For three hours, with people seated on the floor and standing along the walls, the Brown County Commissioners heard concerns about a proposed revised septic system ordinance Thursday night.
Almost no one said they supported it as written, except for people involved in creating or enforcing it — and even they acknowledged that it wasn’t perfect.
The county ordinance currently in effect was enacted in 1997.
The commissioners went section by section through the new draft, which has been under development since 2015.
[sc:text-divider text-divider-title=”Story continues below gallery” ]After hearing all the comments, county commissioners Diana Biddle and Jerry Pittman voted to send the draft back to the Brown County Board of Health again. Commissioners President Dave Anderson did not attend the hearing due to illness.
What happens with the ordinance next — whether that’s starting over, as audience members suggested, revising this draft again or adopting the state septic code — will be a task the health board will deal with next, Pittman said.
The health board normally meets on the third Tuesday of every other month at 5 p.m. in the County Office Building, in the same room where this hearing took place.
Health board president Thomi Elmore said she’d like to see the health board create a new committee — not including her, since she helped write this last draft — and include county residents on it.
INFO PACKET given at the meeting:
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Before the meeting even started, six people had emailed comments to the commissioners. Only one threw support behind the ordinance changes. Written comments will still be accepted until Friday, April 6, Biddle said.
More comments were dropped in a box at the front of the room as speakers stepped up or audience members left the crowded room.
A sheriff’s deputy was stationed in the hallway, but the discussion remained largely civil. The commissioners reeled in commenters who attempted to publicly question or criticize other people in the audience; comments were to be about the ordinance only.
Many commenters expressed concerns about what this new ordinance does to limit, or not limit, the health department’s power.
In public work sessions about the septic ordinance, several audience members asked for more information about the “SOPs,” or standard operating procedures, at the health department. Health board members agreed that those needed to be put into writing, but not necessarily in the ordinance. They supported the development of a separate document that would explain the process.
When asked March 29 for those SOPs, environmental health supervisor John Kennard sent a 44-word draft called “point of sale inspection transfer of property SOPs.”
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When asked after the meeting if there were any other written SOPs, like what happens to a person whose septic system is found to be in failure, he said they are not written but staff have a “working knowledge” of what the procedures are based on the 1997 septic ordinance.
If the ordinance is going to be changed, procedures may change, he added.
Resident Russ Herndon reminded the health department and the commissioners of the lingering procedure questions in emails before the hearing and repeated them during the hearing.
Getting close to passing this ordinance before knowing how the health department’s authority will be carried out is like putting the cart before the horse, he said.
He said he understands the county has to have its own ordinance to be able to have some recourse if people violate it, but said this version seems too focused on penalties.
He suggested the county simply pass an ordinance saying that it incorporates the state’s septic code. Several people seconded that.
Audience members also wanted to know why this draft contains sections and language that aren’t in state code.
The commissioners would not allow other people in the audience to answer questions like that, because this was a hearing about the law in front of them only.
A question about why the county couldn’t just adopt the state ordinance was answered on an FAQ sheet, which was offered as a handout: “Septic system function and design depends on many factors including geographic terrain and soil composition. … While establishing minimal statewide standards, the State Department of Health cannot and is not intended to account for each county’s specific conditions.”
“We should at least have valid, data-based justification for this intrusion in our lives,” resident Kyle Birkemeier said. “… We need to research why the law is inadequate before we go beyond it. Government should not be burdening citizens without studies.”
Biddle and Pittman agreed with many points residents made about the ordinance’s language.
“We do want to have order in society, and we want to have a healthful place, but we also want to maintain individual liberty and individual rights, and it’s always a balance,” Pittman said.
Elmore called the amount of input “really exciting” and said she felt confident a workable solution could be found. “I don’t agree with everything that was said, but it’s great that you said it,” she said. “Please, come to our health board meetings. … When you have a problem, we want to hear it.”
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The Thursday, March 29 session was at least the ninth public meeting the health board or county commissioners have participated in regarding the revised septic ordinance since January 2017.
The committee that wrote it was chosen at the spring 2015 septic installer meeting, the health department reported on its FAQ sheet. It included three Brown County Board of Health members, septic installers, a soil scientist, a real estate agent/appraiser and two “environmentalists,” the handout said.
