1 2 3 4 5 6 7 KERR COUNTY COMMISSIONERS COURT 8 Workshop 9 Wednesday, September 27, 2000 10 9:00 a.m. 11 Commissioners' Courtroom 12 Kerr County Courthouse 13 Kerrville, Texas 14 15 16 17 O.S.S.F. Workshop 18 19 20 21 22 23 PRESENT: FREDERICK L. HENNEKE, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3 25 LARRY GRIFFIN, Commissioner Pct. 4 2 1 On Wednesday, September 27, 2000, at 1:30 p.m., a joint 2 workshop of the Kerr County Commissioners Court and 3 T.N.R.C.C. was held in the Commissioners' Courtroom, Kerr 4 County Courthouse, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE HENNEKE: It is 1:30 on Wednesday 8 afternoon, September 27th, Year 2000. We'll call to order 9 this workshop of the Kerr County Commissioners Court. We're 10 having a workshop here to meet with representatives from the 11 T.N.R.C.C. to discuss the rules of Kerr County, Texas for 12 on-site sewage facilities which were adopted by this Court 13 on August 14th, subject to the approval of the T.N.R.C.C. 14 We have with us today Mr. Ken Graber and Mr. Morris Haberson 15 from T.N.R.C.C. So, gentlemen, we're here to listen. I'll 16 turn it over to you. 17 MR. GRABER: Thank you for having us. Usually 18 in a workshop, we have a little bit smaller crowd, but 19 that's okay. We've met with U.G.R.A., we've met with 20 Charlie and Mark and discussed the proposed order, I think, 21 with U.G.R.A. and for Kerr County. And, the last one we got 22 was from the Kerr County Commissioners. And, we had several 23 questions here, so we decided that in -- normally, in cases 24 like this, we'll set up a workshop and discuss, maybe, what 25 some of the intent is on some of these and, really, where 3 1 you want to be, and maybe try to give some assistance in 2 getting there. You followed the order pretty much 3 throughout this, which is great. I think that Charlie and 4 Mark kind of changed that around to provide the model order, 5 itself. And, Section 10 is set up to be more stringent. We 6 set up Section 10 to be more stringent. As I was talking to 7 Commissioner Baldwin earlier, this is for the people that 8 work in the many jurisdictional areas; instead of reading 9 the entire rules, they can turn to Section 10 and just see 10 what's more stringent in each particular entity's 11 jurisdiction. 12 JUDGE HENNEKE: Hold up just a minute, Ken. 13 Can everyone hear Ken okay? 14 AUDIENCE: No. 15 JUDGE HENNEKE: I know he doesn't really want 16 to talk with his back to everybody, but -- 17 AUDIENCE: Can the podium turn around 18 sideways? 19 (Discussion off the record.) 20 COMMISSIONER GRIFFIN: Just turn the mike; 21 you can actually speak at it from the side. 22 MR. GRABER: Okay. As I was saying, Section 10 23 is set aside to be more stringent for each entity. And the 24 reason that was set up that way is that we have installers, 25 designers that are working in many different jurisdictional 4 1 areas, and it's kind of unfair for them to read an entire 2 document just to see what's more stringent in each entity's 3 area of jurisdiction. 4 I think that we did cover the basics on this 5 thing. There's four things that we're looking for when the 6 order comes to us. In a complete, finished package, the 7 first thing that we're looking for is a certified copy of 8 the Order. I think this one was certified. We need a 9 certified copy of the minutes. We need a copy of the 10 notice, public notice that appeared in the paper. And 11 that's just a copy as it's cut out, and a publisher's 12 affidavit of when that was in the paper, itself. And, what 13 the rules require is that notice in the paper 72 hours in 14 advance of the meeting, and after that, it's up to 15 Commissioners Court as to when you'll set up your agenda 16 item to pass and approve that. So, I guess if we don't have 17 any questions, we can go ahead and get started and just kind 18 of go down through this. 19 The first part we're looking at is Section D. 20 And, about the third -- excuse me, about the third line from 21 the top, we have -- excuse me, second line from the bottom, 22 it is designating the U.G.R.A. as the Designated 23 Representative. The Designated Representative is just 24 simply the inspector; that's all that is. And, I'll do a 25 little cross-referencing here. Real quick, that's Section 5 1 12-1, and this section should coincide to say who has the 2 duties and the powers, that Kerr County Commissioners Court 3 delegates U.G.R.A. as the Designated Representative. So, 4 that's one thing it is -- and while we're there, anyplace 5 that we see "private sewage facilities," we've changed that 6 over to "on-site wastewater facilities." That came about 7 actually in about '88, I guess. So, we're asking everybody 8 to go ahead and put "on-site sewage facilities" instead of 9 "private sewage facilities." And, I think a couple places 10 where it's referenced in the old order is the only place 11 that we found this. 12 COMMISSIONER BALDWIN: Ken? 13 MR. GRABER: I've got a place -- go ahead. 14 COMMISSIONER BALDWIN: In Section 11 -- 15 MR. GRABER: Mm-hmm? 16 COMMISSIONER BALDWIN: -- it says, "Based on 17 recommendations to the Commissioners Court by appropriate 18 authority, the Designated Representative" -- we need to take 19 out "Designated Representative" and put "U.G.R.A." in? 20 MR. GRABER: Yes. 21 COMMISSIONER BALDWIN: Is what why -- is that 22 what you're saying? 23 MR. GRABER: Yes. 24 COMMISSIONER GRIFFIN: That's my question, 25 because that doesn't -- that doesn't comport with the 6 1 T.N.R.C.C. definition. It says the Designated 2 Representative is an individual -- 3 MR. GRABER: Okay. 4 COMMISSIONER GRIFFIN: -- who is designated, 5 so which one is right? 6 MR. GRABER: And we can take individual and 7 go get it defined, like "owner" and everything, and probably 8 get it defined to the N'th degree, to say that we have had 9 entities designated as Designated Representatives. It would 10 be no different than if you had a Health Department here and 11 you would say Kerr County Health Department is the 12 Designated Representative. 13 COMMISSIONER GRIFFIN: So, the definition is 14 wrong in the -- 283 or whatever that -- 15 MR. GRABER: 285. 16 COMMISSIONER GRIFFIN: 285 is -- definition 17 says it is an individual who is designated by the 18 Commissioners Court. 19 MR. GRABER: And have we defined "individual" 20 in there? 21 COMMISSIONER GRIFFIN: Well, it doesn't 22 say -- that is the definition of Designated Representative. 23 MR. GRABER: And that's what I say, is 24 "individual" is like "owner." If a corporation is the 25 owner, and we said "individual" on there -- 7 1 COMMISSIONER GRIFFIN: Okay. 2 MR. GRABER: I mean, I think that we can take 3 that to the N'th degree. 4 COMMISSIONER GRIFFIN: I'm not arguing. I'm 5 saying that's the reason it's worded that way, 'cause we 6 went through and did a work check and made sure that we 7 didn't say "U.G.R.A."; that we, indeed, identified the 8 Designated Representative as an individual. There is a 9 separate court order which assigns our Designated 10 Representative by name, and that's the way we have done it, 11 because of the way it's defined in 285. 12 MR. GRABER: Okay. But in the preamble, it's 13 still got U.G.R.A. up in the preamble, regardless of what 14 "individual" is defined as. 15 JUDGE HENNEKE: But the preamble is simply a 16 recitation of what the March 1980 order is. 17 COMMISSIONER GRIFFIN: That may have been an 18 error, but it -- but that's what the order said. 19 MR. GRABER: Okay. 20 JUDGE HENNEKE: The preamble does not -- 21 COMMISSIONER GRIFFIN: That's a Whereas. 22 JUDGE HENNEKE: We can change that, but -- 23 MR. GRABER: The preamble that we're looking 24 for is contained in the model order up here, and this is a 25 little bit different than what we've had, as far as that 8 1 goes. And we can go on down in the preamble for some other 2 things, but it is different. The only thing that we laid 3 out in the preamble in the model order is to lay the 4 groundwork here to set up the authority for an entity to 5 regulate on-site sewage facilities, as well as maybe even 6 incorporate more stringent standards. In your particular 7 situation, it would be the groundwater or Priority 8 Groundwater Management Area, and that is a fantastic place 9 to do that. Because when we start increasing lot sizes and 10 we start doing it under on-site wastewater, we need to get 11 technical, why we're doing that. I think for individual 12 well, individual septic on this particular issue, you went 13 2.5 acres, and I'm not sure how we would go that much unless 14 you had that groundwater -- the management area set up. And 15 that's a good place to do -- 16 JUDGE HENNEKE: That's not a change. That's 17 the way it's been. 18 MR. GRABER: Okay. 19 JUDGE HENNEKE: For a number of orders in the 20 past. We did not increase the lot sizes in this document; 21 they're the same as they were before. 22 MR. GRABER: I understand. But this is the 23 basic model order, and this is just like we are almost 24 adopting a new order. We understand that you have been 25 delegated the authority since 1980, and the history will 9 1 show that. But what we are doing is setting a precedent 2 here. We don't go back to a 1980 preamble and put it in 3 here. We're using a current model order that we have set up 4 for this purpose, and -- 5 COMMISSIONER GRIFFIN: Let me jump ahead a 6 little bit, 'cause it relates to it. But you're saying 7 Paragraph F in the preamble is okay? 8 MR. GRABER: Yes, I think that that's setting 9 up your groundwater management area. 10 COMMISSIONER GRIFFIN: Right. 11 MR. GRABER: Right. Because I'm not sure 12 what kind of justification that y'all could provide to show 13 that you're needing 2.5 acres for an individual well and 14 individual on-site system. 15 COMMISSIONER GRIFFIN: So, that's okay, but 16 D, you're saying, should be changed to delete the last two 17 lines, or essentially -- 18 MR. GRABER: Well, I'm just saying what this 19 has designated as U.G.R.A. as a Designated Representative. 20 That's what this tells me. 21 COMMISSIONER GRIFFIN: 'Cause that's just -- 22 MR. GRABER: This does not coincide with 11, 23 which is the duties and the powers. 24 JUDGE HENNEKE: Okay. Well, that's -- we'll 25 take that. And, you want -- you say G is unnecessary; is 10 1 that what you're saying? 2 MR. GRABER: Yeah. I'm not -- I don't think 3 that -- that G is needed in this particular case. 4 JUDGE HENNEKE: So, you're -- 5 MR. GRABER: If we went back and we did put 6 that in there, and y'all wanted it in there, we need to 7 insert proper dates. The dates that you've got in there 8 appears to be the date that -- that the Kerr County 9 Commissioners Court passed that, and not the dates that 10 the -- either the Texas Water Commission or the T.D.H. or 11 T.N.R.C.C. approved the order, itself. Because the '92 12 order was actually September 17th, '92. The '88 order was 13 actually March 22nd, '88. Those are the dates that we have 14 down of approved orders for Kerr County. 15 JUDGE HENNEKE: Okay, take G out. 16 COMMISSIONER LETZ: Go back to the lot size. 17 You said the -- without F, we'd have difficulty with the 2.5 18 acres? 