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AB885 gave responsibility for developing regulations to the State Water Resources Control Board. Todd Thompson, selected to manage the project, started by finding consultants for the Environmental Impact Report that the agency knew it had to conduct and hiring a facilitator to develop a process to involve stakeholders.
By the beginning of 2002, the stakeholders were set to meet. The consultants devised a tripartite approach featuring 1.) a large group of 30 to 40 participants, composed of representatives from local health departments, environmentalists, equipment vendors, real estate agents and other interested parties; 2.) a state discussion group of agency representatives from the State Water Resources Control Board, regional water quality boards, the California Coastal Commission, the California Department of Health Services, county regulators; and 3.) a technical advisory group (TAG) consisting of local, state and industry representatives. According to Thompson, “We took the larger stakeholder group’s ideas and ran them by the state discussion group,” and then “took that output and consulted with the TAG. When the TAG had commented, staff put it in writing.”
Thompson maintains that the process was never intended to reach consensus, although he quickly adds that there was “a lot of consensus on individual items.” However, in an apt demonstration of the old saying that the whole is greater than the sum of its parts, Thompson notes that “when we put it all together, there was a gag reflex.” Stakeholders found the entire package too much to swallow.
Many felt that the stakeholder process was flawed from the start. Some participants felt decisions had been made in secret by officials who didn’t listen to their concerns. Jim Hemminger, from the Regional Council of Rural Counties (RCRC), an organization representing more than half of California’s county governments, commented that “literally hundreds of hours have been dedicated to [working with the staff], and, like many other stakeholders, RCRC is quite concerned that the draft rule-making package has essentially ignored, without explanation, all prior input that has been put forward.” Norm Hantzche, a principal with Questa Engineering, and one of the representatives from The California Onsite Wastewater Association (COWA), echoes that sentiment when he faults the state board for failure to remain “open and communicative” and for a lack of responsiveness to “direct questions from stakeholders.”
Draft Regulations
From the State Water Quality Board’s perspective, the biggest change brought about by the new regulations is that of extending discharge requirements to every onsite system in the state. Heretofore, the board has only regulated large systems through discharge permits. Homeowners and small cluster systems have been exempt, since those systems are allowed under waiver agreements with local health departments. The board, according to Thompson, “thought the locals would support these [new] onsite regulations.”
The draft regulations aim to provide uniform design standards for the entire state. In some cases, those standards would be more restrictive than existing regulations, but in other situations they would be more generous, according to Storm Goranson, head of Santa Rosa-based Environmental Engineering Associates Inc. On the one hand, he points to properties with slow percolation rates, where he says the proposed regulations “allow that the leach field be expanded rather than saying that a system is not allowed.” On the other hand, he notes that the state is proposing to “use only the bottom areas to calculate the size of leach fields” and not trench sidewall areas as is common in county regulations. Furthermore he suggests that site information required for submitting a permit may be “too extensive,” especially the provision for showing every well within 600 feet of a proposed onsite system. On balance, though, Goranson likes the new approach “as long as we have a tool that allows repairs” without stopping new development.
The proposed regulations open the door to increased use of advanced, or, as they are called in the regulations, “supplemental treatment systems.” Tina Edvardsson is vice president for engineering with MicroSepTec, the only California-based manufacturer of advanced treatment systems. She is convinced that the new regulations “will open up the market for advanced systems,” especially around “waters contaminated by nitrates or coliform.”
Those are waters listed as “impaired” under Section 303(d) of the federal Clean Water Act, and the proposed regulations would require that nearby properties (within 600 feet) convert to supplemental treatment by 2009. Needless to say, that is extremely contentious, since it would impose substantial costs on affected property owners.
One of the biggest changes the new regulations propose is to institute monitoring and reporting requirements for advanced systems. Sam Carter, government relations manager for Orenco Systems (Sutherlin, OR), supports such requirements but worries about the “management structure” needed to achieve those objectives. The regulations propose that homeowners obtain renewable operating permits and report results of testing to local authorities. However nothing in the state regulations would force homeowners to take action. As Edvardsson points out, it will be up to local regulators who will have to show that pollution is coming from the onsite system—which might be a tricky proposition, technically and politically.
Problems, Problems, Problems
Stakeholders evidenced concern about the conflict between adopting statewide regulations and maintaining flexibility to deal with local conditions. A concise statement of the issue comes from Terry Schmidtbauer, environmental health manager for Solano County and a prime mover in the alternative to the state regulations proposed by the California Conference of Directors of Environmental Health (CCDEH): “We have not been able to get a unified state standard that is protective of the state’s waters and is still easily implementable.” After all in southern California, the depth-to-groundwater standard has been 10 feet. But in northern California, he notes, “We can get down to 2 feet with alternative treatment and still protect groundwater.”
Hemminger, the consultant to the rural counties association, points to practical problems offered by a standard that largely affects the less well-off areas of the state. “How much assistance will be available from the regional boards?” he asks, adding that “some counties may not be able to permit advanced systems without such technical assistance.” In fact, Hemminger and others point out that rural counties may simply refuse to adopt the new standards and hand enforcement back to the regional water quality control boards, requiring those agencies to hire staff to enforce the program. Thompson recognizes that there are “concerns about staff time at both levels.” But, he acknowledges, there are no easy answers to staffing in an era of shrinking government budgets.