Three joint work sessions between the commissioners and the health board took place in February, March and April 2017. After making some changes, the health board passed the ordinance back to the commissioners in November 2017 with a positive recommendation.
The revised ordinance was first published in the March 6, 2018 paper to begin the process of public input, the FAQ handout said.
The ordinance the county is currently under was enacted in 1997.
A previous board of commissioners — which included current commissioners President Dave Anderson and current health department employee John Kennard — passed a different revised septic ordinance in 2013. Anderson opposed it. In 2015, that ordinance was ruled to be invalid because it was not published properly.
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The commissioners went section by section through the draft of the revised Brown County septic ordinance, taking notes on the points speakers raised.
The current ordinance, adopted in 1997, and proposed revision can be downloaded from browncountyhealthdept.org/page-6.
Article 100
Regarding definitions of terms such as “bedroom”:
The fact that “loft” is included in the definition of a bedroom exceeds state code, said resident Sherrie Mitchell. She asked if that could be taken out so the definition would match the state’s. “Anything can be changed,” commissioner Diana Biddle responded.
Article 200
Regarding new construction of residential septic systems:
The draft says that “before remodeling, expansion, construction or alteration of a residence” with a septic system, “the floor plans of the proposed residence must be reviewed by the Brown County Health Department.” Septic installer John Simpson recommended that plans go through health department approval only if they include a change that would increase the “designed daily flow” of wastewater, a new bedroom, or a large jetted tub.
The draft also says that before doing “any modification to the landscape, room addition, driveway, barn, shed, swimming pool, etc.,” the homeowner is required to get a septic record, or get the septic system located if there is no record, to make sure the plans don’t encroach on the septic system. Simpson asked for that section to be taken out because of its “overly broad” language. “If I just simply want to go plant a tree, I’m a free person,” he said. Biddle agreed.
Mitchell asked that septic holding tanks, which the draft says are allowed “for a temporary period only” and “on a case-by-case basis,” be allowed as a permanent way to deal with wastewater. She said she had talked to an Indiana State Department of Health official and was told that that could be done. Other commenters supported this idea.
John Kennard, environmental health supervisor for the local health department, said since state code limits that arrangement to one year, it couldn’t be a permanent method. He said it’s typically used when a home is under construction and the weather isn’t right to install a septic system, or when a system has failed and the homeowner is working on another solution.
Septic installer Tim Ford said he’s seen situations of “pump and haul” where people don’t want to pay to get their tanks pumped out, so they take their own hose and pump wastewater into a ditch. He recommended a regular review of long-term pump-and-hauls to determine which users “play by the rules.”
Resident Greg Bowes said that vague references to time frames in the ordinance, such as “temporary,” should be better defined so that people know how long they have to fix a problem.
He also said that it isn’t clear when the rules in the ordinance apply to new construction and when they apply to older homes, such as the clause about septic systems needing to meet current code. In the 200s section of the ordinance, it says that an upgrade will be needed when “the septic system is not the appropriate size for a year which the house was built.” That could mean that an older system would have to be redone even it it still worked.
However, an FAQ document the health department made says that functioning, older septic systems will not have to be replaced if they’re the correct size and up to code for the time in which the house was built.
Health department employee Ernie Reed said that the rules in the 200s section apply only to new construction. The ordinance doesn’t make that clear, Bowes said.
To further complicate the matter, Brown County didn’t have rules for septic systems until about 1977, Biddle said, so homes built in the ’50s and ’60s don’t have septic system records on file, and it’s unclear what was installed, what its capacity is or if it was up to code.
Trying to fill in those gaps in records is one of the reasons why the health board wanted to add a new procedure for getting septic systems reviewed before homes are sold. Those new rules, regarding septic system inspections and property transfers, are in the 700 section of the ordinance.
Article 300
Regarding pump-and-haul wastewater disposal
Resident Mike Morris said that not all the water a person uses goes into their septic tank, like water they use for livestock, gardening or washing a car. The ordinance should take that into account when it asks a homeowner to keep receipts of all their water consumption while on pump-and-haul.
Kennard said that on pump-and-haul, an alarm is placed on the septic tank to measure how much liquid is in it. If water doesn’t go into the tank, it wouldn’t contribute to setting off the alarm, he said. Morris was still concerned that water purchase receipts would be compared against the tank and a person would be accused of violating the rules.
