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HomeMy WebLinkAbout1996/08/22 - Board of HealthATTENDANCE: MASON COUNTY BOARD OF HEALTH APPEAL HEARING August 22, 1996 Dr. Mark E. Trucksess, Health Officer Brad Banner, Director of Health Services Mark Tompkins, Water Quality Program Manager Pam Denton, Lead Environmental Health Specialist Kim Lincoln, Environmental Health Specialist Brent Long, Clerk Janice Cooperstein, Appellant V.E. Cokelet, Appellant Robert Slee, R A S Commercial Services Al Everson, Al's Perc & Design Don Woolliscroft, Installer APPEAL HEARING - JANICE COOPERSTEIN/VIVENE COKELET MICHAEL DICK PROPERTY -LOT A SHORT PLAT 178, PART OF BELFAIR CENTER Health Officer Mark E. Trucksess called the appeal hearing to order at 10:05 a.m. He asked that each person testifying to state their names and to address comments towards him, the Hearing Officer. The hearing would begin with a presentation of the chronology of events by the Health Department staff. Kim Lincoln reported that on June 19, 1995, a complaint was received by the Mason County Department of Health Services (MCDHS) regarding the Michael Dick property, Parcel Number 12329-32-90050. June 22, 1995, the complaint was investigated by John Denison. At which time, a dry well was found to be in failure. June 23, 1995, water sample taken by Mark Tompkins at which time effluent was surfacing out of the dry well with a fecal count of 2,400 fecal coliform per 100 milliliter. July 17, 1995, the failure was turned over to Kim Lincoln for repair. July 24, 1995, the initial letter was mailed out to the property owner. August 9, 1995, an on -site meeting was held with the property manager, designer, and Kim Lincoln. October 6, 1995, the repair permit was received. October 11, 1995, a site evaluation was completed by Kim Lincoln. December 11, 1995, the design was received. December 12, 1995, appeals to the issuance of the permit were received by Janice Cooperstein and Vivene Cokelet. December 12, 1995, a design stake -out inspection was conducted by Kim Lincoln and Mark Tompkins. December 14, 1995, the design was approved by the Mason County Health Department. December 21, 1995, an appeal hearing was held. December 27, 1995, a letter was received by MCDHS from Janice Cooperstein. The letter stated additional concerns. Janice Cooperstein commented there were four pages of chronology, and she was uncertain if it was pertinent to why they were present. She asked that they get to the issues since they all have the chronology in writing. At the last meeting they were limited on time, and the meeting had been cut very short. Dr. Trucksess responded that the hearing would be in session until noon. He noted that the chronology was going along quickly, and it does bring him up-to-date on the matter. Ms. Cooperstein stated that she was unsure if it would indicate what was going on. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 2 OF 16 Ms. Lincoln continued her report. On January 4, 1996, the Health Officer's determination was. sent out to all parties concerned. January 5, 1996, a letter dated January 2, 1996, was received by MCDHS from Steve Wecker who was a witness for Janice Cooperstein. His letter detailed his concerns regarding the design. The two major concerns were design flows and waste strength. January 22, 1996, a letter was received by MCDHS from Janice Cooperstein. The letter detailed her concerns regarding the design flows. January 23, 1996, a letter was received by MCDHS from Janice Cooperstein. Her letter detailed more concerns regarding the design. Those concerns included design flows, safety margins, maintenance and operation. January 30, 1996, a letter was sent to Michael Dick from MCDHS. The letter stated that the new water readings indicated flows were underestimated and the design must be re -submitted. At that point, the design that had been approved back in December, 1995, was voided, and it had to be reworked. February 10, 1996, letter received by MCDHS from Bob Slee, property manager for Michael Dick. The letter and follow-up phone conversation confirmed that water saving devices were implemented throughout the building. In the phone call, it was agreed that after the devices were in place, monitoring of the water use would be done by the designer. March 28, 1996, letter received by MCDHS from Janice Cooperstein. The letter detailed more concerns regarding the design. The major concern was that the repair was an expansion. April 11, 1996, a new design was submitted. April 19, 1996, the design was reviewed and failed. April 29, 1996, a letter received by Dr. Trucksess, Health Officer, from Janice Cooperstein. This letter was immediately forwarded to MCDHS due to a conflict of interest. This letter detailed more concerns regarding the design. May 