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Part 2
By Elizabeth Dietzmann
In the first part of this article I attempted to outline a few of the areas of controversy surrounding whether or not point-of-sale inspections should be performed at all. That is just the tip of the iceberg however. Even when it is agreed that point of sale inspections serve a valuable function and should be performed, there is still plenty of disagreement on virtually every aspect of actual implementation. Should they be performed by the local health department or by private contractors? What inspection standards should be followed? Should the seller or the buyer pay for the inspection? Should private inspectors be installers or professional engineers?
One idea that can be agreed on is that point-of-sale inspection programs are on the rise. Traditionally required primarily by lenders, if at all, more and more states like Massachusetts, Arizona, and New Mexico have enacted statewide point-of-sale inspection requirements. This is consistent with what appears to be a positive shift in the public perception of septic systems.
More and more state and local governments, especially those dealing with fragile watershed issues, are starting to view septic systems as less than a strange piece of private property and more as a part of a community’s wastewater infrastructure, albeit one that has been neglected. Jacksonville, FL, Mayor John Peyton recently introduced legislation that would require permitting and scheduled inspection of the city’s 89,000 septic systems in an effort to reduce the amount of raw sewage seeping into the St. John’s River and its tributaries. The mayor is treating the program as one piece of a comprehensive solution for a watershed protection problem that has existed for years, while acknowledging that there will always be some septic systems in Jacksonville. Few communities are ready to be as proactive as Jacksonville, but point-of-sale inspections continue to be viewed as a less volatile solution than wholesale permitting. So who should perform them? This is a threshold question.
Should local health departments or private contractors perform point-of-sale inspections? The real issue here is both availability and liability. Availability becomes a problem when no private contractors are willing to perform the inspections. Sedgwick County, KS, which surrounds Wichita, implemented a point-of-sale inspection program in the summer of 2006. Initially, the health department explored the idea of licensing local installers to conduct the inspections, but soon discovered that no one wanted to take the job. As a result, the department ended up doing the inspections in-house. In some communities, the installers do not want to perform inspections, because that may preclude them from making repairs to that particular system. Private inspections certainly can lead to conflict-of-interest issues with unscrupulous inspectors. Many homeowners do not realize that they should ask some questions and become informed consumers before they have the individual who inspected their system also repair their system. But let’s face it: The average homeowners know far less about their septic systems than they do about car repairs. And unlike a public official, private inspectors can easily get caught up in the real estate sales process. An inspector who has a reputation for being too thorough on inspections may wind up effectively blacklisted by local realtors, just as an inspector who will pass almost any system can become a favorite with seller’s agents.
It may all boil down to who selects the inspector and which party, buyer or seller, pays for the inspection. Clearly there is pressure on an inspector who is paid by the seller to pass the system. Some private inspectors like Danny Kleinpeter of Ranger Sewer.com, in Suffolk County, NY, will only work for the buyers. He has been physically threatened or threatened with litigation on many occasions, routinely has sellers refuse him access to systems, and says that certain realtors refuse to recommend him to their clients because he has failed systems in the past. Joanna May of QC Portables & Septics in New Mexico is hired by the sellers and finds them to be cooperative, although frustrated at times, with the cost of system repairs. Experienced inspectors support their evaluations with digital pictures, detailed explanations, and sometimes even videos—all to avoid complaints or worse from unhappy sellers. Of course, just like lawyers, not all installers are unscrupulous or swayed by realtors. Nevertheless, a few bad apples will taint the bushel. Massachusetts went so far as to pass a specific law forbidding any system inspector to either recommend an installer or to perform repairs on any system they have inspected.
Theoretically, having local health department officials perform inspections will avoid these conflict of interest issues. Ideally, the health department can serve as an independent third-party inspector with no financial stake in the outcome of the inspection that can follow a standardized inspection protocol. Liability becomes a problem, however. Many local health departments are anxious to avoid the liability issues that can result from failing a system, so they produce reports that are so filled with disclaimers that they are meaningless or they follow an inspection protocol that is little more than a “scratch and sniff”—a cursory visual inspection of the system. Many county health departments don’t want to be sued by a seller for failing a system or by a buyer down the road if the system is not functioning properly, so they issue reports that are basically fluff. In addition, many health departments are understaffed and find it difficult to respond quickly enough to last-minute inspection requests to satisfy realtors or homeowners. So unless a health department takes a stance like Sedgwick County and implements a stringent inspection standard—and then encourages its public inspectors to follow that standard, public inspections are not terribly effective.