19 MR. GRABER: Mm-hmm. 20 COMMISSIONER LETZ: Since we're in the 21 process of redoing our Subdivision Rules right now and 22 probably are going to change the lot size, is there a -- in 23 the Priority Groundwater Management Area, is there any, I 24 guess, guidance from T.N.R.C.C.? Can you go to 5 acres 25 without any difficulty? 11 1 MR. GRABER: That's not under the on-site 2 wastewater program, and under the delegation of this program 3 to the County, that's not one of those things that we can 4 incorporate into an on-site wastewater order. That is a 5 separate action by Commissioners Court, and y'all are really 6 just kind of piggy-backing, I guess, putting that into 7 the -- site order under that groundwater -- Priority 8 Groundwater Management Area. Maybe I ought to go ahead and 9 say that anything that is more stringent, which 366 -- 10 Chapter 366 of the Health and Safety Code allows y'all to 11 do, must be justified based on greater public health and 12 protection. If we were going to go back and try to justify 13 2.5 acres, I'm not sure how to do that. 14 COMMISSIONER LETZ: We can justify -- I mean, 15 on well spacing or on the -- on water availability, we can 16 justify it on that, but not on-site septic. 17 MR. GRABER: Right. And it's just a matter 18 that we're talking about on-site sewage facilities here and 19 the other course is for the Groundwater Management Area -- 20 COMMISSIONER LETZ: Okay. 21 MR. GRABER: Two separate jurisdictions -- 22 authorities, excuse me. Okay. We get to jump to -- all the 23 way down to Section 6. And, in Section 6, we've just asked 24 to put in all the -- except for the areas within the 25 incorporated cities, and take out Kerrville and the City of 12 1 Ingram. I don't know if there's any other cities projected 2 to come in, but that would cover them, as well. And C, this 3 is one that was added this past time, that the rules -- that 4 y'all proposed this particular order. I guess the best way 5 to state this is -- is that we are delegating authority to 6 Kerr County Commissioners -- I mean to Kerr County through 7 the Commissioners. I'm not sure what the Headwaters would 8 do, but we are delegating the program to Kerr County, and it 9 doesn't have anything to do with the Headwaters at this 10 particular time under on-site wastewater. I'm not sure that 11 that's needed. And, if there's something here that I'm 12 missing, I'm willing to listen. 13 JUDGE HENNEKE: That was inserted to prevent 14 any confusion, to prevent someone from coming and saying, 15 Well, I've satisfied your rules, so I don't have to satisfy 16 the Headwaters rules. 17 MR. GRABER: But, the Headwaters has not been 18 delegated the program under on-site wastewater. 19 JUDGE HENNEKE: This in no way says anything 20 about delegating authority. 21 MR. GRABER: Okay. But there is an on-site 22 wastewater rule. What rules would they have concerning 23 on-site wastewater? 'Cause they have to come through us to 24 get a delegation. 25 JUDGE HENNEKE: They don't have any authority 13 1 on on-site wastewater, but they do have authority over wells 2 and the spacing of wells from on-site sewage facilities. 3 COMMISSIONER GRIFFIN: For example -- let me 4 give you an example where there could be some confusion. 5 And this -- that's what the purpose of this was. If we talk 6 lot sizes, for example -- 7 MR. GRABER: Mm-hmm. 8 COMMISSIONER GRIFFIN: -- you might be able 9 to construe the Headwaters rule, because -- and I don't 10 know -- frankly, don't even know how it's written, but you 11 might construe that to say, Well, if I've got a well here 12 and I've got a septic here, that I can fit that into a -- 13 this size of a lot. They look at this, though, and we say, 14 Hey, you've got to have -- for whatever reason, we're going 15 to have some minimum acreage size. So, there could be a 16 conflict between the two. Both headed in the same 17 direction, but what this would do is just say, Hey, look, if 18 there is anything that affects a rule that Headwaters has 19 legal authority for -- not O.S.S.F., but something else -- 20 our rule on O.S.S.F. doesn't necessarily negate that. If 21 there is something that they're going to try -- that 22 somebody could try to guardhouse lawyer that, Hey, I can do 23 that because I'm meeting Headwaters' -- I'm meeting your 24 requirement, and Headwaters' I'm not meeting. So, they 25 can't play the organizations against each other, just saying 14 1 that, Hey, don't use this as the basis for -- for getting 2 around the Headwaters rule, and vice versa. I would hope 3 the Headwaters would say the same thing; Don't use our rules 4 as some way to get around the O.S.S.F. rules for the County. 5 MR. GRABER: And I understand where you're 6 coming from, and the Judge and I kind of did the same thing, 7 did a little role-playing back and forth, and he very 8 politely told me he wasn't going to get out that easy, and I 9 agreed with him. But, what I asked you to do is maybe that 10 you'll coordinate together so it is not confusing. 11 MR. HABERSON: With the Headwaters. And if you 12 increase that separation distance to 150 feet, or whatever 13 it is -- 14 COMMISSIONER GRIFFIN: Mm-hmm. 15 MR. GRABER: -- that it's put in here in the 16 justification that's added in here is not because of the 17 on-site rules for Kerr County, but it is under the authority 18 of the Headwaters and their authority to regulate wells and 19 distances. We get into a real fine line here in saying at 20 what point are they regulating wells and at what point are 21 they regulating on-site sewage facilities. Which came 22 first, the chicken or egg? If the well was in first, we 23 understand about the on-site system. That's the question. 24 If the on-site system's there, then there's no question 25 about where they drill the well. So, it gets real 15 1 confusing, then. What do we regulate, wells or on-site? 2 Has to do with which one is there. And we'd like to take as 3 much as that confusion out as we possibly could, if that's 4 possible. And the only way it would come about is if the 5 well was there first. 6 COMMISSIONER GRIFFIN: Mm-hmm. 7 JUDGE HENNEKE: No. 8 MR. GRABER: If the on-site was there -- 9 JUDGE HENNEKE: If the on-site's there first 10 and they want to get a -- put a well in, they first have to 11 get permission to put the well in, it has to be 150 feet 12 from on-sites, regardless. Headwaters doesn't have any 13 jurisdiction over on-site; they could care less where the 14 on-site goes, so long as it's 150 feet from the well. 15 MR. GRABER: But if an on-site system is 16 there, they're just guarding the well, not the on-site 17 system. And they're -- they're giving a permit for this 18 well. 19 JUDGE HENNEKE: That's right. 20 MR. GRABER: Vice versa. If the well is 21 there first, then that's where the confusion would come in. 22 If the well is there first, then the on-site system comes in 23 question, 'cause y'all are the permitting authority. Are 24 you going to go by Headwaters' rules, or do you go by Kerr 25 County rules? And that's where the confusion comes in. 16 1 COMMISSIONER LETZ: So, what you're saying is 2 we should put the same language that Headwaters has in 3 theirs, exactly, as to the distance the septic systems needs 4 to be from the well? 5 MR. GRABER: And state that it is not due to 6 y'all's rules, as far as justification. It's Headwaters' 7 authority to regulate wells. And, like I said, it comes 8 into -- to a fine line, that they are coming close to 9 regulating on-site sewage facilities, because are they 10 saying the on-site system has to be 150 feet from the well, 11 or the well 150 feet from the on-site system? Same thing. 12 COMMISSIONER GRIFFIN: Mm-hmm. So, that 13 could come out of C, and wording it -- you just mentioned, 14 Jonathan, could go somewhere in 10 as a reference, right? 15 MR. GRABER: Yes, sir. 16 COMMISSIONER LETZ: So, let the -- take it 17 out of here and move to it 10? 18 COMMISSIONER GRIFFIN: Take it out of C and 19 move to it 10, and coordinate that with Headwaters. 20 MR. GRABER: Okay. We'll go to Section 10, 21 itself. In the fourth line, we have, "Commissioners Court 22 shall take precedence over any more stringent requirements 23 imposed by other legal authorities." And, only thing that I 24 have is a question mark there. Is there something there 25 that we're missing? I understand we're talking about the 17 1 Headwaters deal, but -- 2 COMMISSIONER GRIFFIN: No, the intent there 3 was perhaps other organizations, for example, with legal 4 standing, like a homeowners' association that's incorporated 5 has legal standing, has the ability to, you know, have 6 building constraints and they have rules and that sort of 7 thing, covenants, if you will. For example, a subdivision. 8 But, if they have a rule that's less stringent than the 9 O.S.S.F. rules that's in this order, this takes precedence. 10 That's what that's saying. Over any other legal authority 11 that may exist. We don't know what it is, but they can't -- 12 they can't lessen the rules in their subdivision by writing 13 it into their covenants, for example, that it would be a 14 lesser requirement. 15 MR. GRABER: Okay. What got confusing to 16 me -- and that's why I asked, and I'm looking at it as the 17 Kerr County Commissioners have the jurisdiction for all 18 on-site sewage facilities within Kerr County. There's no 19 question of anything else after that, except unincorporated 20 areas and areas in U.G.R.A. 21 COMMISSIONER GRIFFIN: Right. 22 MR. GRABER: There's no questions other than 23 that. And, by putting that in there, it confused me, and 24 I'm saying it could confuse somebody else. Because, 25 point-blank, y'all have jurisdiction over on-site. There is 18 1 no other legal authority for on-site in the unincorporated 2 areas except Kerr County. 3 COMMISSIONER GRIFFIN: So, what if we put a 4 period after the word "Court" and struck the rest of that? 5 MR. GRABER: Sounds great. 6 COMMISSIONER WILLIAMS: Or a period after 7 "requirements." Any less stringent requirements. 8 COMMISSIONER GRIFFIN: Okay, what he's saying 9 is there can't be less stringent requirements. 10 COMMISSIONER BALDWIN: That thought's still 11 there, though. 12 COMMISSIONER GRIFFIN: Yeah. We could just 13 put a -- yeah, 'cause who would set it -- what he's saying 14 is that we've got enough legal horsepower to say, Wait a 15 minute, now, you can't have that, because this order 16 precedes it, by definition. I don't have any problem with 17 that. Just put a period after the word "Court." 18 MR. GRABER: Skip down to Number A there, and 19 we can make this one real simple by scratching out the 20 entire first sentence, because that's a given. That's in 21 366 and 285. And just leave the last sentence, "A permit to 22 construct is valid for six months." That's all we need 23 there. 24 COMMISSIONER LETZ: Without that language, 25 what -- how long is it valid? Is there -- 19 1 MR. GRABER: At this point, we haven't put it 2 in there. It's proposed in the new rules, isn't it? 3 Actually, I think it is for -- for some of the entities. 