CAPR Comments on Proposed Changes to Septic System Rules

By Cindy Alia

November 12, 2019

The culmination of a few good years work to fight the regulatory state on behalf of the property rights of owners of septic systems, it is now time to continue the pushback by commenting on proposed rule revision of the State Department of Health.  CAPR Comments are included here, please feel free to share the link to capr.us so others may also be informed of the rules comments.  Although CAPR was a continuously involved "stakeholder" in this process of rule-making, it can be said we are disappointed with the results of a democratic process where mob rule is counted as a good enough result.  CAPR is in disagreement with the decisions made in the rule-making process that disregard legislative intent and are an over-reach of the regulatory state.  Please do register your own comments with Mr. Jeremy Simmons of the Washington State Department of Health on or before November 15!  [email protected]

Here is the link to the draft rule revision with changes maked in red. https://www.doh.wa.gov/Portals/1/Documents/4450/RuleRevision-DraftwithChangesShown.pdf

Washington State Department of Health

Jeremy Simmons

Wastewater Section Manager

Department of Health

P.O. Box 47824

Olympia, WA 98504-7824

[email protected]

RE: Department of Health Rule-making, OSS per WSR 18-06-082, WAC 246-272A-0425

Dear Mr. Simmons,

Citizens’ Alliance for Property Rights (CAPR) is Washington State Organization which is member driven and carries the mission of educating The Public, Legislators, and Bureaucrats about Property Rights and how laws, policies, and plans impact property rights.  In furtherance of that mission CAPR has been a stakeholder in the Department of Health OSS Rule Revision re WAC 246-272A-0425.  During that year long process, CAPR lobbyist Cindy Alia attended meetings and participated in providing insight into the property rights which may be negatively impacted by the rule-making process.  At times the democratic process used by the department allowed for the discussion and understanding of property rights, but at times property rights were ignored in favor of a majority vote to continue the process and view the rule-making as a whole.  It was repeatedly asked by CAPR to have an ongoing comprehensive side by side comparison of rule-making as it compared to present rules as the changes were built.  This did not happen, and the 169-page document was presented as a whole, after the stakeholder meetings were completed.  

RCW 43.20.050 authorizes the department of health to:

(c) Adopt rules and standards for prevention, control, and abatement of health hazards and nuisances related to the disposal of human and animal excreta and animal remains; and to (3) The state board shall adopt rules for the design, construction, installation, operation, and maintenance of those on-site sewage systems with design flows of less than three thousand five hundred gallons per day.

In addition to the authority given by the legislature to the Department of Health in RCW 43.20.050, the legislature passed into law SB 5503 which was signed into law by Governor Inslee.  The legislative intent expressed in SB 5503 reads: 

“The legislature finds that properly functioning on-site sewage systems are an important component of the state's wastewater treatment infrastructure. In order to ensure that on-site sewage systems remain a wastewater treatment option that is economically accessible to a wide sector of the state's population, it is the intent of the legislature to ensure that only requirements that are reasonable, appropriately tailored, and necessary are imposed on the installation, operation, maintenance, or repair of on-site sewage systems.”

The language is simple, clear, and instructional to the regulatory agency in the exercise of rule-making authority and outcome.  It must be recognized that in the process of revision of the entire WAC 246-272A has become a significant rule-making rather than a simple revision of portions of the WAC.  In light of the authority given the agency through the legislature it is important to carefully follow legislative intent in the regulatory actions of the agency, including the intent expressed by the legislature in SB 5503 as well as the APA, chapter 34.05.328,  Significant legislative rules, other selected rules.

The rule-making process was complicated, comprehensive, and addressed sections of WAC not declared in WSR 18-06-082 in that it addressed and wrote into 246-272A-0425 issues that are regulated in other WAC sections.  Examples of this include using language from 246-291-121 (5), Creating a new section 246-272A-0278 Remediation.  The department has created an intensely significant rule.  A "significant legislative rule" is a rule other than a procedural or interpretive rule that (A) adopts substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction; (B) establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit; or (C) adopts a new, or makes significant amendments to, a policy or regulatory program.

The Proposed rule requires an OSS owner to at the time of property transfer have an inspection that goes far beyond the present rule and creates a burden on the owner that is contrary to the intent of the legislature in 5503 that an OSS should be economically accessible to a wide sector of the states population, and be and that only requirements that are reasonable, appropriately tailored, and necessary be imposed.  The changes proposed increase the economic and regulatory burden to the OSS owner by requiring more expensive inspections that are at the discretion of a local health officer.  An authorized inspector will be a more expensive inspector simply through the authorization process.  That process is required, but not defined creating a capricious and arbitrary rule that may be dismissed by a local health officer if ample records have been kept by the OSS owner, and if the local health officer determines to waive the requirement of inspection at time of transfer.

Any reference in the proposed rules that refer to local regulation as “at a minimum” or “at least as stringent as” Department of Health rule-making is beyond the scope of authority of the Department of Health to create a body of rules for the design, construction, installation, operation, and maintenance of OSS with design flow of less than three thousand five hundred gallons per day.  There is no mandate to create law that directs or allows for a standard that is non-specific and above minimum standards or that is without a specific reason to allow for local health jurisdictions to create rules more stringent than what is authorized by the Department of Health.  This language is also in conflict with the requirements of 5530 for reasonableness and conflicts with legislative intent in 34.05.328 that a significant rule shall determine that the rule is needed to achieve the general goals and specific objectives.  Interferes with the mandate to provide a preliminary cost/benefit analysis that would determine that the probable benefits of the rule are greater than its probable costs, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented.  And is not in compliance with the legislative mandate that the rule being adopted is the least burdensome alternative for those required to comply with it that will achieve the general goals and specific objectives stated under (a) of this subsection.

The Department of Health has mistakenly characterized the intent of the legislature in the new remediations section of the proposed rules.  Session law reads:  (1)  Rules  adopted  by  the  state  board  under  RCW 43.20.050(3) regarding failures of on-site sewage systems must: (a) Give first priority to allowing repair and second priority to allowing  replacement  of  an  existing  conventional  on-site  sewage system,  consisting  of  a  septic  tank  and  drainfield,  with  a  similar conventional system; (b)  Not  impose  or  allow  the  imposition  of  more  stringent performance  requirements  of  equivalent  on-site  sewage  systems  on private entities than public entities; and (c)  Allow  a  system  to  be  repaired  using  the  least  expensive alternative that meets standards and is likely to provide comparable or better long-term sewage treatment and effluent dispersal outcomes.

The Department of Health has added to the legislative language above, language of its own intent: “in full compliance with new construction requirements”.  That added language does not comply with the legislative intent to allow for repair or replacement of an existing conventional on-site sewage system with a similar conventional system. 

It is clear that CAPR has determined that even with the advantage of being able to work on the proposed new rules as a stakeholder, the protection of property rights and owners of on-site systems has been undermined by some of the unnecessary regulatory language as presented in the current published proposed rule.  CAPR continues to work toward correction of language that is in conflict with legislative intent by commenting here on the proposed rule language.

Thank you,

Cindy Alia,

Citizens’ Alliance for Property Rights

718 Griffin Ave, #7

Enumclaw, WA  98022

Cc: [email protected] Policy Advisor, State Board of Health.


November 13, 2019