard said the purpose of the district would be to increase the chances of Bean Blossom acquiring a grant to pay for installation of a sewer system for the town. Commissioners voted 3-0 to pursue formation of the district, which could include a septic maintenance program.”

On May 4, 2018, the Brown County Health Officer Dr. Norman Oestrike and Environmental Health Supervisor John Kennard sent a memorandum to the BCRSD that contradicted that there is an “environmental nightmare due to failed septic systems” in Bean Blossom.

In the memorandum, they estimated that the average age of homes in the area was 58 years and assumed the same average age for septic systems. Without any evidence as to the condition of the systems, they speculated that “systems may not be functioning as originally planned and in fact may be failing.” (emphasis mine).

A report by the Environmental Protection Agency concluded that Conventional septic systems are designed to operate indefinitely if properly maintained.” (EPA 932-F-99-075). The Presby Corporation has also identified a similar finding: “If the system is designed, installed and maintained properly, there is no limit to the life expectancy of Enviro-Septic® Technology.”

The BCRSD was funded with $270,000 of taxpayer money and is proposing a new sewer plant in Bean Blossom on land that was deeded to parks and recreation. Given the results from recent studies, a new plant in Bean Blossom is most likely “not” the highest need and priority in the county for a new system that is funded by federal taxpayers. This project is currently on hold due to unresolved issues with land acquisition.

Citizens in the Lake Lemon area have identified failing systems during flooding conditions and there is citizen support for sewer service.  A new plant that would serve the Lake Lemon, Trevlac and Helmsburg areas would serve more customers. In addition, a new plant would allow for phasing out the aging plant in Helmsburg and possibly lowering costs for Helmsburg customers who are now paying $92.50 a month for service. A recent study by the Town of Nashville identified that they could provide sewer service to Bean Blossom at less cost that what is estimated for a new plant in Bean Blossom.

A grant for a needed county wastewater infrastructure strategy was funded by the Regional Opportunity Initiative. The strategy includes testing of water in creeks and streams. (Brown County Democrat: “Sewer board earns $100,000+ grant to do wastewater plan” Sara Clifford, Jan 28. 2020). The grant was submitted by Clint Studabaker, vice president of the BCRSD. Mr. Studabaker was on the committee that developed the proposed new septic ordinance and is a proponent of expanded countywide sewer service.

If water samples indicate that some contamination might be due to failed septic systems, then additional analysis will be needed. This would likely include additional sampling and identifying the sources in order to assess the extent and scope of the problem.

Proposed updates to the septic ordinance

The recent attempts to pass a new ordinance were started in 2017 (Brown County Democrat, “County weighs septic rule changes” Ben Kibbey, Nov 11, 2017) and again in 2018 (Brown County Democrat, “New septic ordinance proposed by Brown County Commissioners” March 6, 2018).” During public meetings discussing these versions, the public requested that policies and SOPs be drafted to provide more detail as to why county unique requirements were needed and how they would be administered. The SOPs would also help identify the specific problems that one or more sections in the ordinance (solutions) were attempting to resolve.  This would help with follow-up reviews to assess if changes resulted in improvement.

In response to citizen concerns with the previous drafts, the health board developed a special committee to help draft a new version. (Brown County Democrat, “Septic ordinance committee expands, adds members” Sara Clifford, Aug 28, 2020). The current version which was developed by the committee and approved by the health board was passed to the commissioners for approval at their Feb 19, 2020 meeting. The first reading had to be postponed because no members of the health board attended the meeting to explain their justification for the changes.  (Brown County Democrat, “Septic ordinance first reading reset for March Staff reports, Sept 25, 2020).

Regarding the use of special committees, government officials can appropriately delegate “accountability” for development of draft ordinances to the health board and the health board to a committee. However, it is the elected representatives (commissioners in this case) that are “responsible” for the quality of the work and results. This includes explaining to the public the specific problems the ordinance is designed to resolve to include providing references to the supporting documentation. Citizens, through the voting process, are responsible for electing representatives that have and will make informed and fact-based decisions that will result in outcomes where all citizens benefit in the long-term.

Prior to their Feb 19, 2020 meeting, the commissioners did ask for written comments from the public but did not publish a response to the questions and concerns that were submitted. Also, at their Feb 19, 2020 meeting, commissioners did choose to listen to public comments and concerns but then identified their intent to only make minor “tweaks.” (Brown County Democrat, “‘Tweaks’ suggested to septic ordinance”, Staff Reports, Mar 10, 2020).  Due to COVID, the commissioners moved the first public hearing to Nov 30, 2020.

The Brown County Board of Health voted to accept the commissioners’ “tweaks” at its July 21, 2020 meeting. It also voted to remove the reference to the policy and procedures manual (aka the SOPs) at its Sept 15 meeting.  (Brown County Democrat: “More changes made to septic ordinance draft” Joe Schroeder, Aug. 4, 2020)

To obtain a copy of the SOPs, I filed a formal complaint with the State of Indiana Public Access Counselor who concluded that the SOPs were public documents. These documents have since been released by the health department (Brown County Democrat, “Health department releases draft procedure manual” Sara Clifford, Sept. 5, 2020). Although these drafts are incomplete, it’s a start toward documenting a problem and identifying how a solution will be administered and enforced.

The heath board, despite the suggestion from one of its members, declined to read, review, and discuss the SOPs. The board did not believe it was their responsibility. A review of the SOPs would provide the health department documented confirmation that the intent for the changes proposed in the ordinance was understood and that enforcement actions are necessary and reasonable. This review may prevent future appeals to the board and legal action by citizens that believe they were adversely affected by enforcement of the ordinance. The board members’ decision to skip this step can lead to the perception by the public that they did not perform their due diligence. A review of the SOPs by the commissioners would provide another level of assurance that they have the needed information to justify their decision to either approve or require additional changes to prevent any adverse impacts on the citizenry.

Commissioners will be considering input provided from the Nov 30, 2020 public hearing and determining next steps. This could include voting to approve the ordinance without any changes or reviewing the overall process to help ensure that the level of change is appropriate. This would include reviewing the justification for change.

Tim Clark of Brown County is a quality improvement practitioner, educator and author who specializes in the public sector. He is a senior member of the American Society for Quality and has master’s degrees in public administration and strategy. He is a volunteer with the Brown County Leader Network and an admin for the Facebook group Brown County Matters. He has served on the Brown County Redevelopment Commission and on the Brown County Schools Strategic Planning Committee. He can be reached at [email protected].

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