4 It's either in our jurisdiction or their jurisdiction. 5 MR. HABERSON: We have it in our rules, in our 6 subdivision -- 7 MR. GRABER: Okay. And it's not in y'all's; 8 that's what it is. So, it's indefinite at this particular 9 point. Right now, we do have a set of proposed rules that 10 Warren is working on, and there are numerous changes, 11 because there was such a large change in the old rules and 12 the '97 rules. We're doing a cleanup revision on that, and 13 that is one of the things that's added, is the permit to 14 construct is going to be good for one year. So, that -- if 15 it goes through, it will be added. We're not telling to you 16 take it out, 'cause we don't know when the rules will go 17 through. Okay. B, the only thing that we're asking here is 18 to justify how is it more stringent? I have visited with 19 Mark and Charlie on this one, because what we are asking is 20 that the designer certify the final installation drawing. 21 That's actually what it is saying. Y'all need to justify 22 how -- and I think what the intent was -- and, Charlie, 23 correct me if I'm wrong here -- is to have the install -- 24 the designer, whoever that is, inspect their own work, their 25 drawings out there; is that correct? 20 1 MR. WIEDENFELD: Yes. 2 MR. GRABER: Okay. And since the inspectors 3 are doing that, y'all need to demonstrate how that is more 4 stringent, if that designer goes out and looks at that 5 system and says his work is okay. 6 COMMISSIONER GRIFFIN: I think what we're 7 really -- I think the certification -- again, Charlie you 8 may have to jump in here -- the certification on the 9 drawings was -- was -- is not to inspect the work, but it 10 was certifying that the drawing's correct, and that was to 11 get away from handwritten sketches on the backs of envelopes 12 that says, there's the drawings for the system. And, we 13 were trying -- what I think the intent -- Charlie; is that 14 correct? Am I right? 15 MR. WIEDENFELD: Well, some of the intent, 16 you know, is to get definitely the designer on record to 17 make a statement that says that it was put in properly and 18 to State standards and per his design. And, again, the -- 19 some of the intent there was to reduce the County's 20 liability in the inspection process, in making mistakes. 21 That way there would be a -- would be two people there; 22 hopefully would, you know, catch -- you know, a proper 23 installation would occur then. So, this is why. 24 COMMISSIONER GRIFFIN: So, accurate drawings. 25 I understood that that was one of the big drivers, because 21 1 we do not, in many cases, get real accurate drawings from 2 some installers. It's a sketch that's handed to Charlie and 3 says, this is the way it's installed. And, what we're -- 4 what this requirement was to do is -- and I understood it 5 when we went through the drafting process, was to require 6 that the installer certify the drawing, that the drawing is 7 correct. So, I don't know whether we need that or not. I 8 mean, I'm not -- 9 COMMISSIONER LETZ: Why -- maybe this is a 10 really stupid question, but why do we need a certified 11 drawing? I mean, it's up to the property owner to maintain 12 the system. Why does the County want to -- it's basically 13 through U.G.R.A., but the County want a certified drawing of 14 every septic system? I mean, I don't see the reason. 15 COMMISSIONER GRIFFIN: Primarily, I think in 16 the event of a failure, we know where to go to get at it. 17 MR. GRABER: And I agree. 18 COMMISSIONER GRIFFIN: I think that's -- 19 MR. GRABER: I think we're talking two 20 different things here. I'm going to try to focus in on one 21 thing. First thing is the accurate drawings and 22 certification. I agree with you 100 percent, and that 23 should be in the 285 rules, 366, is that we have accurate 24 drawings on there. And, two things are built into that 25 process. The first thing is the authorization to construct, 22 1 is that these planning materials are submitted to, 2 presently, U.G.R.A. They review them to make sure that -- 3 JUDGE HENNEKE: They're submitted to the 4 Designated Representative, who is not U.G.R.A., it's 5 Mr. Wiedenfeld. 6 MR. GRABER: Who is the Designated 7 Representative? 8 JUDGE HENNEKE: Charles Wiedenfeld. 9 MR. GRABER: It is not U.G.R.A.? 10 JUDGE HENNEKE: No, it's not been U.G.R.A. 11 for some time. 12 COMMISSIONER GRIFFIN: There's a court order 13 saying that. 14 MR. GRABER: Okay. I'm looking back at the 15 preamble again. 16 JUDGE HENNEKE: Again, I tried to tell you, 17 all the preamble does is recite what the 1980 court order 18 was. It's not intended -- maybe it's confusing, but it's 19 not intended to designate a Designated Representative, 20 because we have subsequent orders designating Mr. Wiedenfeld 21 as the Designated Representative. 22 MR. GRABER: Okay. And that's why we put in 23 this section, is to get the confusion out of here of who the 24 D.R. is. And that's in Section 11. 25 JUDGE HENNEKE: So, we'll get down to that. 23 1 MR. GRABER: Okay. And if you put somebody's 2 name in there and that person leaves, you've got to go back 3 and amend the order. And what we've tried to get people to 4 do is put a title in there; a simple title like "On-Site 5 Sewage Facilities Inspector" will suffice. But if we put a 6 name in there and that person leaves, that means you have to 7 amend that order again. 8 COMMISSIONER GRIFFIN: We have a separate 9 court order which names our Designated Representative, and 10 the only language we've used in the rules is the term 11 "Designated Representative." 12 MR. GRABER: Okay. 13 COMMISSIONER GRIFFIN: But, for example, 14 today, if Charlie decides to go have fun somewhere else, 15 then -- then we're -- we would -- it would be incumbent upon 16 to us convene and designate another Designated 17 Representative. 18 MR. GRABER: And to take out that confusion 19 to us, we've asked that a title be put in there. So 20 somebody -- we know that there's a title and where this is 21 going. Actually, this wasn't something we had a question 22 about, but I have more and more questions that keep coming 23 up on this as time goes on, on the Designated 24 Representative. And, it would -- we've set this up so it 25 would take that ambiguity out of there. 24 1 Okay. Back to the permit to construct, as we 2 were going on. 3 COMMISSIONER GRIFFIN: Let me -- I don't mean 4 to belabor this, but I have a little trouble with that. If 5 we have a Designated Representative and it's an organization 6 like U.G.R.A., and that is, quote, the Designated 7 Representative, who is legally responsible and liable within 8 the U.G.R.A. for the inspections and so on? Is it their 9 Board of Directors? Is it the General Manager? Is it the 10 employees? But where does the responsibility lie, then? If 11 we don't have somebody by name on our court order, separate 12 and apart from the rules, who do we know who to go at? Who 13 do we know to go talk to? 14 MR. GRABER: You are responsible. 15 COMMISSIONER GRIFFIN: But we are designating 16 a representative. 17 MR. GRABER: I understand, but you are 18 still -- 19 COMMISSIONER GRIFFIN: If the Representative 20 doesn't perform, who do we go complain to? 21 MR. GRABER: You. 22 COMMISSIONER GRIFFIN: The Board? 23 MR. GRABER: No. You are the Designated 24 Representative's boss. You are the one responsible for 25 enacting the on-site sewage facilities here in Kerr County. 25 1 JUDGE HENNEKE: Okay. 2 COMMISSIONER GRIFFIN: Authorized agent. 3 MR. GRABER: You're the authorized agents. 4 JUDGE HENNEKE: Can an organization like the 5 U.G.R.A. hold a certificate from the T.N.R.C.C.? 6 COMMISSIONER GRIFFIN: Training -- properly 7 trained and all that? 8 MR. GRABER: Not them as such, no. 9 JUDGE HENNEKE: Well, then that organization 10 can't be Designated Representative, because the literal 11 words of your definition says an individual who holds a 12 valid certificate. 13 COMMISSIONER GRIFFIN: And -- 14 JUDGE HENNEKE: Designated Representative. 15 COMMISSIONER GRIFFIN: And that's out of 285. 16 MR. GRABER: I understand. And we've gone on 17 to say individuals -- like I said, numerous individuals can 18 be defined numerous different ways. 19 MR. HABERSON: What may be the -- maybe the way 20 to do this, and it takes out the name, would be to say the 21 appropriate authority, the O.S.S.F. inspector for Kerr 22 County shall be appointed. Then you don't have U.G.R.A. 23 mentioned or any person's name mentioned in particular. 24 You're just setting that, and your separate court order 25 still is valid, because you've designated who the individual 26 1 is. All this would be is you've designated a title to be -- 2 JUDGE HENNEKE: We have a title. The title 3 is "Designated Representative." 4 MR. HABERSON: I understand. I understand 5 what you're saying. But who is the Designated 6 Representative? 7 JUDGE HENNEKE: But the Court order that we 8 have passed tells you who it is, just like it would if it 9 was U.G.R.A. or Headwaters or Commissioner Baldwin or 10 anybody. There is -- there was a court order that said that 11 the O.S.S.F. inspector is -- 12 MR. HABERSON: Right, I understand. I don't 13 think it's -- personally, I don't think it's an issue that 14 we need to argue about at this point in time. You know, I 15 think we've -- we've made a statement. You can -- if you 16 want to go with this Designated Representative and leave 17 that, we still -- we're going to look at something here. We 18 want to see something. To me, that's not the big issue in 19 this whole thing, because we've got some other things that 20 we're concerned about. Just however it's stated, it needs 21 to be stated. I understand what you're saying, though. 22 COMMISSIONER LETZ: But y'all are trying to 23 have one document, as opposed to two, basically. Right? 24 Now we have the Court order that appoints the Designated 25 Representative as U.G.R.A., and y'all would like us to have 27 1 one document that does it all at the same time? 2 MR. GRABER: No. What this actually is here 3 for is to give the basic authority, and it's just like fees. 4 We want to give y'all the right to collect fees. The 5 statute says that. We just want to make sure that the 6 authority's here. We're not saying here what the fees are; 7 that can be set someplace different in the Court. That's 8 all we're saying, is to give a title, to cut out some of the 9 things that we say of who is the on-site inspector. If you 10 want to put, "The Designated Representative will be 11 appointed by Kerr County," we'll take a look at that, if 12 that will work. 13 COMMISSIONER GRIFFIN: We'll play with that, 14 try to make sure we can remove the ambiguity. 15 MR. GRABER: Okay. We're going back to B, 16 the certified final installation drawing. As I said, I 17 think there needs to be an accurate drawing, and I was 18 explaining that the planning materials should be there as 19 accurate as they can. If those change at the time of 20 inspection, there needs to be what's everybody refers to as 21 as-built drawings, and those do need to be accurate. That's 22 what I hear from here. What I'm hearing from this side 23 is -- is that we have the designer to go out and inspect the 24 work that -- let's say it's an R.S. or P.E. to go out and 25 inspect their work to insure that what they designed did 28 1 meet standards. Is that what I'm hearing? 