Resident and Area Plan Commission member Russ Herndon said if pump-and-haul enables someone to stay in their home versus having it condemned, “I think we should be able to solve people’s problems.”
Article 400
Regarding septic permits and inspections
A portion of the draft says that the septic permit “shall be posted at a conspicuous place at or near the building” and that the notice “should be plainly visible” from the public road serving it. Simpson said that in Brown County, where people build in the woods, it could be tough to comply with both of those points.
Article 500
Regarding registration for septic installers
Simpson said that requiring a new, separate test to become a Brown County-approved installer is too strict and would limit the number of people who could install systems. As a member of the Indiana Onsite Wastewater Professionals Association, he said he doesn’t think he should have to get another certification just to work in Brown County.
Ford, who’s also an installer, said he’s taken the current licensing test and it isn’t that hard; it’s based on state code. He said he could see requiring someone to be certified to install certain kinds of systems.
Mitchell asked that this entire section be removed. If she had an uncle from out of state who wanted to install a septic system and save her money, she should be able to do that, she said. “If the inspection shows it’s fine, it shouldn’t be be a problem. It really shouldn’t matter to the health department who my contractor is,” she said.
Several speakers mentioned concerns about giving the health department too much authority. Simpson said the part about the local health officer being able to take an installer’s name off the registered list lacks steps to allow installers due process. He was sued by the current health officer, Dr. Norman Oestrike, a few years ago; Simpson also sued the county in federal court regarding his rights.
Multiple people spoke out against the rule that says if a registered contractor doesn’t install a system in Brown County for one year, the contractor’s name will be removed from the registered list. “If I don’t put a septic in in Brown County for a year because I’m busy in Bartholomew County, does that mean I forgot how?” asked Rick Miller.
Commissioner Jerry Pittman pointed out that a person doesn’t have to have a license to do other work on a house; as long as it passes inspection, it’s fine. “If the work’s done properly, that’s what we’re trying to get at,” he said.
Article 600
Regarding the health department’s powers of inspection
This section contains only one paragraph which reads: “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 at the proper time for purposes of inspection, observation, measurements, sampling, and testing necessary to carry out the provisions of this ordinance.”
Bowes said, again, this contains vague language like “at the proper time.”
“If I find a health department (employee) in my bathroom at 2 a.m., what in that rule would say that’s wrong?” asked Tom Westgard, who sued the health department and other county officials in federal court for entering property without a warrant. The preliminary injunction he sought was denied, but the health department reported that the case is still pending.
Westgard and other speakers said that steps outlining a process are missing in this section, such as giving notice to the resident first, and stating what would be done if the resident denies the health department entry. “Notice and hearing, that’s a constitutionally derived right,” Westgard said. “That saves you litigation, too.”
Article 700
Regarding septic system inspections
This is the part of the ordinance that received the most attention during public work sessions last year.
Section 703 says: “Prior to the sale of any property with an on-site septic system, a complete septic inspection must be conducted by a certified septic inspector. If the inspected septic system does not comply with the requirements of the septic ordinance at the time of the dwelling’s construction, or if it is in failure as determined by the septic inspection, the septic system must be upgraded to meet current on site septic system standards.”
Michael Mettler, the director of the environmental health division at the Indiana State Department of Health, expressed support for a point-of-sale inspection program. His comments were in a letter offered as a handout at the meeting.
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Mettler said that point-of-sale inspections “will not only identify system failures and health hazards associated with discharging sewage, but it will also help your local health department identify systems that are in need of service or components that may be malfunctioning or defective, so that needed service and/or repairs may be made in a timely manner.” Not taking care of a septic system can irreparably damage a system, he said.
Point-of-sale inspections also protect homebuyers, Mettler wrote. That was the intent when a local committee added that part into the ordinance, said former health board President Jim Zimmerly: To help a homebuyer understand how well a septic system functions and whether or not it’s going to serve them well.
Resident Kyle Birkemeier said he didn’t think it was a function of the health department to protect people from unscrupulous business practices. “It’s kind of an overreach,” he said.
Resident Jim Schultz said real estate agents could hand buyers a septic system pamphlet instead.
Resident Amy Kelso said no good reason has been given why Brown County has to add point-of-sale inspections when only two counties in the state do them now. The homebuyer has to show some responsibility for finding out what they’re buying, she said. Requiring inspections could make Brown County unattractive to buyers and sellers, she said.
