0113032.15 COMMISSIONERS COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Dave Nicholson MEETING DATE: January 13, 2003 SUBJECT: (PLEASE BE SPECIFIC) OFFICE: Commissioner. Precinct 4 TIME PREFERRED: Consider and discuss and take appropriate action to amend the On-Site-Septic-Facility rules to abolish Section 10 (Real Estate Transfer Inspection) and set a date for a public hearing. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Commissioner Precinct #4 Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. 3rd January 2003 Judge Tinley, Commissioners Baldwin, Williams and Letz: Re: Section 10 OSSF Rules The rationale for the Real Estate Transfer Inspection has been the subject of many discussions in The Court and in numerous public forums, so you are familiaz with the azguments and I will not attempt to burden you by reciting that history. These are the good and valid reasons for repealing the rule: It is grossly ineffective in achieving its purpose of fording failing septic systems that are polluting our water. The concept that significant numbers of failing systems can be identified by inspecting properties whose ownership is being transferred is badly flawed. Properties that aze sold tend to be sold again over a period oftime and most other properties remain in the same ownership. What this means is that the transfer inspections will, over a period of years, cause the inspection of the same properties over and over again and miss the vast majority of properties that have septic systems which may be failing. A reasonable guess is that over twenty yeazs the real estate transfer rule might result in the inspection of fewer than ten percent of the septic systems in Kerr County. If the objective of the rule is to discover and correct failing systems, this is a very ineffective way to accomplish that goal. 2. The real estate transfer inspection rule is an unnecessary intrusion on property rights. I believe that it is appropriate to tread on traditional property rights when a "greater good is served", but that is not the case in the application of this rule: it intrudes, but it does little to protect the greater good of preserving our water resources. In practice it hinders real estate transactions, drives up transfer costs and damages the properties under contract. 3. The County's designated agent -the UGRA - is incapable of administering this rule in a fair and equitable way. The rule is used by the UGRA to harass and intimidate property buyers and sellers and realtors. The County and other entities chazged with preserving natural resources must find ways to identify failing septic systems and to compel their owners to comply with bona fide regulations. The real estate transfer inspection rule is simply an ineffective way to discharge this responsibility. I say we need to abolish this rule and be serious about fording and implementing effective methods to identify and correct inadequate septic systems. Dave Nicholson ORDER NO.'c'74B8 AP'P'ROVAL RMENDING COURT ORDER NO.c700Q~ ON-SITC SEWRGE FACILITIES On this the c5th day of March X001 Commissioner Griffin, seconded by unanimously approved 6y a vote of Numbers 67080 and X7079 to delete of the Ef the DR can determine that the system meets ap curtent state requirements, a license will be issued and transferred. Pape t of 2 b) Based on the inspection, ff the DR determines that the system does not meet all current state requirements but is not creating a nuisance or a hazard to health, the applicant may continue to operate the system. No license will be issued or transferred. NOTE: IF AT ANY TIME A SYSTEM, LICENSED OR UNLICENSED, IS FOUND TO BE CREATING A NUISANCE OR A HAZARD TO PUBLIC HEALTH, STATE LAW REQUIRES THE DR, ON KERR COUNTY'S BEHALF, 70 TAKE STEPS TO PROHIBIT OPERATION OF THE SYSTEM UNTIL REPAIRS OR REPLACEMENT ARE ACCOMPLISHED. D. GENERAL INSPECTION PROCEDURES This section necessarity provides only general information on the inspection process. Detailed insWctions will be provided to the applicant by the DR in arx;ordance with paragraph C. 3) above. In every case the DR will attempt to use fhe minimum invasiveness inspection techniques required to insure compliance with state law and the Kert County OSSF order. However, the precise requirements will always depend on many variables incuding the age of the system, its valid documentation, and its potential threat to public health and water quality. On the date of the site inspection applicant must be prepared to identify all components of the OSSF system incuding the tank(s) and the disposal system including drain fields, clean outs, spray heads, etc. Professionalty certified and sealed 'as-built drawings' may satisfy this requirement. In fhe absence of such certified and sealed "as-built drawings," the applicant must be prepared to visually bcate the tanks and all elements of the disposal system. In most cases where an inspection is determined to be necessary by the DR, the following steps will be required, at a minimum, to be performed by the applicant ,,.