2 MR. WIEDENFELD: That it was installed 3 according to their designs. 4 MR. GRABER: What's the purpose of a final 5 inspection, then? I wasn't aware that we were allowing 6 installers to go out and do their own final inspection. 7 MR. WIEDENFELD: They're not doing their 8 final. We're doing their final inspection. They're 9 submitting the final drawings for their work. 10 COMMISSIONER GRIFFIN: Right, that's all 11 we're looking for from them. So -- but that's actually 12 called for in -- in 285, isn't it? 13 MR. GRABER: And 366, that the inspection 14 will be conducted. 15 COMMISSIONER GRIFFIN: So it does sound like, 16 to me, we can probably take that out, take the paragraph out 17 entirely, because that's in -- 18 JUDGE HENNEKE: No, we -- I think we could 19 take out the parenthetical, including the final inspection 20 by the Designated Representative, accurately certified, 21 installed -- I think we could take that out. 22 COMMISSIONER GRIFFIN: Oh, I see what you're 23 saying. 24 COMMISSIONER LETZ: Say it again, Judge. 25 JUDGE HENNEKE: Take out from "including" to 29 1 "drawings," because that's part of the process. 2 COMMISSIONER GRIFFIN: Right. 3 JUDGE HENNEKE: Its already required. 4 MR. GRABER: Could you read that sentence to 5 me, please? As it stands. 6 JUDGE HENNEKE: Well, as we would propose, it 7 would say, "Only after meeting all requirements of this 8 order may a licence to operate be issued to the owner by the 9 Designated Representative." 10 MR. GRABER: Okay. Then I would say that 11 that meets 285 and 366, and it's not any more stringent. 12 JUDGE HENNEKE: Okay. 13 (Discussion off the record.) 14 COMMISSIONER LETZ: So, the whole paragraph 15 can come out. 16 COMMISSIONER GRIFFIN: Take it out. Great. 17 MR. GRABER: Okay. C comes into -- I 18 understand your intent of trying to explain what a license 19 to operate is. Again, I would go back to the dates to make 20 sure that they're accurate. The October 1st of '92 -- and 21 I'm referring back to where I'm looking at -- excuse me. 22 September 17th, '92 is the date that we have, and just 23 justify where that comes from. 24 COMMISSIONER GRIFFIN: We can go back and 25 resolve those with the orders, because obviously there's 30 1 probably a -- maybe the order even says effective 2 October 1st. 3 MS. SOVIL: That's right. 4 COMMISSIONER GRIFFIN: I think that's the way 5 that one is worded. It says -- it's not the date of the 6 order, but it's -- the order on September the 17th of '92 7 said "effective October 1st, 1992," such-and-such and 8 so-and-so. And that's the reason for that date. But, we -- 9 we'll doublecheck that to be certain. 10 MR. GRABER: The next ones that I have as far 11 as just D E and F just have to do with lot size. And the 12 only thing that I'm putting on there is to justify, 'cause 13 the only thing I got were -- was the order, itself. I 14 didn't have any justification. 15 JUDGE HENNEKE: I think we can probably take 16 E and F out. 17 (Discussion off the record.) 18 COMMISSIONER LETZ: I was back on C still. I 19 was having a problem with C. 20 JUDGE HENNEKE: Okay. What problem do you 21 got with C? 22 COMMISSIONER LETZ: I'm reading that, and, 23 you know, as I read it, okay, no owner shall operate an 24 O.S.S.F. without a license to operate, except if it was 25 installed prior to '81, whatever the date -- proper date is. 31 1 COMMISSIONER GRIFFIN: Licensing requirement. 2 COMMISSIONER LETZ: And is not threatening 3 public health or environment; or, two, if the property has 4 not changed ownership since 1992 and is not threatening the 5 environment. Well, what about -- I mean, there was an 6 exception for a lot of properties that did not have to 7 license because of an acreage limit that we used to have 8 after '92. So, if someone -- if a 1,000-acre tract sold in 9 '93, under the rules at that time, that did not have to be a 10 licensed system. This is saying that it does, and I don't 11 think that's right. I mean, you can't go back and require 12 people to be licensed for a 10-year or 9 -- 8-year period, 13 whatever it is, because we change the rules now. 14 COMMISSIONER GRIFFIN: I've read through this 15 several times since we drafted it, and I think we may have a 16 way out of that in our preamble and in Section 10, because 17 it says the amendments shall not be retroactively applied to 18 existing O.S.S.F. 19 COMMISSIONER LETZ: Then we ought to take C 20 out. 21 COMMISSIONER GRIFFIN: That's what I'm 22 saying. I think -- I really believe we could take C out, 23 because we've just said, hey, we're not going to go back and 24 make people who are operating a system that was not licensed 25 in the past, but it's working okay, we're not going to make 32 1 them go back and get a license. So, we've covered that in 2 the preamble to Section 10 pretty well, and I really believe 3 we can take out -- 4 MS. SOVIL: There's no Section 10 in the 5 preamble. 6 COMMISSIONER GRIFFIN: Yeah, there is. 7 Section 10, the first paragraph. "To better prevent" -- 8 JUDGE HENNEKE: Which says "Amendments." 9 MS. SOVIL: Oh, okay. Not the -- 10 COMMISSIONER GRIFFIN: Not in the -- 11 JUDGE HENNEKE: Not the preamble. In the 12 preamble to Section 10, Amendments. 13 COMMISSIONER GRIFFIN: Yeah, the preamble to 14 Section 10 says that we'll not do it retroactively, so why 15 can't we just take it out? 16 COMMISSIONER LETZ: C, okay. That's clearer 17 to me. 18 COMMISSIONER GRIFFIN: Take out C. 19 MR. GRABER: Okay. In the back, D, E, and F, 20 again, just as a reminder, this is to be left in so you can 21 justify it based on that greater public health and 22 protection. 23 COMMISSIONER GRIFFIN: Uplink. 24 MR. GRABER: Right. I think that is doable. 25 JUDGE HENNEKE: What do you need as 33 1 justification? 2 MR. GRABER: The best justification as far as 3 lot sizing, number one in your area would be soils. Because 4 of the poor soil conditions. 5 JUDGE HENNEKE: Just a statement that it's 6 because of the soil conditions? 7 MR. GRABER: Because the poor soil 8 conditions, the -- 9 JUDGE HENNEKE: You want the actual soil 10 studies? 11 MR. GRABER: I think we have those. If you 12 just make a generic statement saying because of the -- I 13 think -- 14 COMMISSIONER GRIFFIN: Separate and apart 15 from the rules? You want that statement just as a 16 separate -- 17 MR. GRABER: As a separate amendment, just 18 this is our justification for more stringent requirements, 19 and then it's based on the greater public health and 20 protection. As long as you're basing it on soils, we 21 normally have not had a problem, especially probably in this 22 area. 23 COMMISSIONER GRIFFIN: Okay. 24 COMMISSIONER LETZ: Ken, is it possible to 25 refer, instead of to the Subdivision Rules, so we don't have 34 1 two rules talking about the same thing -- or we just have to 2 always be certain that they're in -- I guess both are saying 3 the exact same thing. Can we not refer to our Subdivision 4 Rules here? 5 MR. GRABER: I think I'd probably reverse 6 that, just to put that the current on-site order, put that 7 in your Subdivision Rules or current 285, the current rules 8 as far as that go. Most all the subdivision ordinances or 9 orders that I've looked at have got the most current 10 version, something like that, and referring to the on-site. 11 'Cause this may be a changing document. There may be more 12 changes. Sometimes we have to come back and tell the 13 entities we need this change. 14 COMMISSIONER GRIFFIN: So we can incorporate 15 those by reference into the -- 16 MR. GRABER: Right. 17 COMMISSIONER GRIFFIN: -- Subdivision Rules? 18 MR. GRABER: And the authority for on-site is 19 here, and not in the Subdivision Rules. And I think that's 20 important to remember. 21 COMMISSIONER LETZ: So, probably, then -- I 22 mean, more people are going to read the Subdivision Rules 23 probably than these rules, so probably just need to -- 24 COMMISSIONER GRIFFIN: Just an opinion. 25 COMMISSIONER LETZ: Or cite these. 35 1 MR. GRABER: Right, current 30 TAC 285 rules. 2 COMMISSIONER LETZ: Okay. 3 MR. GRABER: Okay. We're down to G, and I've 4 got a question mark and explain on that one. You got us on 5 that one. 6 COMMISSIONER GRIFFIN: Oh, Charlie? 7 MR. WIEDENFELD: Yeah? 8 COMMISSIONER GRIFFIN: Can you help on this, 9 on Section -- on Paragraph G? 10 MR. WIEDENFELD: Well -- 11 COMMISSIONER GRIFFIN: We're trying to pick a 12 number. We're not sure that's -- 13 MR. WIEDENFELD: And after I read it, looked 14 at it, you know, I can't -- I don't think we can -- it 15 doesn't make any sense to me really, or doesn't -- it 16 doesn't read correctly. So, the intent here was to try to 17 limit, say, the size of a septic system on a tract of land 18 that has little or no available land left for a septic 19 system. And -- 20 COMMISSIONER GRIFFIN: If it won't fit, you 21 can't put one in there, because you know how big the drain 22 field, for example, has got to be or draft system or 23 whatever, and if you don't have enough land to put that on, 24 then you can't put it on that lot. You can't put that kind 25 of system on that kind of lot. That was the intent, and so 36 1 we picked 20 percent, and maybe we just need to leave that 2 out of there. Is that what you're saying, Charlie? 3 MR. WIEDENFELD: I believe you have -- after 4 talking to Ken, he said, well, I -- again in a draft of 285, 5 there's sufficient provision in there to -- 6 COMMISSIONER GRIFFIN: Okay. Take it out, 7 then. 8 MR. WIEDENFELD: It may be that we can 9 address those situations. 10 MR. GRABER: Okay, we're to H. This is where 11 we are probably going to have to call on our legal, and it's 12 that fourth word there, "sell." No owner shall sell. And, 13 we're not sure whether we have the authority to stop the 14 sale under the authority of 366 or not. And, again, this is 15 more stringent. How is that a greater public health and 16 protection? Those things need to be asked. But under the 17 authority of 366, can we stop the sale of a property? That 18 is something that we have a question mark about. We can 19 refer to our legal. The problem with that is, there's no 20 time frames of when we get an answer back on that. 21 COMMISSIONER LETZ: Have you referred to it 22 your legal? 23 MR. GRABER: We have not, because we know 24 that this is changing. We have looked at it twice, got 25 something in that was a little different. We're waiting to 37 1 get other documents in here. Even justifications sometimes 2 help us, if we can understand where you're going, what 3 you're justifying here based on that greater public health 4 and protection. Sometimes we can and sometimes we can't 5 work with them. So, we try to wait till the ninth hour 6 before we do that. 7 COMMISSIONER GRIFFIN: What if we put a 8 period after O.S.S.F., and struck the rest of that? What 9 that just says is -- is that you can't -- when you sell or 10 transfer, you have to notify the Designated Representative. 