2, 1996, a letter was sent to Janice Cooperstein from Brad Banner. The letter stated that Dr. Trucksess forwarded her letter of April 29th to him due to a conflict of interest. May 10, 1996, the design was submitted, reviewed, and placed on hold for additional information. June 26, 1996, the design was conditionally approved. June 30, 1996, an appeal was submitted by Janice Cooperstein. July 1, 1996, letter was sent to the property manager, designer, and installer stating conditions for approval. July 2, 1996, phone call to Brad Banner from Bob Slee, property manager. Mr. Slee was inquiring about what regulation the Health Department had about prohibiting the installation of an approved design, even if it was under appeal. On the same date, a memo was faxed to Mr. Slee regarding his phone call inquiry. This memo stated that the MCDHS had no regulations regarding this. However, any installation should be done at the owner's full risk. July 7, 1996, appeal submitted by Vivene Cokelet. July 8, 1996, final inspection failed. It was approved for cover only and still needed inspection of pump tank and alarm panel. July 11, 1996, requested information was sent to both appellants. July 16, 1996, final inspection completed; passed. July 25, 1996, letter received by MCDHS from Janice Cooperstein. This letter stated grounds for appeal: design was deficient, repair was an expansion, system was too large for site, owner does not have easement from her so the system can be installed and maintained, and the installation involved risk or harm to and trespassed over the adjacent properties. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 3 OF 16 July 29, 1996, the installer called MCDHS. A roofing contractor had driven over and damaged portions of the front disposal area. A maintenance permit was applied for and damaged portions were replaced. August 9, 1996, a letter was received by MCDHS from Steve Wecker, Registered Sanitarian, who was a witness for Janice Cooperstein. His letter detailed his concerns with the design and installation. His concerns were the design flows, that it was an expansion and not a repair, operation and maintenance was inadequate, as well as installation problems. He had asked that this letter be entered during today's appeal. Dr. Trucksess asked what modifications had been made between the failed inspection on July 8, 1996 and the passed inspection on July 16, 1996. Ms. Lincoln responded that the terminology of "failed" on July 8, 1996, was a little misleading. Technically it was failed because she was not able to inspect all portions. In reality, the inspection was fine. What she was there to look at had passed. But she could not give it final sign -off until she had inspected the control panels and the pump tank. Technically it was failed, but it was not due to any deficiency. Ms. Cooperstein asked if the alarm was fully installed and operating. Ms. Lincoln replied it was. Ms. Cokelet commented that she has adjoining property. Her driveway was adjoining the backside of Mr. Dick's property and she was objecting to the same thing she was objecting to before. She felt the flow would either come under or over her driveway property and inundate it. If she wanted to open her driveway more, she would be unable. There was, however, a new problem. Now, if she drives into her driveway on a very hot day and the wind was just right, she could smell septic tank odor. Also, the ground was mounded higher than the original land strata. She was assuming it would finally pack down because it was loose dirt. However, they would have to wait and see. Ms. Cooperstein stated she has had conversations with Ms. Cokelet a number of times. They have had one septic engineer and one sanitarian look at the site. She wondered if the latest letter from Stephen Wecker was in the packet. Ms. Lincoln replied the letter was part of the packet, and indicated where it was located. It was the last letter received by the department. Ms. Cooperstein asked that Dr. Trucksess take a quick look at the letter from Mr. Wecker dated August 9, 1996. Ms. Cooperstein asked that a letter from a professional engineer be entered into the testimony (Exhibit A). The letter was written by Michael Mitchell, who she assumed most of them knew. Health Department staff responded they were not acquainted with him. Ms. Cooperstein stated Mr. Mitchell has been on WAC committees for six years. He has been a septic engineer for 20 years, and had been referred to her from a number of people from health departments, other engineers, sanitarians, and people in the field. Mr. Mitchell was well regarded by his colleagues. Ms. Cooperstein distributed copies of the letter. Ms. Lincoln asked if the exhibit should be read aloud. Ms. Cooperstein stated the letter from Michael