~ A) Expose the systems treatment tank(s) access ports. This may occur at any time prior to the inspection date to accommodate the applicant's desires or schedule. B) Expose the exterior plumbing and inflow and outflow from the tank for visual inspection and evaluation. C) Expose interior of the tank(s) for integrity determination by having the tank(s) chamber(s) pumped by a licensed waste hauler in the presence of the OR. D) Expose the beginning and distal ends of any drain field lines. Following the inspection by the DR, the DR will determine the compliance or noncompliance status of the system and communicate the infortmation to the applicant within trve business days. in cases of non- compliance the DR wAl also communicafe the repairs or replacements required for the system TA be returned to operation. APPLICANTS APPFIIL RIGHTS An applicant has the right to appeal the determinations or deasions of the DR to the Kerr County Commissioners Court in accordance with Section 13 of the Kerr County OSSF order. :~ Fred Henneke, Kerr County Ju !J D e Page 2 or 2 COUNTY OF KERB § STATE OF TEXAS § AFFIDAVIT Before me, the undersigned authority, personally appeared who, being my me duly sworn, deposed as follows: My name is Jannett Pieper, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: I am the custodian of the records of the County Clerks Office for the County of Kerr, Texas. Attached hereto aze &ve pages of records known as "ORDER ADOPTING RULES OF KERB COUNTY, TEXAS FOR ON-STTE SEWAGE FACILITIES." The records are kept by me as County Clerk, County of Kerr, in the regular course of business with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was make at or neaz the time or reasonably soon thereafter. The record attached hereto is the original or exact duplicate oft ;official record.' Jannett Pieper BEFORE ME, the undersigned authority, a Notary Public in and for Kerr County, Texas, on this day personally appeared Jannett Pieper, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledge to me that she executed the same for the purpose and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this /A~ day of July 1. otary Pubhq State of Texas "n'oa~es ~arwayo~, foal ~o+ceon ORDER NO.2 ~ 0 ~ 9 ORDER ADOPTING RULES OF KERR COUNTY, TEXAS FOR ON-SITE SEWAGE FACILITIES PREAMBLE WHEREAS, the Texas Natural Resource Conservation Commission has established Design Criteria for on-site sewage facilities to provide the citizens of this State with adequate public health protection and a minimum of environmental pollution; and WHEREAS, the Legislature has enacted legislation, codified as Texas Health and Safety Code, Chapter 366, which authorizes a local government to regulate the use of on-site sewage disposal facilities in its jurisdiction in order to abate or prevent pollution, or injury to public health arising out of the use of on-site sewage facilities; and WHEREAS, due notice was given of a meeting and public hearing to determine whether the Commissioners Court of Kerr County, Texas should enact an order controlling or prohibiting the installation or use of on-site sewage facilities in the County of Kerr, Texas; and WHEREAS, said meeting and public hearing were held in accordance with the notice thereof, and the evidence and arguments there presented were considered by the Commissioner Court of Kerr County, Texas; and WHEREAS, the Commissioners Court of Kerr County, Texas finds that the use of on-site sewage facilities in Kerr County, Texas is causing or may cause pollution, and is injuring or may injure the public health; and ~. WHEREAS, the Commissioners Court of Kerr County, Texas has considered the matter and deems it appropriate to enact an Order adopting Rules regulating on-site sewage facilities to abate or prevent pollution, or injury to public health in Kerr County, Texas. NOW, THEREFORE, BE IT ORDERED BY THE COMMISSIONERS COURT OF KERR COUNTY, TEXAS: SECTION 1. THAT the matters and facts recited in the preamble hereof are hereby found and determined to be true and correct; SECTION 2. THAT the use of on-site sewage facilities in Kerr County, Texas is causing or may cause pollution or is injuring or may injure the public health; SECTION 3. THAT an Order for Kerr County, Texas be adopted entitled "On-Site Sewage Disposal," which shall read as follows: AN ORDER ENTITLED ON-SITE SEWAGE DISPOSAL SECTION 4. CONFLICTS. All Orders or parts of the Orders of Kerr County, Texas not consistent with or in conflict with the provisions of this Order are hereby repealed. SECTION 5. ADOPTING CHAPTER 366. The County of Kerr Texas clearly understands the technical criteria, legal requirements, and administrative procedures and duties associated with regulating on-site sewage facilities, does adopt and will fully enforce Chapter 366 of the .