California’s nine regional water quality control boards will continue to have authority to adopt more restrictive regulations than those at the state level. As Schmidtbauer notes, “We are looking at state regulations as a base … and would defer back to regional boards and local agencies to develop standards specific to that region.” But that begs the issue that statewide regulations were supposed to address. Carter voiced the industry’s concern: “If a lot of counties go that route, we will continue to have a checkerboard of different regulations. That takes a lot more time for us because we have to get approvals in all those local areas.”
The draft regulations themselves raise a host of concerns, some of which center on a lack of specificity while others arise from too much specificity. Goranson says there is a failure to provide a “uniform methodology for testing systems.” In his view, the industry needs specific standards for inspection, and those are not provided in the draft regulations. Carter voices a parallel criticism. He speaks of a need for “the state to develop a process to approve alternative treatment technologies,” a process that looks at “how systems perform throughout the year in real situations.” He believes that such bench tests as those enumerated in the regulations are good “preliminary tests but not sufficient.”
On the other hand, stakeholders point to the overly restrictive nature of some regulations. Goranson cites detailed specifications for mound systems that fail to take into account the standards successfully used in his own county. Schmidtbauer takes the criticism to a more general level when he faults the regulations for being “overly prescriptive” and warns that some standards in the regulations “will fail prematurely.”
Backers of the draft regulations argue that greater governmental control over onsite-system owners will lead to fewer system failures. But they lack any real evidence to back up their contentions. It is clear, though, that the regulations will impose substantial costs on homeowners—increased permit fees, expensive engineering, new requirements for operating permits, and higher costs for property transfers. Sharply increased costs are likely to hit elderly and low-income residents especially hard and could even lead to the possibility that some will lose their homes. Those concerns led the community-based Environmental Justice Coalition for Water to call for attention to the effects that regulations may have on low-income and minority homeowners in rural areas.
Industry Impacts
The proposed regulations seem like good news for the onsite industry. The market for advanced treatment systems is likely to open wider. Edvardsson points out that the existence of state regulations “will open up counties that don’t have a code that now allows alternatives.” If nothing else, local officials may become more aware of new ways of treating onsite wastewater. Thompson agrees. “There will be wider acceptance of alternative systems,” he says. “While the state is not certifying such systems, it is acknowledging that they can work.”
With the growth of advanced treatment systems, operations and maintenance specialists are likely to find increasing demand for their services. The draft regulations call for qualified service providers to work on the more sophisticated systems, but nowhere do they specify the qualifications or training required for those people. Some manufacturers have started to train their own service personnel. Orenco reportedly has more than 50 service providers in California, typically trained by dealers. MicroSepTec assigns a service technician to each unit it sells, according to Edvardsson. Other companies are likely to follow suit in order to sell their products in the state even in the absence of explicit regulations.
Along with opportunities comes a host of challenges for the industry. State regulators have no plans to certify alternative systems or create training standards. So it will be up to the industry to develop programs to assure the public that adequate safeguards are in place. Already there are signs that the industry is stepping up to the plate. The National Sanitation Federation (NSF) is testing and certifying advanced systems under its Standard 40 protocol. On the training front, the Consortium of Wastewater Training Institutes has developed a curriculum that will be delivered for the first time in California in March under the auspices of COWA. Kit Rosefield, whose firm Accredited Septic Monitoring provides monitoring services for onsite systems, believes that certification of operations and maintenance people is a key step because, “It will establish a level playing field” and ensure “consumer protection.” In the absence of strong programs to ensure competence of service personnel, “there may be a backlash from the actions of those who are unqualified.”
Regulations may even push creation of new types of businesses and expand worries for onsite practitioners. Businesses may arise to provide data to onsite designers, similar to what occurs in the field of hazardous waste. A whole new industry may spring up to deal with operations and maintenance. Goranson also points to the real likelihood of increased liability for inspectors. “Real estate inspections are a litigious area,” he says. “We can inspect a septic system one day and then find that it doesn’t work when new people move in.” In rural counties, he maintains, “Lots of lawsuits come over septic systems.”
The net result of the push for tighter controls over onsite systems seems to be an equal pull on the industry to professionalize. Most observers would agree with Todd Thompson who expects changes to lead to “higher levels of competence.” If all else fails, he chuckles, “you can blame it on the state.”
Next Steps
The final shape of California’s regulations is still very much in doubt. The latest draft, issued in April 2005, is now undergoing environmental review. Results are expected around the beginning of the year. Then the preliminary Environmental Impact Report will be subject to comment, after which regulations may be altered to take public reaction into account. The final step will likely occur no earlier than late spring, when the five-member State Water Resources Control Board considers whether to adopt the regulations as proposed or seek further changes.
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Even if the regulations are not passed in their current form, the process has had an impact. Edvardsson regards the regulations as galvanizing change “just by existing.” Echoing that, Steve Braband, co-owner of Agoura Hills-based BioSolutions Inc., contends that the state process has helped educate local regulators about advanced systems. “In many jurisdictions in southern California, it’s been conventional or nothing,” he says. Now advanced systems are receiving increasing consideration.
Even if the proposed regulations never see the light of day, the debates that have occurred over the past couple of years will still have served an important purpose. As Rosefield suggests, “Standards are being established, but this is an industry-driven change more than a regulatory change.” The dynamic onsite field is poised to move ahead on its own, pushed by changes in technology and practices. In fact, by moving softly, government officials may actually achieve greater protection of the public health and the environment than by pushing regulation that creates antagonism and recriminations.
BOB FEINBAUM is director of Hydro Nova, an Oakland, CA-based nonprofit organization focusing on water conservation and wastewater issues. He can be reached at: bobfeinbaum@earthlink.net.
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OW - January/February 2006 |