Mitchell, Northwest Septic, Inc., was particularly pertinent and should be reviewed by being read aloud or silently, whichever Dr. Trucksess preferred. Dr. Trucksess asked that Ms. Lincoln read aloud the letter from . Steve Wecker, Registered Sanitarian, who was a witness for Ms. Cooperstein. The letter (Exhibit B) was received by the MCDHS on August 12, 1996, and written on August 9, 1996. Ms. Cooperstein addressed Mr. Wecker's calculation that the septic system was undersized. It was formulated by simply taking MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 4 OF 16 the plan of 816 gallons and translating it to the number of business days, five days a week. It shows the plan design has an undersized septic tank. She was at the property yesterday and took photos. She presented two photos to Dr. Trucksess showing that an extensive part of the west drainfield was literally up above the ground creating slope and/or height on top of a slope. The picture also showed the fence. Dr. Trucksess asked if the fence followed the property line. Ms. Cokelet responded that it was her property line and her fence which has been there over 10 years. Ms. Cooperstein commented that it showed a substantial part of the back drainfield. Dr. Trucksess asked for comments from staff regarding the letter from Mr. Wecker. Ms. Cooperstein commented it may save time to go on to the next letter because some of the statements were repeated. Ms. Lincoln began reading aloud a letter signed by Michael D. Mitchell, PE, Northwest Septic, Inc., dated August 13, 1996, to Janice Cooperstein. Ms. Cooperstein stated that she had sent Mr. Mitchell the information she had received on the design plans. Ms. Lincoln read aloud the letter to page 4, section 3, second paragraph, when Mr. Banner took over due to the condition of Ms. Lincoln's voice due to a cold. When Mr. Banner read statements regarding the flows to the drain field, Ms. Cooperstein remarked that the gallons per business day of 1,554 was calculated in April. In contrast, that was almost twice the size of the maximum capacity of the system which was 816 average gallons per day. She stated the underestimated flow was a major problem. The flow was based on a two -week period. Mr. Banner completed reading the letter. Dr. Trucksess asked for further comment. Ms. Cooperstein suggested that each public health concern pointed out in Mr. Mitchell's letter be addressed. She noted she has additional information to submit regarding the flow projections. Mr. Tompkins recommended that the additional information be presented. Ms. Cooperstein stated she had called Mr. Wecker the day after she received the plan in the mail back in June or July. She had called the Health Department to tell them about the flows. She was told the plan had been submitted on May 20. By that date, there would have been two full water district months which should have normally been included in a flow projection. At that time, the months were March, which was very low at 345, and April which was 1,140 gallons per day on average. Which, if translated to a business day, was about 1,554 gallons per day. The 1,695 gallons that were used in the projections for the plan were based on 13 days of readings in a time period, that based on subsequent history was not typical, and was no where near the subsequent months. In addition to March and April, there were additional months. Looking at the 5 month average, it was 1,668 gallons per day on average. And, flow projections are not supposed to be based on the average reading but on fluctuations of flows, variations and peaks. There is a flow projection in the plan that was obviously flawed based on 10 days of readings after a water fixture was changed. There were no safety factors, and the EPA manual was not being followed. It was flawed. She questioned how they estimated the flow projections. Mr. Tompkins asked if Ms. Cooperstein wanted to present the water flows. She replied that she had already submitted them to Ms. Lincoln. Mr. Tompkins stated, it was his understanding, that the system was designed using 816 gallons per day. It was based on the readings that were provided by Al Everson, the Designer. They were down to 668 gallons per day on average as figured out by Ms. Cooperstein. They were well below the design flow of 816 gallons per day. Ms. Cooperstein asked if they used the Standard EPA Design Manual. Mr. Tompkins replied the Health Department used practical flows to design the system, as was done with all repairs. They use the same criteria for restaurants and other places throughout the county. It was also done this MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 5 OF 16 way throughout the state. The EPA Manual was used as a guide. Since there are meter readings, they have been used. It