-~ Texas Health and Safety Code. 2 SECTION 6. AREA OF JURISDICTION. The Rules shall apply to all the area lying in Kerr County, Texas, except for the area regulated under an existing Rule and the areas within incorporated cities. SECTION 7. ON-SITE SEWAGE FACILITY RULES. Any structure discharging sewage into an on-site sewage facility within the jurisdictional area of Kerr County, Texas must comply with the Rules adopted in Section 8 of this Order. SECTION 8. ON-SITE SEWAGE FACILITY RULES ADOPTED. The Rules ("Design Criteria For On-site Sewage Facilities" and Administrative Rules 30 TAC 285.1- 285.91, attached hereto, promulgated by the Texas Natural Resource Conservation Commission for on-site sewage systems are hereby adopted, and all officials and employees of Kerr County, Texas having duties under said Rules are authorized to perform such duties as are required of them under said Rules. SECTION 9. INCORPORATION BY REFERENCE. The Design Criteria and all future amendments and revisions thereto are incorporated by reference and are thus made apart of these Rules. A copy of the current Design Criteria is attached to these Rules as Appendix I. SECTION 10. AMENDMENTS. (a) Upon the transfer of ownership or possession of a lot or tract of land --- which has one or more OSSF thereon by sale or contract for deed the owner shall apply to the Designated Representative for an inspection of each OSSF, if required, as shown in the following diagram: Is there a valid L.icerue~o- yes Operate the OSSF on record dated an or after October 1,19927 No Was the License-to-Operate fhe OSSF Issued lessthan 10 years before the date of the transfer? No M in~rection sha116e lequted h acrArdance wNh the pmcedues and standards slaver belevr. Yes isthereawastehaUerrecord shoMng al OSSF tams have been pumped and cleaned wtHn 3 Years of the lransteR No I Yes No itspecfiar sha0 be regdred. lioerrse shag be transterted to new owner or corrbariar far deed. r (b)Inspection Procedures and Standards. These procedures are based on OSSF design criteria set forth in 30 TAC 5 285, research information published by the American Society for Testing and Materials, and independent research by Kerr County on state-of-the-art OSSF inspection technologies and applications. When a transfer of ownership or possession of property with one or more OSSF thereon occurs by sale or contract for deed the following procedures shall be followed: (1)The Applicant shall contact the office of the Designated Representative to determine if an inspection is required under paragraph 10. (a) above. 3 If the Designated Representative determines that no inspection is .--- required for a licensed system, a request for transfer of the License-to- Operate shall be processed. If the Designated Representative determines than an inspection is required, the Applicant shall be provided with the necessary application documents and fee schedule. (2)If an inspection is required, the Applicant shall submit the completed application documents along with any prescribed fees to the office of the Designated Representative. (3)After submission of the completed application and fee, the Designated Representative shall coordinate a date and time for the inspection with the Applicant. (9)On the date of the inspection the Applicant or the Applicant's representative shall: a. Be prepared to identify to the Designated Representative the locations of all components of the system including drainfield lines or other effluent distribution components. b. Have exposed for inspection all clean-outs on tanks and distribution systems and inflow and outflow connections on all treatment tanks. c. Be present for the inspection, and, at Applicant's option, arrange to have the Applicant's maintenance service provider present. (5)On the date of the inspection the Designated Representative shall conduct the inspection of the OSSF to include at a minimum the following: ^ a. Evaluate the OSSF for signs of failure which preclude the system from meeting the purposes stated in 30 TAC § 285.1. b. Evaluate the OSSF site characteristics to determine compliance with 30 TAC § 285.91, Table X, "Minimum Required Separation Distances for On-Site Sewage Facilities." (6)If as a result of the inspection outlined in paragraph 10.(b)(5) above discrepancies are discovered and/or repairs are required on any component of the system, the Applicant shall apply to the Designated Representative for a permit to perform the necessary construction and/or repair. The Designated Representative shall re-accomplish the appropriate inspection(s) on the affected component(s) during and after the construction and/or repair. (7)After all inspections are completed, the Designated Representative shall , provide to the Applicant a report on the observed condition of the system at the time of inspection. The report will include a description of the applicable paragraphs listed below and outline the Applicant's options. a. For previously unlicensed systems or systems licensed before October 1, 1992: 1. If the system meets the requirements of paragraph 10.