Letter to Washington State Board of Health

To: Washington State Board of Health
Re: WAC246-272A Rule Revision Report
Date: November 18, 2019

WAC246-272A reaches the level of “Significant Rule”, impacting permitting and costs to local jurisdictions, industry representatives and OSS owners. As such, RCW 34.05.328 must be followed. It has not. There has been no cost-benefit analysis (RCW 34.05.328(1)(d)). There has been no abundance of documentation to persuade that determinations are justified (RCW 34.05.328 (2)). There has been no report of compliance to current Rules from Local Health Jurisdictions or OSS owners (RCW 34.05.328 (6)). There has been no new data since the last Rule Revision regarding system failure rates, pollution impact, or Public Health Risk, rather anecdotal stories.
During the Revision process, SB55503 was passed by the Legislature and became Law in July 2019. The stated intent is 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. That law has not been honored in the Revision process.
It was obvious that OSS owners have not been involved in previous revisions nor fully respected in this current session. Stakeholders voted using a democratic, majority vote process, often leaving our concerns out of the recommendations. Given the voices at the Stakeholder meetings, government agencies and the OSS industry maintain the majority vote. Is the mission of the Department to bolster an industry?
Allow me to offer three examples of this inappropriate relationship.
1. Current Rules require that “tank access for maintenance and inspection be at finished grade”. (Section #0238, (1)). Certainly a convenience for service employees. Arguments for this Rule might be to alert owners to the location of their system, avoiding driving or building over the area. But an unintended consequence to the Rule is the dangerous access to an exposed OSS via a broken or open lid. In fact, the danger has been used to encourage Local Boards of Health to increase restrictions on OSS. Access to the OSS should be an option for the property owner. The owner could choose to pay for service employees to dig to access. Owners could do the digging themselves. But the decision to place “Finished Grade Access” into the Rules was not made with owner input and has place the owner in a very dangerous, libelous position. COOMWA’s appeal to discuss this Rule was denied.

2. An Issue Paper was presented to Stakeholders, concerning Property Transfer Inspections (Section #0015). Issue Papers offered a Problem Statement, Options, Pros/Cons of changes, Recommendations, and Supporting Information. The Issue Paper presented by DoH Staff offered the following Pro’s: “Additional work for local septic system related businesses. Creation of new business opportunities for registered evaluators from the private sector.” COOMWA object strongly to the stated intent to bolster the industry. To balance this favoritism, I recommended a “CON” statement to acknowledge extra burden to the owner. That recommendation was denied.

3. Inspections, as outlined in Section #0270(1), are annual unless a gravity system which is scheduled every three years. There are no studies, reports, or failure rates to justify the time period. The inspection cycles are imposed on owners without consideration to system age, permit status, function history, manufacturer recommendation, or other measurable data. Anecdotal stories and industry desire for routine customers were used to justify the decision to maintain this Rule.

I have served as a Stakeholder in the revision of WAC 246-272A, representing over 1 million households served by on-site sewage systems (OSS) in Washington State. I am the Founder of Citizens Optimizing OSS Management Washington (COOMWA) and the initiator of SB5503, offering relief to OSS owners from governmental over-reach. COOMWA will continue to be involved in this revision process and more legislative activities to ensure OSS owners are heard and treated fairly.
Before the Rules Revision process continues, assurances must be made to compliance with the Administrative Procedure Act and SB5503? We will monitor this process closely.

Betsy Howe, Founder

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