was designed well above the. average of 695 and Ms. Cooperstein's calculation of 668 gallons per day. This system has been in operation since July and to date, to his knowledge, the alarm has not sounded. Ms. Cooperstein asked if that was correct. Mr. Everson and Mr. Woolliscroft responded that the alarm has not sounded once. Mr. Tompkins stated that in both letters from Mr. Wecker and Mr. Mitchell, their figures indicate that the alarm would have sounded in the first couple days of operation. Ms. Cooperstein disagreed. She stated that a very critical issue was what happens when the alarm sounds. Mr. Tompkins addressed the next issue which was the soil logs. He reported that the soil logs were dug in accordance with Mason County Standard Procedure, and were done like this throughout Mason County. The issue of color was raised. Mottling was noted on all permits where mottling was present. When there was no mention of mottling, then mottling was not seen in the test holes. The designer indicated a restrictive layer at 60" based on the depth of the test holes. That was how deep the holes were dug. Below that, they were unsure what was there so it was not used in the design figures. In this case, on the west side, there was medium sand and gravel found. On the east side, there was loamy sand which provides adequate treatment without a sand augmentation next to the beds. There was no problem with the effluent going out the sides because it would receive treatment in the loamy sand. Loamy sand would provide excellent treatment and should for a long time. In regards to the mounding of the effluent. There was over 3 feet of vertical separation being achieved in these drainfields. There was 2 feet of sand and an additional foot of soil. For pressure distribution, only two feet of vertical separation was needed. In this case there was 3 feet of vertical separation which would supply more than a sufficient amount of effluent treatment. Mr. Banner commented that there was a concern about the different depths of the test holes. Mr. Tompkins replied that he believed some of the holes had sluffed in by the time the staff viewed them. The holes had been dug deeper. He did not know if anyone on a backhoe could get test holes exactly the same inches deep, without sluffing. This was not a fault of someone digging the test holes or being lazy. Ms. Cooperstein responded that the slope over by the Cokelet's road did not indicate whether or not there were restrictive layers and whether or not her property would receive leakage. Mr. Tompkins stated that he and Ms. Lincoln looked at this area, and there was no apparent seepage from the bank. There did not appear to be anything that would suggest that water ever came out of that bank. The dry wells were up on the bank and there was evidence of effluent coming out of that bank. Now the area was spread out over a larger area, and the chances of the effluent breaking out of that bank was reduced by this new system. Ms. Cooperstein asked if he knew how much rainfall had fallen during that period. Mr. Tompkins replied that last year there was an above -normal year of rainfall. Ms. Cooperstein stated that relates to rainfall, but the drainfield would put out 484 inches. Mr. Tompkins stated all of it goes to the west side. Mr. Banner stated that the letter indicated that the rules were bent. The state regulations for repairs explicitly state what rules apply. Mr. Tompkins stated that Table 6 Repairs, state regulations, are done when a conforming system cannot be installed or where the system cannot be connected to a sewage treatment plant. In this case, neither one could be done. A conforming system could not be installed and there was not a public sewer available for connection. Therefore, they follow what was called a Table 6 Repair. A system is installed which maximizes distances to surface water and breaking water, neither of which were present in this situation, and MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 6 OF 16 then setbacks, property lines, and foundations are addressed. All of these separations were maximized to the extent possible on the site. Ms. Cooperstein asked if Mr. Tompkins knew the definition of a conforming system. She read aloud a definition of a conforming system: systems or repairs permitted through departmental concurrence by the waiver process which assures public health protection by higher treatment performance or other methods. By defining this plan as a Table 6 Repair, they have totally decided that they can waive any justification or waiver process on this plan. This was what has happened, basically. Therefore, everything they approve they simply say that they are doing the best they can. She wondered if that was correct. Mr. Tompkins responded that this design