The following speech was delivered to the TRAP (Technical Review and Advisory Panel) by Andrea Samson on behalf of all members of the Wekiva Study Area Homeowners Coalition, and septic system owners throughout the state. This message along with presentations by legislators, septic contractors, civic and professional group were well received, and hopefully the resolutions passed by the TRAP committee will help modify and/or postpone the implementation of the rules the Department of Health (DOH) has formulated. To be sure, the sum of this meeting input from all sources is that SB 550 will be amended in some way next session, and it was the opinion of the TRAP committee that DOH “administration” of the inspection program would be sufficient to satisfy the language of SB550, but any actual implementation of the inspection program before the next legislative session is unwise, since the changes to SB550 may override the DOH rule provisions. A full and detailed summary of the proceedings will be posted in a few days. Please check back. Below are my comments at the meeting.
Years ago, we decided as a country that leaded gasoline posed a health threat. Unleaded gasoline would be the standard across the country. All the new cars were engineered to burn unleaded gasoline. Did that new rule make old cars that burned leaded gas illegal to drive? No. Owners of older cars drove them until the car died or the owner decided to retire it. It was then replaced with a car that burned unleaded gasoline.
Years ago, building codes were changed to require hurricane straps. Does the building department inspect my home to see if I have them and if I don’t, does he tell me I must rip off my roof and outfit the support beams with straps, because I don’t meet current code?
When the septic inspector comes around and finds out that the new drainfield I installed last year is 600 sq. ft., do I have to rip it out again because the new code now requires 675 sq. ft.?
I give you these examples, because what you have written into your rule not only defies logic, it defies legal and rule-making precedent. You have put into your rule a standard for deeming a system “failed” that was never stated or intended by the language of SB550. You cannot declare a system illegal and fine the owner for not meeting a separation code that didn’t exist when the system was installed.
Section 5, Senate Bill550 says you are to inspect a system for fundamental operational functionality and identify failures WITHIN A SYSTEM – not above, not beside, not below – within. Definition of within: not farther than, not exceeding, not beyond, not extending past, in the bounds or limits of.
The order of the sentences is also important. Immediately after the instruction to identify failures within a system, SB550 says “Drainfield repairs shall meet (separation) codes. It does not say separation codes shall trigger or force a repair. You have it backwards. This means if a tank is leaking, or the drainfield is clogged, a repair is warranted.
It means when a repair is necessary, the new drainfield will meet the specified code for separation. I repeat, you have it backwards. If you go back to the examples I gave you in the beginning, the rule language that fails a system for not meeting the new code is without precedent and without logic, and I repeat, not the legislative intent.
Your rule mandate for soil testing and separation from the high water table is mentioned in the section governing future comprehensive land planning. It is not in the section governing inspection of existing, previously permitted septic systems.
This is the second time I have witnessed the Department of Health misinterpret the legislative intent of a bill. The first time was over the rule to force homeowners in the Wekiva Study Area to install Performance Based systems, using the Wekiva Parkway Bill as the excuse. Last year, I listened to you defend your rule, telling a legislative committee, “this is the way we interpreted the bill, and if you don’t like it, change the law.” I would remind the Bureau of On-Site Sewage, your role in government is to implement legislative intent, not invent or dictate it. If you are having repeated issues with interpretation, there is a simple solution that respects the role of legislators and allows you to do a much more efficient job of writing implementation rules……ASK the legislator who was responsible for the language of Section 5 of SB550.
Something has changed over the past few years. We are involved, very involved, not just here, but statewide. I have in my hand, seven formal resolutions sent to Governor Crist from Calhoun, Jackson, Washington, Holmes, Liberty, Santa Rosa and Walton Counties. They all ask for repeal or modification of SB550 because of the septic system issue. There are more coming. We have, as a homeowner coalition, the commitment of gubernatorial candidates, the commitment of many legislators and candidates, and the support of many county legislators, organizations and associations, that SB550 will indeed be changed to protect homeowners from arbitrary rules, and therefore this rule, as written, will not stand without challenge. Simple inspections and simple pump outs are a cost-efficient, productive endeavor. That was the intent – maximum advantage, minimum cost. I strongly urge you change the rule so that it reflects the real intent of the legislators.
Orlando Channel 9 Report (wftv) http://www.wftv.com/video/25135792/index.html