Septic ordinance going to vote this week

The Brown County Commissioners are a step closer to passing a new septic ordinance after passing a first reading last month, with the second reading and vote set to happen this week.

The commissioners will meet Wednesday, May 5 at 2 p.m. on Zoom where they are expected to vote on the second reading of the ordinance. A public hearing took place April 26 on Zoom and comments for or against continued to be accepted until May 3.

On April 21, the commissioners approved the ordinance on first reading with a 2-1 vote. That was the first step toward getting it passed and replacing the current ordinance, in place since 1997. Approving it on first reading also allowed for the public hearing to happen.

This ordinance draft has been revised over the past three years by a volunteer citizen committee.

Commissioner President Jerry Pittman voted against approving this version on first reading. He said he was not favor of it because he does not believe it is necessary and the state’s code for septic systems would be enough for Brown County.

“It will increase our liability as a governmental agency. The more we put on there the state does not require, the more we open up ourselves to liability,” Pittman said, noting that Jackson County follows the state code with added provisions in an ordinance for licensing and enforcement.

The proposed ordinance has 13 different articles: permits; installation; repair or replacement of systems; technology; installation inspections; registration for septic contractors; inspections related to change of use; tourist homes and bed and breakfasts; possible violation notices; penalties; administrative appeal; validity and ordinance in force.

The entire ordinance can be read in the legal notices on bcdemocrat.com.

Around 25 people attended the April 26 hearing on Zoom. At the hearing, commissioner Diana Biddle said that if the commissioners get many more comments between then and May 3, the commissioners have the ability to table the reading until their second meeting in May, which would be May 19, so they have time to read and process all of them.

“If we just have the five comments that we’ve got right now, then I would be prepared to vote on Wednesday,” Biddle said.

It was not known by press deadline if that vote would be delayed or how many total comments were received.

Most Brown County residents are affected by the septic ordinance because most homes in Brown County use septic systems to dispose of waste. Only three areas have sewers: Nashville, Gnaw Bone and Helmsburg.

The state already has a lengthy set of rules, known as Rule 410, which are the minimum standards with which all county health departments must comply. But counties are allowed to make their own rules for waste disposal and septic system installation and use as long as counties’ standards are not less strict than the state’s.

Critics of Brown County’s septic ordinance have asked for justification for going “above and beyond” minimum state standards.

Pittman said he also did not support this ordinance because of “the long history of selective enforcement by the people in our health department in charge of on-site septic systems.”

“We have been hit by multiple lawsuits because of the actions of that department that cost Brown County expensive settlements. We only increase our chances of being sued. I don’t see any benefit for people of Brown County,” Pittman said.

Biddle said during the April 21 commissioners meeting that the rewrite committee had made the changes the commissioners requested in 2019. That year, the ordinance got past a first reading and public hearing before the commissioners sent it back to committee for revisions.

Those eight changes included rewording certain parts to be less restrictive, like using “recommended distance” instead of “maximum distance” when talking about the distance a septic tank should be from a structure.

Biddle said that article three of the proposed ordinance, which deals with repairing or replacing existing systems, protects existing systems and allows the health department more alternatives when installing new technology that was developed since 1997.

“Those system changes are not adaptable under our present ordinance. Under the new ordinance, there is a proposed code that allows the department to install new technology that is approved by the state. That is a major change and that is very helpful,” she said.

Biddle also noted that the current ordinance does not offer guidance for what might need to happen with a septic system when a regular-use home is turned into a tourist home.

A bedroom affidavit option — with the homeowner declaring how many possible bedrooms actually will be used as bedrooms for system sizing — is also in this proposed ordinance, along with a process for administrative appeal which is also lacking in the current ordinance.

Article 11 outlines the process a person would have to go through to appeal a decision by the health department to the health board. “I think that is protecting the public and it does allow the public to have some alternatives that are not allowed under the current ordinance,” Biddle said.

“There are a lot of things about the 1997 ordinance that are just not up to date by today’s standards, and I think that we owe it to the individuals who live in our county to give them an up-to-date and enforceable ordinance,” she continued, before making the motion to approve the ordinance on first reading.

Members of the rewrite committee — which is separate from the county’s board of health — have said that there are soil types, land topography, water movement and other factors in Brown, Monroe and Bartholomew counties that are not found anywhere else in the state, so it can’t be assumed that the basic state rules will work to keep septic systems working here and protecting the county’s natural environment. Changes also were made to help make it easier for homeowners and installers to understand what is required if they need to put in a new septic system.

Voices for it

As of April 28, 10 written comments had been submitted to the commissioners. Seven were in favor of the ordinance and three were against.

Of those in favor, two were septic system installers and one was a soil scientist. There were also letters of support from two committee members, Rich Hall and Clint Studabaker; former committee member Cathy Rountree; and health board president Thomi Elmore.