maximizes not only the horizontal separations but also the treatment capabilities. This was an enhanced treatment system. It was a sand filter system that will provide enhanced treatment. This was done . throughout Mason County in repair situations and it has been done for years. Ms. Cooperstein stated that at the last hearing, Ms. Cokelet was reassured repeatedly there would be no effluent going up to the west drainfield without being pre-treated. Now, there was no pretreatment. The effluent was going directly to the drainfield and without any sand sidewalls to keep it from going over the sand which the guidelines require. There was a high risk of the effluent going down the sides, which was pointed out by the engineer. There was only about a foot to a foot and one half to Ms. Cokelet's property line at the top of the slope. Mr. Tompkins replied there was enhanced treatment. A sand filter provides this treatment. It would go into the sand filter. The guidelines actually removed this requirement for a period in 1995, when the drainfield was originally designed. The redesign did not address changing the drainfield size or location. The gallons per days were adjusted. This was done in regards to the guidelines which were in place in 1995, which did not require that the sand be brought up 6 inches on either side of the infiltrators. Mr. Banner commented that Dr. Trucksess had asked Mr. Tompkins to address the concerns presented in the letters, and to address comments directly to him. Mr. Tompkins reported that the orifice size used in the design was consistent with Mason County regulations. One -eighth orifices have been allowed and used in Mason County since the fall of 1995. There has been extensive communication with the State Department of Health personnel on this. The head was increased in size which would prevent the clogging of the orifices. The clogging of the orifices would be of concern in systems of commercial operations which have a lot of high BODs and increases of oils. In this situation, that does not occur. They are not preparing or selling food. There was a smaller waste strength and there should be no problem with clogging the orifices provided that the head was at least five feet, which it was. In addition, the requirement for this larger head has been added to the DOH guidelines for pressure distribution and was currently being used throughout the state. Mr. Tompkins stated there was an Operation and Maintenance Program in Mason County which was officially approved and was being implemented. The implementation was occurring with citizens, designers, and installers throughout the community. In this situation, the owner, Mr. Dick, has agreed to comply with the Operation and Maintenance Program which has been put into place in Mason County. Mr. Dick has also indicated that he is responsible for contacting MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 7 OF 16 the installer/designer within 24 hours if the alarm is activated, and for notifying the MCDHS within 72 hours of the activation. This has been recorded on the property deed. The owner knows it is his responsibility, who to contact, and also agrees to comply with the Operation and Maintenance Program. The owner and manager will be well informed and trained. They are required to notify the designer, the installer, and/or the maintenance person within 24 hours of the alarm activation. Mr. Banner commented that for about a year the Health Department has allowed one -eighth inch orifices with a 5' head even though in the guidelines it states that the smallest is 3/16th. The reason for this was because the current thinking and current knowledge is that those are very acceptable with a 5' head. We have done this with the full knowledge and concurrence of the Department of Health. In July, 1996, the Technical Review Committee adopted the Guidelines for the Use of Pressure Distribution Systems, which has been endorsed by the Department of Health, and now the one -eighth inch orifice is allowed. Pam Denton stated that in Mr. Mitchell's letter, point number five, he criticized the dose volume. He stated the dose volume needed to be increased in order to protect public health. In the new Pressure Distribution Guidelines, page 7, pertaining to dosing frequency, it states that the minimum doses in Type I and Type II soils are greater than four times per day. More frequent doses than those recommended may be desirable in some designs. Dosing a drainfield provides intermittent aeration to the infiltrative surface. With this method, periods of loading are followed by periods of resting with cycle intervals ranging from hours, to a day, or more. The resting phase should be sufficiently long to allow the system to drain and expose the infiltrative surface to air which