It appears that the trend is generally to have third-party inspections conducted by private inspectors. This is certainly the case in New Mexico, Massachusetts, and Arizona. That brings up another series of issues, however. What training should private individuals have in order to be inspectors? Professional engineers, system designers, installers and pumpers, and home inspectors all perform septic system inspections in various parts of the country, and the licensing requirements are as varied as the actual inspection checklists. In most jurisdictions, a P.E. is deemed to be qualified to inspect a septic system merely because he or she holds a professional engineer’s license. Anyone other than a P.E. must complete a certification course. This leads to quite a bit of professional animosity amongst inspectors. When I was quizzing folks about point-of-sale inspections, I was surprised by the vehemence of some of the responses. One individual, a P.E., stated that “I also think that it is a waste of money to hire a septic pumper or septage hauler to inspect a system—that should be done by a licensed designer who understands environmental and regulatory issues, how systems function, and the what and why of system design.” Another P.E. also commented that there are plenty of licensed P.E.’s who would not have the right type of training or experience to do a thorough job inspecting a septic system. They might not have the proper excavating equipment, either. Then an individual who is a pumper and who takes equal pride in his work related a story about failing a system, only to learn that the realtor then obtained a passing report from an environmental engineer. Three weeks later he had to install a new mound system for the upset homeowner. As he stated: “What I have learned in the past 19 years did not come from a book like the civil engineer. It is not only my job; it is a science to me, and I take it very seriously.” Another take on this issue came up in New Mexico, which has had complaints about qualifications between installers and contractors. Currently, the state requires NAWT certification or P.E. licensing, but, according to Tom Brandt, with the
Department of Environmental Quality, this has been criticized by contractors who claim they are more qualified to inspect systems because of
their experience.
Inspector licensing is inevitably related to the inspection standard as well, and inspections standards vary wildly across the country. NAWT, the Pennsylvania Septic Management Association, and the Missouri Small Flows Wastewater Research Education Training Center (“the Center”) are just a handful of the groups that offer inspector training and set a comprehensive inspection protocol. Dr. Randy Miles, director of the Center described the Center’s checklist for an “inspection” as extremely comprehensive. It includes both a dye test and a “stress test” or hydraulic loading test and is designed to inspect every component of the system. The Center also teaches an “evaluation,” which is restricted to a walk-over of the drainfield and a much more cursory examination of the system. Missouri, like many states, does not require point-of-sale inspections at either the state or county level, except for one St. Louis area county. Inspections are required by lenders, who decide if they want the inexpensive “evaluation” or the more expensive “inspection.” Many inspectors either do not convey the importance of the full “inspection” compared to the “evaluation,” or find that neither the buyer nor the seller is willing to pay for the more expensive “inspection.” Realtors again play an important role in the process and can be extremely influential when it comes to recommending the “evaluation” over the “inspection.” Through the years, I have received many calls from homebuyers who have had a system pass inspection but not function properly. The majority of them decided that they were better off spending the money on a new system rather than prolonged litigation against the realtor, the seller, or the inspector. Many realtors regard point-of-sale inspections as an impediment to the sale, and as I noted in the first part of this article, state real estate associations are some of the biggest opponents of mandatory point-of-sale inspections. The reality is that the more thorough the inspection, the more likely a septic system is to fail it.
But let’s assume that you have a comprehensive inspection by a licensed, independent, non-biased inspector. Let’s assume that the inspection covers everything from tank structure to hydraulic loading of the drain field and that every component of the system is examined. You still simply have a snapshot of that system on that day and with that prior level of use. David Keeton, president of the National Onsite Education and Research Foundation, as well as many other regulators, trainers, and inspectors agree with me that the best inspection in the world is not a warranty of future performance. Many systems passing stringent inspections will still not operate properly when the flows are increased. That young family that buys a house from the elderly couple may be in for a big surprise. In addition, a single inspection cannot determine what percentage of the design life of the system is remaining. 25%? 50%? A point-of-sale inspection also cannot determine what type of routine maintenance, if any, has been performed on the system and the degree to which system maintenance or the lack thereof may affect the design life of the system. Recurring periodic inspections would be a much more effective way of evaluating a septic system. Tying those periodic inspections to operating permits, along the lines of the ordinance proposed in Jacksonville, would also mandate system maintenance. As Tony Smithson of the Lake County, IL, Department of Health noted: “When a site has a history of ongoing monitoring, the point of sale inspection can be more an issue of records review for compliance with the operating permit requirements.”
I agree. I am also realistic enough to realize that septic system operating permits are a political time bomb. Even in jurisdictions where operating permits are required for newly installed advanced treatment systems, the idea of requiring operating permits for all existing septic systems is political suicide. Clearly it is unrealistic to expect jurisdictions to enact permit programs overnight. But it is possible to create a point of sale program that does solve many of the problems set out above and goes a long way towards identifying many septic systems that are not functioning properly.
In the third and final part of this article, I will explore some state level programs and examine the ways in which they have solved many of these conflicts and created standardized point-of-sale inspection programs that go a long way towards identifying non-functioning systems, protecting buyers and, most importantly, protecting the environment.
Elizabeth Dietzmann is an attorney in Rolla, MO. She can be contacted at edietzmann@earthlink.net.
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- January/February 2007
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