11 Doesn't say anything about stopping the sale or anything, 12 but why -- but just that you notify them so that the system 13 can be inspected. 14 MR. GRABER: And it's not uncommon to have an 15 inspection done at the time the property changes ownership. 16 Commonly referred to as real estate inspections. 17 COMMISSIONER GRIFFIN: Right. 18 MR. GRABER: State does not do those, but 19 that is a more stringent requirement. So, if you do that, 20 it does need to be in here. The real question that we had 21 is "sell." What happens if somebody sells this property and 22 they didn't notify anybody? And we have some questions 23 about that under 366. 24 JUDGE HENNEKE: Could we attack it from the 25 point of view that the seller should not be relieved of 38 1 liability for the condition of the O.S.S.F. upon transfer of 2 the property unless they first notify the Designated 3 Representative and -- and have the license transferred to 4 the new owner? Doesn't have anything to do with sale of the 5 property then. We're talking about responsibility for the 6 facility, 'cause that's really the issue. What we're trying 7 to prevent here, obviously, is somebody who knows they have 8 a failing septic system and simply sells it to someone else, 9 who may or may not know the situation, and you end up with 10 the owner of the property having a septic system that's not 11 licensed in their name, and is failing. That's the 12 scenario. 13 COMMISSIONER LETZ: Why don't we just do an 14 inspection -- require an inspection, and then the new owner 15 is on notice if it's good or bad? 16 COMMISSIONER GRIFFIN: That's what would 17 happen, I think, if we put a period after "O.S.S.F." 18 COMMISSIONER LETZ: I mean -- 19 COMMISSIONER GRIFFIN: The property would 20 be -- I mean, the facility would be inspected. 21 JUDGE HENNEKE: Doesn't say inspected, just 22 says a notification. 23 COMMISSIONER LETZ: I mean, I don't mind. I 24 think it's probably a good idea to have them require an 25 inspection, but not have it blocking the sale. I mean -- 39 1 JUDGE HENNEKE: I'm not talking about 2 blocking the sale, I'm talking about strictly the sale going 3 through. But the new owner -- the old owner, the one who 4 sold the system without getting the license transferred, is 5 still responsible for any problems caused by that system or 6 the condition of the system. 7 COMMISSIONER LETZ: I'd like to make the 8 owner -- whoever buys it, make sure they get it inspected. 9 Then they're on notice of the condition of it. I mean, I 10 don't -- 11 JUDGE HENNEKE: That's another way. 12 COMMISSIONER LETZ: I'd just make -- 13 JUDGE HENNEKE: That's another way to go 14 about it. What I don't want to do is to lose the ability to 15 inspect the system at the time of the sale and have someone 16 responsible for it. Otherwise, what we're going to end up 17 with is a situation where you have a property that sold 18 three or four times, nobody's got a license, and then the 19 system fails and we don't know whose responsibility -- 20 COMMISSIONER LETZ: But under that same 21 scenario, you've got a trail as to who knew what and when. 22 I mean, always make whoever's buying it responsible. 23 JUDGE HENNEKE: That's -- 24 COMMISSIONER BALDWIN: How are you going to 25 know when the sale happens? I mean -- 40 1 JUDGE HENNEKE: Well we, can -- we don't 2 know. If the -- if the buyer and the seller -- and there's 3 no financing involved -- decide that they don't want to 4 notify anybody, we won't know. 5 COMMISSIONER BALDWIN: See -- 6 JUDGE HENNEKE: But the problem is -- 7 COMMISSIONER GRIFFIN: It's going to be -- 8 JUDGE HENNEKE: -- the buyer will be 9 responsible or the seller will be responsible. 10 MR. GRABER: Let me present you with a 11 scenario which probably has already happened. An entity, 12 where they've done that and the buyer was not happy with the 13 seller, and they come in and turn everything on in the house 14 and flood that system. Who's responsible for that, and how 15 do you prove it? 16 COMMISSIONER GRIFFIN: Well, the inspection 17 at the time -- 18 JUDGE HENNEKE: You know, that wouldn't have 19 anything to do with -- 20 MR. GRABER: If the system fails, hydraulic 21 failure of that system, the way it's worded, then it would 22 go back to the seller. And they -- it might have been 23 working fine there, but if they intentionally go out -- and 24 that does happen. We've seen it. 25 JUDGE HENNEKE: But if the -- if the seller 41 1 didn't have -- if the seller had it inspected at the time of 2 the sale and had that license transferred at the time of 3 sale, and the buyer then goes in and turns on all the 4 apparatus, then it's the buyer's problem, because he holds 5 the license. 6 MR. GRABER: That's correct. That's correct. 7 JUDGE HENNEKE: But what we're talking about 8 here is trying to come up with a mechanism where there's an 9 ability to look at the system at the time of sale if someone 10 wants to be relieved of liability; i.e., the seller. 11 MR. GRABER: Right. 12 COMMISSIONER LETZ: You mentioned other 13 counties have -- require a license to be -- you know, at 14 time of sale. How do they finds the sales? 15 MR. GRABER: They'll do an inspection. 16 COMMISSIONER LETZ: How do they know 17 property's being sold? 18 MR. GRABER: That's the hard part about a 19 real estate inspection. There's no way, on a lot of things 20 that have been in the ground -- if the system was installed 21 in 1979 or '80, we look at it as a grandfathered system. 22 Number one, if they go out and pump the tanks, check the 23 tanks, and they go out and dig up every part of that drain 24 field and tell us what's there, we still don't know if 25 that's a correct system until we do one other thing, and 42 1 that's that soil evaluation and site evaluation. And, if 2 that's done, then we can go back and say, yes, this system 3 meets standards. What's been done in the past that 4 wasn't -- should not have been done is that they've gone 5 out, done a surface inspection on these things, and a 6 license is given based on a surface inspection. The people 7 move into the house and it fails. The people moving into 8 the house and find out the system didn't meet standards and 9 might have been on top of rock. Might have had a borehole 10 there; there's no way to tell that. It's one reason the 11 State doesn't get involved in real estate transactions, is 12 because there is no good way to do that until you dig up 13 every component of it and almost start like it's a brand-new 14 system. 15 COMMISSIONER BALDWIN: Believe me, Adam and 16 Eve argued this exact same thing. 17 COMMISSIONER GRIFFIN: Yeah, right. 18 COMMISSIONER BALDWIN: And many years ago, I 19 sat at this very table and argued this exact same point, and 20 this was the only way, after months of argument, that we 21 could find a way to hold somebody accountable, is by putting 22 this language right here in it. And he's not really saying 23 it's illegal, he's just saying maybe it's illegal. 24 COMMISSIONER GRIFFIN: Well, we added, 25 though, I think, the thought that's after O.S.S.F. in that 43 1 paragraph, in having this "proceed with the sale" thing. 2 That was something that we did add this time that we can 3 probably leave out. And then I think that's -- I think your 4 statement's exactly right, that that was the language 5 before. Charlie, am I right on that? 6 MR. WIEDENFELD: Yes, sir. That's pretty 7 much -- 8 COMMISSIONER GRIFFIN: Because our previous 9 order did not say anything about this authorization to 10 proceed with the sale. We didn't have that language in 11 there. There were other -- I thought we did that. You 12 inspect it at the time of sale. 13 COMMISSIONER BALDWIN: And we even notified 14 all the lending institutions and asking them to please -- 15 you know, hold it up and tell them -- use that as one of the 16 tools. 17 COMMISSIONER GRIFFIN: Right. 18 COMMISSIONER BALDWIN: I don't know of any 19 other -- there's no other -- there's no way to do it. 20 COMMISSIONER GRIFFIN: See, you can't 21 transfer -- you make application for the license to 22 transfer, but you -- or for the transfer of the license to 23 operate, but you can't do that without inspection. So, 24 that's the hook we had in it before. 25 COMMISSIONER BALDWIN: What if we require the 44 1 buyer, within three -- 90 days of purchase, you must have 2 your system inspected? If -- can we say that, and just 3 hopefully catch some? 4 COMMISSIONER GRIFFIN: Well, you -- the 5 seller is generally represented at sale by a real estate 6 agent or by themselves or whatever, and it would seem that 7 I -- we're back to whether it's the seller or buyer that we 8 want to hold some responsibility to. And I think it's 9 almost got to be the seller. 10 COMMISSIONER BALDWIN: I see. 11 COMMISSIONER GRIFFIN: Then I can hear the 12 argument, too, that says, well, if you -- if you make it the 13 buyer -- if you make it the buyer, it -- it would be better 14 in that the buyer has to have it certified or inspected so 15 that the buyer is comfortable that the system is operating 16 as it is. 17 JUDGE HENNEKE: The problem you're going to 18 get into, though, is the seller tells the buyer, "System's 19 fine. If you want to have it inspected, go ahead, but I'm 20 not paying for it." And he says, "What's the cost of having 21 it dug up?" It's several thousand dollars. The buyers 22 says, "Well, seller said it was okay, so we'll go ahead and 23 close and I'll accept the responsibility," and he finds out 24 that it's not good, it's not working. 25 COMMISSIONER LETZ: That's the buyer's fault. 45 1 I mean, the buyer was on notice and made the financial 2 decision that he was going to gamble that the system worked. 3 JUDGE HENNEKE: But I think -- you know, 4 you're looking at it from a public health and safety -- if 5 you put the onus on the seller, you'll probably get more 6 compliance than you will if you put it on the buyer, because 7 the seller is -- 8 COMMISSIONER GRIFFIN: I saw a hand up a 9 while ago. 10 JUDGE HENNEKE: This is a workshop. The 11 seller is looking to get rid of liability. 12 COMMISSIONER GRIFFIN: Right. 13 JUDGE HENNEKE: Buyer typically wants to know 14 that when the property's purchased, the system is working 15 correctly. 16 COMMISSIONER LETZ: But -- I mean, but in any 17 other -- talking about real estate, the buyer is the person, 18 I mean, that's under the -- "Buyer Beware." That's just 19 the -- 20 JUDGE HENNEKE: That's right. But if you 21 look at the real estate residential transaction now, the 22 seller has to provide a disclosure statement. 23 COMMISSIONER GRIFFIN: Termite inspection. 24 JUDGE HENNEKE: Everything that's wrong with 25 the property. And if they intentionally mislead you on the 46 1 disclosure statement, then they're liable. 2 AUDIENCE: Could we have some understanding 3 of the rules of participation in this workshop. Will we be 4 able -- 5 JUDGE HENNEKE: This workshop is with us and 6 the T.N.R.C.C., so -- 7 AUDIENCE: Will there not be any opportunity 8 for public comment on any of these issues today? 