Section 704 exempts certain types of property transfers from the inspection requirement, including transfers between relatives or spouses, through trusts or refinancing, or when property is connected to a sewer within 180 days of the transfer. A line beneath that section says, “Other property transfers may be exempt from Section 703 on a case-by-case basis within the discretion of the Brown County Health Officer.”
Audience members didn’t like the “case-by-case basis” language, out of fairness concerns. Bowes suggested the health board review those cases in a public meeting instead of leaving them up to the health officer’s discretion.
Ford said the part about older homes’ septic systems being OK if they are up to code for the time they were built misses the point: Older homes’ systems are often the problem ones, he said.
The commissioners didn’t know exactly when Brown County’s first septic law was put into place; they thought it was around 1977. Homes built before then are unlikely to have septic records, Pittman said, and what the codes were then — or if there were any — is unclear.
“So if you have a septic that’s not on record, but it’s not failing, what do you do with that?” Julie Waltman-Lee asked. “If it’s broken, fix it, but if it’s not, why are you costing people thousands of dollars?”
Resident Paul Nelson said he bought a house with a failed septic system knowing it had failed and worked out a way to escrow money to replace it. He said that with the current language, he’s afraid people couldn’t do that.
Real estate agent Erika Bryenton said it needs to be clarified when a septic system replacement would need to happen. Many times of the year, septic systems can’t be installed, and she fears that sales will be held up — both by weather and the availability of Brown County-certified septic workers.
She also said that the inspection cost shouldn’t be put on the sellers. Who would pay for it isn’t specified in the ordinance.
Waltman-Lee asked what a “complete inspection” is, exactly. Schultz wanted clarification on what constitutes a “failing” system.
Kelso objected to Kennard putting signs on homes that are for sale that say to call the health department before buying them.
Kennard admitted to doing that to prevent a person from buying a property he’d have to condemn. “The first word on our logo is ‘prevent.’ We’re trying to prevent people from buying something and then having problems,” he said.
Waltman-Lee said that’s what a seller’s disclosure form is for.
Mitchell asked for the entire section to be removed. “There’s all kinds of stuff wrong with this,” she said.
Article 800
Regarding guest rentals and bed-and-breakfasts
No one commented on this section.
Article 900 and 1000
Regarding notice of ordinance violations and penalties
Bowes asked for clarification on what the “time limit for satisfactory correction” would be. Nothing in the ordinance tells people what happens if their septic system is found to be failing, or how long they would have to correct it.
Ordinances he’s familiar with in Marion County had a stepped process built in, such as an inspector’s visit and a written notice, followed by a complaint or summons in court if the problem isn’t fixed, then a hearing process. In that hearing, the health department would have to prove a violation occurred and the homeowners could bring in their own witnesses, he said. If a problem was confirmed through that court process, the homeowner could still have time to fix it before facing a fine, he said.
Commissioner Pittman said he believes government should help bring people into compliance rather than hit them with enforcement right away.
Birkemeier asked about the fines, which are up to $1,000 for a first violation, $2,500 for a second and $5,000 for a third, per day. In the county’s 1997 ordinance, they had been $500 first, then $1,000 for later violations.
He said the county should be focused less on fines and more on steps to help people fix septic problems, like applying for grants available through the state for this purpose.
“The majority of these people aren’t fixing the problems because they don’t want to … the majority are not fixing them because they don’t have the money,” Bryenton said. “Slapping them with a fine isn’t going to solve anything. If you’re going to fine them, at least put it into an escrow account to pay for a new septic. Don’t keep it.”
Mitchell asked about the use of the word “convicted” in the penalty section. “Are we going to make criminals out of people who have failed septic systems?” she asked.
Biddle said there’s no “septic prison” and no jail time for violating the ordinance.
However, Kelso pointed out a case from 2012 in which the health department had prosecuted a man for continuing to live in a home that had been condemned. He ended up not having to serve his 10-day sentence in jail but was put on probation for 180 days and had to complete community service, according to court records.
“I don’t think we should laugh so much, you guys; we have some history here, and this is serious. We need a lot more detail, and it can’t just be this hearing and a review of written comments,” Kelso said.
“Please don’t underestimate the need to be more clear about how things are going to be done, because this is going to get you more lawsuits, and you can’t afford them.”
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