(b)(5) above, the Applicant may continue to operate the system for as long as the requirements outlined in paragraph 10.(b)(5) above are met. (No license will be issued or transferred.) ,_, 2. Zf the Applicant desires to pursue licensing a previously unlicensed system and authorizes, at Applicant's expense, the additional inspection and testing required, the Designated 4 Representative will determine if the system meets all minimum ^ requirements of 30 TAC § 285 and can be licensed. If the system does not meet all requirements, the Applicant shall have the option of applying for a permit to construct, repair, or alter the system to meet licensing requirements or continuing to operate the system under paragraph 10.(b)(7)a.l. above. b. For systems licensed on or after October 1, 1992 which require a transfer inspection in accordance with paragraph 10.(a) above: 1. If the system meets the requirements outlined in paragraph 10.(b)(5) above, the License-to-Operate the system shall be transferred to the new owner or contractor for deed. 2. If the system does not meet the requirements outlined in paragraph 10.(b)(5) above, construction or repair shall be accomplished in accordance with paragraph 10.(b)(6) above. (c) The Designated Representative will actively pursue state-of-the-art capability in OSSF inspection technology and will conduct inspections with the least invasive, industry accepted procedures available to the Designated Representative at the time of inspection. SECTION 11. DUTIES AND POWERS. The Designated Representative of Kerr County, Texas is herewith declared the responsible entity for the enforcement of these Rules within Kerr County' jurisdictional area. The appointed individual(s) must be approved and certified by the Texas Natural Resource Conservation Commission before assuming the duties and responsibilities of the Designated Representative of Kerr County. SECTION 12. COLLECTION OF FEES. All fees collected for permits and/or inspections shall be made payable to Kerr County, Texas or to such other entity as the Commissioners Court may designate. SECTION 13. APPEALS. Persons aggrieved by an action or decision of the designated representative may appeal such action or decision to the Commissioners Court of Kerr County, Texas. SECTION 14. PENALTIES. This order adopts and incorporates all applicable penalty provisions related to on-site sewage facilities, which includes, but is not limited to, those found in Chapters 341 and 366 of the Texas Health and Safety Code, Chapter 7 and 26 of " the Texas Water Code and 30 TAC Chapter 285. SECTION 15. SEVERABILITY It is hereby declared to be the intention of the Commissioners Court of Kerr County, Texas that the phrases, clauses, sentences, paragraphs, and sections of this Order are severable, and if any phrase, clause, sentence, paragraph, or section of this Order should be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this Order, since the same would have been enacted by the ,_. Commissioners Court without incorporation in this Order of such unconstitutional phrases, clause, sentence, paragraph, or section. SECTION 16. RELINQUISHMENT OF ORDER. .--. If the Commissioners Court of Kerr County, Texas decides that it no longer wishes to regulate on-site sewage facilities in its area of jurisdiction, the Commissioners Court shall follow the procedures outlined below: (a) The Commissioners Court shall inform the Texas Natural Resource Conservation Commission by certified mail at least 30 days before the published date of the public hearing notice that it wishes to relinquish its On-site Sewage Facility Order. (b) The authorized agent shall post the required public notice in a newspaper regularly published or circulated in the area of jurisdiction at least 30 days prior to the anticipated date of action by the authorized agent. (c) The authorized agent shall send a copy of the public notice, a publisher's affidavit of public notice, and a certified copy of the minutes to the Texas Natural Resource Conservation Commission. (d) The executive director shall process the request for relinquishment and may issue an order relinquishing the authority to regulate OSSF's within the authorized agent's jurisdiction or may refer the request to relinquish to the commission. (e) Prior to issuance of a relinquishment order the local governmental entity and the executive director shall determine the exact date the authorized agent would surrender its authorized agent designation to the executive director. SECTION 17. EFFECTIVE DATE This Order shall be in full force and effect from and after its date of approval as required by law and upon the approval of the Texas Natural Resource Conservation Commission. AND IT IS SO ORDERED: PASSED AND APPROVED THIS IS-f DAY OF~, 20~ APPROVED: `/ County Judge / \'pO TTEST: `Sj} 9 . "~ County C erk s~~a