“You have an obligation to all the residents of this county. Leadership is not a popularity contest,” Elmore wrote.

“We must be proactive for the protection of our citizens and our environment.”

She said that this ordinance and the standard operating procedures being drafted to go along with it will create uniform compliance in the county.

Elmore said that it is not the job of health board to “micromanage” the daily operations at the health department, but that the board will “thoroughly examine these procedures for clarity and standardization to ensure that all functions are thoroughly documented and explained.”

Pittman said that his job as an elected official is to be responsive to his constituents. He said that half of the people he has spoken to were against it and the other half were not aware of the new ordinance.

“If I am going to listen to my constituents and represent them then that is my conscience,” he said.

At the hearing, Elmore, Studabaker, and resident Robyn Bowman spoke in favor of the ordinance.

Bowman said that approving it should not be an issue since so few people attended the virtual hearing. In years past, public hearings on proposed septic ordinances had resulted in packed meeting rooms.

“If the community had a real issue with this you would be hearing from all of us,” Bowman said.

Resident Erika Bryenton said there would have been more people if the meeting was not held at 2 p.m. on a Monday via Zoom. Comments on social media were mostly negative toward the new ordinance, but the commissioners had asked that comments be submitted directly to them in writing.

Questions were also raised about whether the hearing was advertised properly and if people had received enough notice to attend. The hearing was legally advertised.

Resident Kevin Allen also spoke in favor of the ordinance, saying he is more in favor of this draft than past drafts. Allen works in land surveying and civil engineering, designing a variety of septic systems from single homes to collection systems for cities.

He said this ordinance is about public health and pollution control. “A failed septic system doesn’t stay on your property. This is long overdue,” Allen said.

Committee members Randy Jones and Hall spoke up during the April 21 commissioners meeting. Hall read a multiple-page statement into the record and also submitted comments in writing.

Jones said the commissioners would make a mistake by not approving the ordinance just because of dissatisfaction with a health department employee. “If there are concerns with certain personnel and some of their actions, then there is a process in place to address that, but I do not think that should be taken for a justification or reason not to go ahead and approve an ordinance that I think will work very well for this county,” he said.

In her written comments, Rountree expressed support for installer certification, having a specific ordinance for Brown County, and having fair enforcement through both the health department and health board.

“The whole country is facing this; it is not common in just Brown County,” she said about septic problems.

Voices against it

At the public hearing, Bryenton said she was on the fence about the new ordinance. She said that the committee had made “a lot of headway” in improving the ordinance since the 2018 draft, but that some language was still too vague to enforce.

For instance, in section 1002, Bryenton suggested there be a minimum timeline to get an issue fixed instead of a time limit determined by the health department’s health officer.

Section 1003 relates to when enforcement of the ordinance results in litigation and the court finds it has been violated. It outlines how the health department could be reimbursed fees and costs associated with the case. “I think there needs to be something saying they (a homeowner) have a right to get through a hearing with the health board before legal action is taken against them,” she said.

She also questioned article eight about tourist homes and if current tourist homes would be grandfathered under the current ordinance.

Written comments against the ordinance as of April 28 were from Jim and Terri Schultz and resident Joshua Carpenter.

Some of those comments focused on concerns about the actions of health department employees and potential lawsuits as a result.

“If there was ‘just’ enforcement, we would not be having this conversation. There is no need for additional language in the septic ordinance except to add permitting and inspection language,” Jim Schultz wrote.

At the hearing, resident Tim Clark and Jim Schultz also reiterated the need for the health department to have standard operating procedures, saying that SOPs would give more vague terms like “may” and “shall” specific meanings. “What is the criteria for the decision you will do something or not do something?” Clark asked.

Clark also criticized the committee for not identifying “unique requirements” to Brown County that justify this ordinance. He said a justification including costs, benefits and risks should be provided.

The health department is currently working on a draft of SOPs that is over 50 pages long, according to Hall’s written comments. Once the SOPs are completed, they will go to the health board for review.

Carpenter believes the current ordinance from 1997 is fine. “Why change it?” he asked in his written comments.

He said the new ordinance would allow for the county to force residents to use approved contractors that may have connections with people in the county. He also feared that the new ordinance would force people who do not need a new septic system to replace their current one.

The ordinance up for consideration requires a person to put in a new septic system if theirs has failed and it cannot be fixed.

Resident Kevin Fleming said that the ordinance should be given “very high concern and guarded against vigorously” since it may put the county at risk for future litigation. He suggested coming at the septic system problems piece by piece.

Clark expressed concern about the ordinance not being supported by “hard facts and analyses” and instead by “anecdotes and assumptions.” “When I look at this ordinance, it is not ready for prime time,” he said, adding that he had difficulty getting anyone to respond to his comments and questions.

“What problem is this thing solving?” he asked.

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