9 JUDGE HENNEKE: Not at this time. 10 AUDIENCE: Okay. 11 JUDGE HENNEKE: We're obviously going to have 12 to redo the rules and bring it up before the public. I 13 mean, I'm -- it's kind of a chicken and egg thing. I'm not 14 adamantly thinking the seller, but I'm thinking if you make 15 it the seller, you're going to get -- more sellers will 16 apply for a license to transfer, to transfer the license so 17 they can get off the liability. The buyers will go in and 18 apply for the license to be transferred. 19 COMMISSIONER BALDWIN: And I'm -- I'm moving 20 over to your side, but I still don't see how you're going to 21 require them to do that. 22 JUDGE HENNEKE: Well, you can't. The only 23 hook you have is that if they don't do it, they're still 24 liable for any damage caused by the system or the -- the 25 fact that the system is not in compliance. 47 1 COMMISSIONER GRIFFIN: But you have to put a 2 time limit on it in that case; one year or -- after the 3 sale, because, obviously, they wouldn't be liable 10 years 4 after the fact, after the sale. 5 JUDGE HENNEKE: I don't know what the 6 applicable statute would be. I'd just leave it in the hands 7 of what the applicable statute of limitations for fraud and 8 misrepresentation -- I think -- what is it, Ilse, two years 9 after discovery? 10 MS. BAILEY: I'm not certain enough to say. I 11 think that may be right, but I'm not certain. 12 JUDGE HENNEKE: Rather than us set a time 13 limit, let it just fall under the time limits in the 14 statutes. 15 COMMISSIONER BALDWIN: Two years is an awful 16 long time for something like that. 17 COMMISSIONER LETZ: I guess I have -- I'm not 18 familiar with real estate contracts. Luckily, I don't deal 19 with those on a regular basis, but if it's in -- if it isn't 20 in the contract that this needs to be checked -- I mean, do 21 you have to disclose a septic system is bad? If it's in the 22 contract that's customarily used, why don't we take this 23 whole provision out? 'Cause we don't need it if it's 24 already in the contract. Only ones you're not going to 25 catch are, you know, the ones that are cash transactions. 48 1 You're probably not going to cash catch those anyway, unless 2 they just want to come, you know, do it properly. I mean, 3 if it's -- I mean, I don't know the law there. If it's -- 4 if the law says you have to disclose if it's not working, if 5 you know it, well, then, why do we need it in here? 6 COMMISSIONER GRIFFIN: Good question. 7 JUDGE HENNEKE: Well, that's -- I mean, 8 that's true, but the law implies, on disclosure, going not 9 simply technically to residential properties; it can apply 10 to commercial. We don't have that many commercial 11 properties with septic systems, other than camps, so -- 12 MR. GRABER: And it may be -- the part in 13 there may be a combination of what everybody's talking to, 14 that some entities have put in there that a surface 15 inspection only was conducted, and at the time of inspection 16 there was no sewage surfacing, a statement like that that 17 gets the inspections done. It's limited liability, as far 18 as that goes. They're not going out there digging over 19 everything. They're catching the obvious, nuisance 20 conditions. The only other way to check -- catch the other 21 is if you're saying that that system meets -- is given a 22 license -- and "given a license" means it met minimum State 23 standards -- by having a surface inspection, you're just 24 simply saying that there were no nuisance conditions at the 25 time of inspection at this site on this date. That's not 49 1 saying that a month from now, that there is not a nuisance 2 condition. 3 COMMISSIONER GRIFFIN: I like the sound of 4 that, because I think it's doable. You make a surface 5 inspection at the time of sale that there was no obvious 6 failure. And I think we can get compliance on that. 7 COMMISSIONER LETZ: I mean, I would agree. I 8 mean, it's -- 9 COMMISSIONER BALDWIN: I like it, too. But 10 what about the old argument of, "Here we live in the Hill 11 Country where there's caverns and caves, and rocks separate 12 and all those things, and it could be failing and we don't 13 even know it." 14 MR. GRABER: You're right. 15 COMMISSIONER GRIFFIN: But we wouldn't know 16 that failure unless we dug up the entire system and started 17 over again. 18 COMMISSIONER BALDWIN: That is correct. 19 COMMISSIONER GRIFFIN: And that, I think, is 20 cost prohibitive. I don't think that's something we can 21 impose. 22 MR. GRABER: And I think the key is to 23 give -- giving a license versus doing an inspection. And if 24 you're giving a license, you're saying there are no caverns 25 there, this system is getting treatment, that two feet under 50 1 the bottom of that trench we know that there is adequate 2 soil for the treatment. By doing the surface inspection, 3 you're saying that at the time of this inspection, there was 4 no nuisance conditions. That is, maybe, not giving a 5 license to it, unless there was some history there to go 6 back and show what was installed and soil conditions. Then 7 you're only looking at the ones prior to 1980 that could be 8 a problem. 9 JUDGE HENNEKE: What we can do is do 10 something like, in order for the license to be transferred, 11 there must be a physical grounds inspection of the property 12 prior to the transfer, and if that inspection doesn't reveal 13 any apparent problems, the license is transferred. We're 14 not granting a new license, not saying anything about the 15 conditions. All we're saying is that the license is 16 transferred, and then stop it there. And, if they don't do 17 the inspection, the license isn't transferred. Then the 18 liability issue gets sorted out between the two of them, if 19 and when it arises. But, without a transfer of the license, 20 the seller will remain liable, but the buyer could also 21 become liable if he has a system that was in perfectly good 22 working order, and at some time later it fails and he needs 23 to take action to correct it. But he may blame the seller 24 for that, but then that's between the two of them, and we're 25 not involved. 51 1 COMMISSIONER GRIFFIN: I think that would 2 work. 3 JUDGE HENNEKE: Okay. 4 COMMISSIONER GRIFFIN: So, we'll try to draft 5 some language that captures that and -- and run it by you 6 and see what you think. 7 MR. GRABER: Okay. 8 COMMISSIONER BALDWIN: So, we would -- would 9 definitely take out the word "sell"? 10 JUDGE HENNEKE: Yes. It will become a 11 provision regarding transfer of the license. 12 COMMISSIONER BALDWIN: Yeah, I like that. 13 And surface inspection only. 14 JUDGE HENNEKE: Right. 15 COMMISSIONER LETZ: And, over time -- I mean, 16 I think the whole intent over time is this whole -- they 17 will -- the bad ones will just -- 18 COMMISSIONER GRIFFIN: In the end, have 19 licensed systems. 20 COMMISSIONER LETZ: Yeah, get all licensed 21 systems. 22 JUDGE HENNEKE: Okay. 23 MR. WIEDENFELD: Don't forget about the 24 issue, then, of inspecting the unlicensed systems, and 25 what -- 52 1 COMMISSIONER GRIFFIN: Well, I think the 2 nuisance inspection or the surface inspection that we talk 3 about would apply to all property transfers that have an 4 O.S.S.F. on them, would it not? 5 MR. GRABER: Right. 6 COMMISSIONER LETZ: Yeah, correct. 7 COMMISSIONER GRIFFIN: It wouldn't 8 necessarily be just the licensed systems, 'cause all you're 9 going to -- all we would be doing is saying at the time of 10 sale, there was no obvious failure of the septic system on 11 this property. That's what we're saying, and that's all. 12 MR. WIEDENFELD: And the requirement to have 13 that system licensed, then, would -- is not going to be in 14 this county order, then? 15 COMMISSIONER GRIFFIN: It would not -- it 16 would not require licensing if it wasn't licensed before. 17 Now, if it's licensed, then you're going to have to transfer 18 the license, and so you would say there's no sign of 19 failure, and therefore we'll grant the transfer of the 20 license. If it's not licensed and it's still working, 21 apparently, then -- 22 JUDGE HENNEKE: If it's a system that should 23 have been licensed and is a bootleg system, doesn't fall in 24 any exemptions, then what can we do? 25 COMMISSIONER GRIFFIN: If we can prove that, 53 1 we've probably got a case to make them license the system, I 2 would think. But, that's in 285, 366; we don't have to add 3 that here. 4 JUDGE HENNEKE: Okay. 5 COMMISSIONER LETZ: And this will find any 6 systems that are obviously failing, and then they'll have to 7 fix those systems. 8 JUDGE HENNEKE: So, the provision will go 9 something like, "Prior to the transfer or sale of any 10 ownership of any property having an O.S.S.F. facility, such 11 property shall undergo a surface inspection only." And -- 12 COMMISSIONER GRIFFIN: By the Designated 13 Representative. 14 JUDGE HENNEKE: By the Designated 15 Representative. And if there are no apparent problems -- 16 COMMISSIONER GRIFFIN: It's a licensed -- 17 JUDGE HENNEKE: Any licensed system. If 18 there's a licensed system on the property, the property -- 19 the license shall be transferred to the buyer. 20 COMMISSIONER GRIFFIN: Right. That's it 21 basically -- 22 MR. WIEDENFELD: But the current order goes 23 on to say that if it's unlicensed, it must be licensed. 24 JUDGE HENNEKE: But I think we're saying 25 that's covered elsewhere; that we don't need to repeat that. 54 1 COMMISSIONER GRIFFIN: If it's not failing -- 2 if it's not obviously failing, it's not a licensed system; 3 that is, it was prior to -- the system was installed prior 4 to 19 -- 5 COMMISSIONER LETZ: '81. 6 COMMISSIONER GRIFFIN: -- 81, for example, 7 we're not going to require -- just because of the sale, we 8 wouldn't require that system to be -- to be licensed. 9 MR. WIEDENFELD: That's a major deviation 10 from existing practice, just in the county order. 11 COMMISSIONER GRIFFIN: We did that -- do we 12 do that now? 13 MS. SOVIL: Yes. 14 MR. WIEDENFELD: Yes. Every system that's 15 unlicensed at time of sale is licensed. 16 COMMISSIONER GRIFFIN: So, you've got to dig 17 it up, then. 18 MR. WIEDENFELD: Most people can see that 19 it's unlicensed; it's going to have to be totally, you know, 20 brought to current standards, and there's no sense 21 uncovering anything at the time of sale. 22 COMMISSIONER LETZ: But that -- Charlie, 23 you're assuming that every old system is bad, and that's not 24 true. 25 MR. WIEDENFELD: No. 55 1 COMMISSIONER LETZ: Some systems are good. 2 MR. WIEDENFELD: But most of the time, the 3 buyer will assume that to be the case. No, they can 4 demonstrate to us that it will still meet current standards, 5 and we will license it. But -- 6 AUDIENCE: Buts there's very few that meet 7 current standards. That's the point. In order to give an 8 unlicensed system a license, it has to meet today's 9 standards, and 99 percent of the systems that are unlicensed 10 will not meet today's standards. 