April 1, 2014
The Ohio Department of Health (ODH) is presently in the process of working on a-third draft of sewage treatment rules, pursuant to Ohio Revised Code (ORC) chapter 3718, for adoption on January 1, 2015. At a recent statewide meeting, the proposed rules were presented like a steam locomotive with a stuck throttle. No questions asked, no questions permitted—hardly an open process. The first issue presented was the baffling definitions of “repair,” “alteration” and “replacement.” It is still evident that ODH does not intend to adhere to ORC 3718 regarding the application of these terms, and the agency is apparently willing to thrust the resultant significant costs onto thousands of Ohio citizens.
This is an excellent example of why laws are written by politicians and not bureaucrats, as ODH personnel have stated that ORC 3718 needs to be fixed to correct the problem of these definitions not suiting their purposes. This statement infers some ignorance on the part of the architects of this legislation. I do not believe this to be the case. Rather, the legislators were wise to oversee the interests of many thousands of homeowners who will soon be facing the financial impact of a failed sewage system under the pending requirement that all systems in Ohio be inspected within five to ten years. ORC 3718 clearly makes a distinction between the only two options that can possibly exist for correcting a failed sewage system—-“repair” the system or “replace” the system.
The legislature obviously intended a “repair” to be anything done to eliminate a nuisance associated with a failed system, short of “replacing” it with a completely new system. But what is an “alteration?” Just like an alteration of a dress or a suit, an alteration would consist of adding to a properly functioning system to account for changes in daily flow, or relocate it to allow for a home addition. An “alteration” could also be an extensive “repair” of a failed system, sufficient to require an alteration permit. The legislature did not define “repair” as it clearly was not intended to be a term of limitation. However, ODH personnel took it upon themselves to define the term and now it is limited to just fixing a device, such as an aeration motor or a distribution box. This definition prevents a homeowner from “repairing” a component, such as a filter bed or a leach field, to abate a nuisance, and, instead, defines such work to be a “replacement.” This is directly in conflict with the clear intent of ORC 3718, as stated under 3718- 02(A)(3), “The rules shall be adopted so as to establish a preference for the repair of an existing sewage treatment when technically and economically feasible, rather than its replacement with a new system.”
Without being allowed to “repair” a component and restore a sewage system to its original function to eliminate a nuisance, homeowners will soon be forced to install new components, costing thousands of additional dollars. The intent of ORC 3718 is for a homeowner, their sewage system installer and the local health department sanitarian to confer regarding all options for the “repair” of a sewage system in order to abate a health nuisance. ODH personnel have stated that they do not want homeowners to “repair” components, but it is not their decision!
In summary, ODH does not need to wait for ORC 3718 to be fixed, they just need to follow the law like everyone else. One wonders, if ODH cannot properly interpret the law, how are local health departments expected to properly interpret the quagmire of rules that ODH and their select committee members are proposing for implementation? Without correcting this most fundamental aspect of the proposed rules, it would certainly not be surprising to find the rule package legally challenged soon after adoption.
Sincerely, Brian Benick, R.S., M.P.H., Director of Environmental Health