11 JUDGE HENNEKE: Well, I think we can address 12 that, but with the -- a system that's not required to have a 13 license by virtue of an exemption, it will not be required 14 to have a license, unless it's shown to be failing. But a 15 system that should have been licensed under the rules in 16 place at the time will require -- 17 COMMISSIONER GRIFFIN: Licensing, because 18 we -- because we can go after them. We've got grounds to do 19 that in 285, 366. 20 JUDGE HENNEKE: Well, let's take a look. 21 We'll take a shot at that and see what we come up with. 22 MR. GRABER: We're at J, and on this 23 particular -- 24 MR. HABERSON: What about I? 25 (Discussion off the record.) 56 1 MR. GRABER: In I, we have -- and this is 2 probably going to go back to -- we can address the same 3 thing as the definition of site evaluation, which is the 4 last definition under K. Under this particular issue, we 5 have R.S.'s, P.E.'s having training through a T.N.R.C.C 6 -approved site evaluation course. Actually, I only 7 addresses subdivisions. If you look at the definition of 8 site evaluation, this is going to be everybody, I think. 9 And I think what the intent here is to have people -- a 10 little background here. 11 The 285 rules said that we registered site 12 evaluators. The A.G. came back and said, under the 366 13 rules, that we -- by law, we did not have the authority to 14 register site evaluators, so we have not required that the 15 past three years. What a lot of entities have put in to 16 substitute is -- is that the individuals who are doing the 17 site evaluation attend, pass a site evaluation course 18 approved by T.N.R.C.C., which that way we're not saying they 19 have to be a registered site evaluator; we're just saying 20 they have to attend the course that's been approved by 21 T.N.R.C.C. So, two issues; is the way that it's worded as 22 far as site evaluation, and one is actually addressing 23 subdivisions only, and the other is addressing all site 24 evaluations, which you might want to take a look at all of 25 those. And -- and I think the intent is just to have people 57 1 doing site evaluations pass and approve, so that -- 2 MR. WIEDENFELD: T.N.R.C.C. 3 COMMISSIONER GRIFFIN: Is there a specific 4 course that you would cite here, or just a -- just a site -- 5 site evaluator who has attended an approved T.N.R.C.C. 6 course? 7 MR. GRABER: It would be an individual that 8 has attended and passed a site evaluation course that's been 9 approved by T.N.R.C.C. Presently, to my knowledge, there's 10 only one, and that is done by Clark Benson, who is a P.E. I 11 think he was here a couple weeks ago. You might look at 12 those, and they can be combined into -- 13 COMMISSIONER GRIFFIN: You're saying make it 14 apply to everybody, not just to platted subdivisions? 15 MR. GRABER: Right, not just subdivisions. 16 And site evaluation is actually addressing everybody doing 17 those. I think the intent is to combine all of those 18 together to have the people doing those pass -- attend that 19 course, pass the course, and make sure it is approved by 20 T.N.R.C.C. 21 (Discussion off the record.) 22 MR. GRABER: Okay. We're at J, and I've just 23 asked you to explain this one. I briefly visited with 24 Charlie on this one. I think we've come up with one 25 scenario. Just making sure we haven't missed anything. 58 1 COMMISSIONER GRIFFIN: And the point there 2 being that our intent was, if there was an O.S.S.F., you 3 know, we're going to have a platted subdivision go in, that 4 that system would have to be licensed before the final plat 5 approval. 6 MR. GRABER: Okay. 7 COMMISSIONER GRIFFIN: Is that -- 8 MR. WIEDENFELD: Right. I guess what we 9 found in the past on the tracts that had an existing 10 facility, they would put a -- the new property line right 11 down the middle of their drain field or something to that 12 effect, and thus we just said let's -- you know, let's just 13 put a licensed system in, and then we know whether the drain 14 field meets proper setbacks to property lines and that kind 15 of stuff. 16 COMMISSIONER GRIFFIN: That's for platting 17 subdivisions, and we didn't say that here. Is that what 18 we -- or if it really would require any subdividing of 19 property, though, wouldn't it -- not just a platted 20 subdivision, but you can still run a property line right 21 down the middle of the drain field. If you were just -- if 22 you were busting property in two by metes and bounds, you 23 could still end up with splitting the O.S.S.F., couldn't 24 you? So, we probably -- we would want that to apply to any 25 division of property. If there is an existing O.S.S.F. on 59 1 the property before it's divided, that needs to be -- we 2 need to know where that is before -- by licensing before we 3 split the property up. Is that what the intent of this is? 4 COMMISSIONER LETZ: That's getting pretty -- 5 that's -- I'd rather have it in a subdivision, because when 6 you're doing -- if you go this route, if you just have, say, 7 1,000 acres, you sell 500 acres, it's -- 8 COMMISSIONER GRIFFIN: Oh, you're right. 9 Yeah. 10 MR. GRABER: That's the question I ask. 11 COMMISSIONER LETZ: So, I -- to me, I'd leave 12 the final plat in any subdivision, any tract, subject to our 13 Subdivision Rules and Regulations, because that's where you 14 tend to get the smaller tracts. 15 COMMISSIONER GRIFFIN: Okay. 16 COMMISSIONER LETZ: And I think there is a -- 17 COMMISSIONER GRIFFIN: That's a good point. 18 Okay. 19 MR. GRABER: On definitions, authorized 20 agent, designated representative, permit to construct, 21 license to operate, O.S.S.F. I think owner is in there, 22 too. They're all given. Those are in 285 and 366, which is 23 referenced, so those would not need to be here. The only 24 thing is planning materials. 25 JUDGE HENNEKE: You'd have an objection 60 1 there, because not a lot of our people are going to go to 2 the referenced T.N.R.C.C. regs and look up the definition. 3 COMMISSIONER GRIFFIN: The reason we added it 4 and we tried to take -- and I think we did pretty well. We 5 took verbatim definitions out of the -- the 285, and we 6 repeated those here, just for those terms that are used in 7 our document, so that anybody who had a question about what 8 is an authorized agent, for example, or what is a designated 9 representative, those are lifted verbatim. With the 10 exception of designated representative; we added Kerr County 11 there in several cases, as a matter of fact. But, we've 12 lifted the words right out of the 285 definition, and we 13 wanted it there to make this document whole. And, in fact, 14 we took some out that we had in the earlier draft because 15 the terms weren't used any more, so we scrubbed this down 16 and we just -- we thought that this was prudent, given that 17 anyone who picked up this document would know what the 18 definitions are of the terms that are used in the document. 19 Just this document, stand-alone. Is there any problem with 20 having it in there? 21 MR. GRABER: I understand where you're coming 22 from, but I would hope that if they picked up this document, 23 that along with that would be the 285 rules, because what 24 this document simply does is gives the entity the authority, 25 as well as list any more stringent requirements. That's the 61 1 reason we dropped it from a booklet that was 30 pages to a 2 simple 5 pages. And that, along with those, if they're 3 looking at what these things mean, they need to understand 4 what the rules are, as well. And they -- the rules are 5 referenced, 366 is referenced. And I understand where 6 you're coming from. 7 JUDGE HENNEKE: The question becomes -- let's 8 ask it again. Are you going to approve them if we leave the 9 definitions in? 10 MR. GRABER: I really don't think that that's 11 really a real big issue, as far as that goes. It is under 12 Section 10, which, as I say, is more stringent requirements. 13 If I were to pick that document up and come to you and say, 14 "How is this more stringent," it's listed in Section 10. 15 COMMISSIONER GRIFFIN: What if we added a 16 proviso, a little statement there that said -- 17 JUDGE HENNEKE: We're also trying to create a 18 document our people can use. 19 MR. GRABER: I understand. 20 JUDGE HENNEKE: This document is looked at by 21 other than certified, registered engineers and sanitarians, 22 so the question becomes, if we leave the definitions in, are 23 we going to get these bounced back? 24 COMMISSIONER LETZ: Can we put definitions 25 somewhere else than Section 10? 62 1 JUDGE HENNEKE: No, because everything else 2 is proscribed. 3 COMMISSIONER GRIFFIN: Right, you can't. 4 JUDGE HENNEKE: We really get in trouble -- 5 COMMISSIONER GRIFFIN: Why don't we -- what 6 if we put a -- a statement in here in the definitions that 7 said these definitions are lifted from 285? 'Cause I think 8 that's where they are. And are provided for clarity of the 9 document, which indicates we're not saying it's more 10 stringent, but we've just included them here in Section 10 11 for clarity. 12 MR. GRABER: We'll look at that. 13 COMMISSIONER GRIFFIN: Okay. 14 MR. GRABER: And take that under 15 consideration. I'm also looking at the other definitions to 16 see how that's set up that you would do that, as far as that 17 goes. 18 COMMISSIONER GRIFFIN: Let me tell you how I 19 did those definitions. I went through and did a word search 20 on anything that had a 285 definition, and then we extracted 21 that out of 285, did the word search in 285, and read 22 through the document when it was drafted -- finished 23 drafting it and said, okay, what terms would somebody 24 reading through here get stuck on? So, what the heck is an 25 authorized agent? Okay. Let's take that out of 285 and 63 1 include it here so that they'll know they can flip back to 2 definitions. Oh, I see what that authorized agent is; 3 that's -- and so on. But we can add the statement that 4 these are repeated from 285 for clarity purposes and are not 5 necessarily -- not necessarily at all more restrictive. 6 MR. GRABER: I understand. 7 COMMISSIONER LETZ: The definitions on the 8 first page have "different" written next to them, on Page 5. 9 You don't -- are those different? 10 MR. GRABER: Well, I was just going down as 11 far as the planning materials. Number 4 is different. 12 "Acknowledgement of owner's responsibility" is pretty 13 ambiguous. I don't know how to demonstrate that, but I put 14 a question mark by it. And -- 15 COMMISSIONER GRIFFIN: It is in -- 16 MR. GRABER: I don't think we need it. 17 COMMISSIONER GRIFFIN: 'Cause we've said 18 that. I think we can take that out. 19 COMMISSIONER LETZ: The whole definitions, or 20 just that one? 21 COMMISSIONER GRIFFIN: Just that 22 "acknowledgment of owner's responsibility." It doesn't 23 really add anything. We've -- 'cause we've covered that the 24 other ways, if we can do what we've said we're going to do. 25 MR. GRABER: Okay. And for site evaluation, 64 1 I think that that is covered, as well. And I think it will 2 be covered as well, so it leaves us down to "sale." And I 3 do not think "sale" is either in 366 or 285. In your word 4 search, did you find "sale"? 5 COMMISSIONER GRIFFIN: I don't remember. I 6 don't think we did. I think that is an exception. 7 MR. GRABER: That would be the only thing 8 that I would request, is that -- 9 COMMISSIONER GRIFFIN: We'll look at that 10 one. 11 MR. GRABER: -- if you do "sale," is to say 12 something -- whatever you want to put in there, as far as 13 that goes, to distinguish that. 14 COMMISSIONER GRIFFIN: Trying to get 15 around -- what we were trying to address there is that it's 16 a transfer or exchange of ownership, which may not 17 necessarily be a sale. It may -- you know, but we're -- for 18 purposes of the definition, we're saying if you transfer 19 ownership -- if I give you property, if it has the same 20 effect as -- as though it were a sale. 21 COMMISSIONER LETZ: How many times is the 22 word "sale" used in our document? Not often, is it? 23 COMMISSIONER GRIFFIN: Not too often. I 24 think we can probably end up taking this out, but let me 25 look at it. And I understand your point, and we can look at 65 1 that when we do that. 2 (Discussion off the record.) 3 MR. GRABER: And just as a reiteration, the 4 things that are more stringent, be sure to justify. If you 5 have a problem, I'll leave our card. Call, and we'll try to 6 give you some direction on which way, maybe, to go on that 7 particular issue. Warren, have you got anything? 8 MR. HABERSON: No. 9 MR. GRABER: And the four documents -- again, 10 just a reminder. They are listed in 285-10 of the rules. 11 Certified copy of the minutes, certified copy of the 12 Order -- 13 COMMISSIONER GRIFFIN: Where are those 14 listed, by the way? 15 MR. GRABER: I'll go from -- 285-10. It will 16 probably refer you to the amendments; you're actually 17 amending this order, but it's actually a replacement of the 18 whole thing. 19 COMMISSIONER GRIFFIN: Okay. 20 MR. GRABER: And so what we're looking for is 21 a public notice, just a copy of that. Publisher's 22 affidavit, a certified copy of the minutes, and a certified 23 copy of the Order. The reason we put certified copy of the 24 minutes in there instead of approved, certified copy, a lot 25 of entities only meet once a month, so if the clerk is 66 1 around, they can certify as soon as it's through. We don't 2 have to wait for y'all to convene and approve the next 3 minutes to get that. 4 COMMISSIONER GRIFFIN: Okay. 5 JUDGE HENNEKE: What is the minutes of? The 6 public hearing? Or the meeting where we adopted the Order? 7 Or the meeting where we approved the Order? Or the meetings 8 where we discussed the Order? Or -- 9 MR. GRABER: The meeting in which you adopted 10 the Order, the action taken. 11 JUDGE HENNEKE: Adopted the Order. You don't 12 need the public hearing? 13 MR. GRABER: No. 14 JUDGE HENNEKE: You want all the minutes, or 15 just the section relating to -- 16 MR. GRABER: Just the section relating to the 17 adoption of On-Site Sewage Facility Order. 18 MR. HABERSON: If I may, I'd just like to add 19 a couple of points. Again, we appreciate you allowing us to 20 come and share this time with you to work through some of 21 these things, so you understand where we are and we 22 understand where you are. I think it makes the whole 23 process work better, timeline wise. And, if we get all 24 those documents and the justification for your more 25 stringent standards and we think everything is okay, we 67 1 don't have a problem with it, we can actually process this 2 ourselves in our office within a couple of days. We'll then 3 take it to our Chief Clerk's office. It has to be posted 4 for three days -- three days, and then it will be signed by 5 the representative of the Executive Director. So, the whole 6 process can be done in less than two weeks from our end of 7 it, so it's just -- you know, once we get a document that we 8 have -- we think is good, it doesn't take long before you 9 get a signed copy back. 10 COMMISSIONER GRIFFIN: I appreciate your 11 help. 12 MR. GRABER: Thank you very much. 13 COMMISSIONER GRIFFIN: Very good. 14 JUDGE HENNEKE: Anything else? If -- 15 COMMISSIONER BALDWIN: I hope that we -- Ken, 16 are we going to be able to hear from some of the public? 17 JUDGE HENNEKE: What's your pleasure? This 18 is a workshop. 19 COMMISSIONER GRIFFIN: We certainly want to 20 hear from the public at the public hearing on the next 21 draft, that's for sure. 22 COMMISSIONER LETZ: If anyone wants to say 23 anything, I don't have a problem. 24 JUDGE HENNEKE: Anyone have anything they'd 25 like to offer at this time? Mr. Syfan? 68 1 MR. BERNARD SYFAN: I think you're headed in 2 the right direction by cutting a lot of this stuff. My 3 name's Bernard Syfan. I'm a retired civil engineer, and 4 there are just a couple of little things that I'd like to 5 comment on. It's a pretty big thing you're undertaking. 6 The State standards are really good, and they probably 7 should be adopted just as they are. The design of these 8 units is not rocket science; it's pretty simple, and I think 9 that you have possibly fallen prey to some designer/ 10 installers who have a pretty vile conflict of interest. And 11 that conflict of interest ought to be considered when you're 12 listening to some of these people. 13 They -- there is really no reason, I don't 14 believe, why you couldn't get some Kerr County-approved 15 standards that your very qualified inspector could inspect 16 the site if it's going to have a system on it, and apply a 17 design that is -- just issue it. There's no reason to have 18 somebody in the design and construct business building 19 themselves an income. We don't owe that to them. We need 20 to protect the public, and not those people who are in that 21 design construction business. 22 I am very, very sure in my own mind that the 23 aerobic systems that are being approved are going to 24 backfire on us, and in the process of backfiring on us, and 25 over time there's going to be a big problem. And, I -- all 69 1 it is, is ability an opportunity for a design/construct 2 artist, and it is not doing the public any good. I think 3 that, as I read the things right now, your -- if you built a 4 hunter's shack in the middle of 1,000 acres, you need to 5 have possibly a system that would have to be inspected every 6 month, and it -- you know, the size of the site really does 7 make a difference. There -- there is a difference in going 8 onto a 2-acre site or a half-acre site and putting in an 9 on-site system, and going out on 10,000 acres and doing an 10 on-site system. It's different. The -- the cattle roam, 11 and they don't even have a system. The deer roam, and they 12 don't even have a system. 13 Come on, let's be real. Let's just be real. 14 These are not really, really critical in some cases. People 15 are going to do their best to keep their own sites from 16 being polluted. We don't need a yankee attitude; this is 17 Texas, and we're a little different. We're a little 18 different. And I -- I prevail on you, as you review this, 19 to really review it. And, hey, State's done a good job. 20 Have a little faith, and let's put some limits on this. 21 This is to the point of ridiculous. Thank you. 22 JUDGE HENNEKE: Thank you. Anyone else? 23 Yes, sir? 24 MR. WHEELER: I basically have a question. 25 JUDGE HENNEKE: Come up to the podium, 70 1 please. Identify yourself. 2 MR. WHEELER: My name's Jerry Wheeler, and my 3 question is, if we use the State system, as designed and 4 prescribed, is the environment protected? Are we going 5 beyond and above for the sake of going above and beyond, 6 when the State system does it? And that's actually a 7 question for you. If we use the State system, is our 8 environment protected? 9 MR. GRABER: If you follow 285 rules, we feel 10 confident the environment's protected. 11 MR. WHEELER: Okay. Thank you. 12 MR. BERNARD SYFAN: Then why more? Why? 13 JUDGE HENNEKE: Mr. Thompson? 14 MR. THOMPSON: My name is Richard Thompson. 15 I'm a resident of Kerr County, and I would just like to say 16 that I fully support Mr. Syfan's comments, and also the 17 comments made by Mr. Marty Brewer at one of your previous 18 workshops, which called for using common sense instead of 19 rules that benefit a few. Thank you, sir. 20 JUDGE HENNEKE: Thank you. Any other 21 comments? Yes? 22 MR. RAYBURN: I'm Judy Rayburn with 23 Buffington Realty in Kerr County. I want to ask a question 24 about the comment that was made, Judge Henneke, on the 25 seller disclosure, and I just want to make a point. Nowhere 71 1 on the seller disclosure does it reference anything about a 2 system that's licensed or unlicensed. It just simply asks 3 the seller, does he have a septic system? And so, to me, 4 that's loose as a goose, as far as doing anything about when 5 we actually transfer a license on a sale of a piece of 6 property. I know in some of the real estate companies here, 7 there is some documentation that is put into the contract 8 that says, at the time that we do sell or transfer 9 ownership, that we will ask the, quote, "seller" to transfer 10 a licensed septic per the guidelines at the time. And 11 that's negotiable with -- between the buyer and seller. 12 Back to what you all talked about earlier, I 13 think that it just needs to be stressed that there are many 14 buyers that are willing to take the responsibility of the 15 septic system, but the way it's set up now in the 16 application, that actually has to be signed off by the 17 seller on Page 3 for the responsibility. Even though the 18 buyer's going to take the financial responsibility, the 19 seller must sign off on that, and some of them are balking 20 on that. They inherit a property, they know nothing about 21 it. And I'm just -- you know, there's -- there is pros and 22 cons to both, and I just think we need to address that, 23 maybe, when you go back to the drawing board. 24 JUDGE HENNEKE: Okay, thank you. Anyone 25 else? 72 1 MR. TOM SYFAN: I'm going to stand right 2 here, if that's all right with you. I think I'm loud enough 3 where y'all hear me. I would like to know why -- why or why 4 not we don't have another public hearing on this subject. 5 JUDGE HENNEKE: Well -- 6 MR. GRABER: I think it's appropriate. 7 JUDGE HENNEKE: We will have another public 8 hearing, because we've got to go back and readopt the order, 9 and in order -- before the Order can become effective, we 10 will have to have another public hearing. So, the answer 11 is, there will be another public hearing on the subject. 12 COMMISSIONER BALDWIN: I have a comment to 13 make. I think the gentleman back there with the earring in 14 his ear made the most profound question of all. Does the 15 State's rules protect our environment? And the answer is 16 yes, and so I think -- in my mind, that opens up -- that 17 opens up my mind to a new way of thinking. I can tell you 18 that right now. That was a very good question. Thank you. 19 That's a bottom-line question. Appreciate that. Earring 20 and all. 21 JUDGE HENNEKE: Anything else? If there are 22 no other comments, we stand adjourned. Thank you all for 23 coming. 24 (Workshop concluded at 3:00 p.m.) 25 - - - - - - - - - -