encourages degradation of the clogging materials by aerobic bacteria. In sands, however, the rapid infiltration rate can lead to bacterial and viral contamination of shallow ground water, especially when first put into use. Therefore, systems constructed in these soils, sandy soils, should be dosed with small volumes of wastewater four or more times per day to prevent saturated conditions from occurring, and hence, inadequate treatment. This system is designed with very frequent doses in accordance with the new technology and guidelines. Mr. Tompkins addressed the next issue from Mr. Mitchell's letter which was designer accountability. He commented that the designers were accountable in Mason County. There is a certification process and testing program. There is a minimum of a year's experience to apply to take the test. The test is extensive and was developed by their department. There is a review panel made up a designer, installer, county staff person, member of the Board of Health, and Dr. Trucksess who periodically review the designers and address any inconsistencies that may be found occurring with the designers. So, there is an internal quality control check which is done on local designers which ensures that the designers are very knowledgeable, and stay in compliance with the continuing education requirement. There are training workshops for the designers to keep them abreast of new techniques. Ms. Cooperstein stated that the staff has commented that there are current guidelines for sidewalls around infiltrators and sand filters, but they did not need to follow them because there was a period of time in 1995, when they were not. guidelines. This is a brand new design, designed in 1996, and it was not the same as the one which was proposed in 1995, because there was no sand filter then. This should be applicable because of the public health risk. When they are proposing to put this new drainfield 12 to 18 inches from someone's property line, there should be some higher standard. Dr. Trucksess responded that he was planning to have them adjust that. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 8 OF 16 Mr. Tompkins stated that requirement was not in place in Mason County. Ms. Lincoln stated it would actually be a guideline. Mr. Tompkins agreed. Ms. Cooperstein commented it was a guideline which was normally followed. Mr. Tompkins responded that the designers were not aware of it until 1996. Ms. Denton stated they made it aware to their contractors in April, 1996. Ms. Cooperstein stated that the contractor put in the extra 6 inches below, but forgot to put it up above. Mr. Tompkins stated that the east -side drainfield was not an issue, because there was not Type I -A soil up next to the infiltrators. It was Type III soil which does not require that you have the 6 inch extension or barrier. On the other side, where it was medium sand and gravel, there was not the 6 inches extended up on the sidewalls. It was not a requirement of a design in 1995, and was not put in the permit. Dr. Trucksess stated that they have not addressed the fact that the infiltrators are within 12 inches of the property line. Mr. Tompkins replied that it was a non -conforming repair in the fact that it does not meet the setbacks to the property line or the foundation. They put the drainfield in the area available for installation. This was an area where they know they have at least 5 feet of soil down below for treatment and disposal of the effluent. Dr. Trucksess asked that staff comment on the fact that the soil was packed up against the fence. Mr. Woolliscroft, Installer, referred to the photos. He stated it was hard to see without visiting the site. However, the difference between Ms. Cokelet's property elevation and the existing building was about a six feet difference. There was no excavation taken place at that grade. A lot of the material was existing. The grade on the drainfield was increased, maybe, one foot. Ms. Cooperstein asked if Mr. Woolliscroft believed the dirt piled two feet high against the fence was there. Mr. Woolliscroft replied that the difference in grade was probably 6 or 7 feet. They did not excavate 6 or 7 feet. He ran 500 gallons through the system all in one shot and there was absolutely no evidence of anything coming out of the sidewalls. The effluent was going straight down. Ms. Cokelet replied that the bottom of the fence was level with the dirt that was on Mr. Dick's property. She was present when they were digging and she had asked them to stop throwing the dirt over on her side of the fence. The workers were very surly so she walked off and left them alone. She objected to this. She would say again, the bottom of the fence was level with the soil on Mr. Dick's side. Ms. Cokelet commented that it would not be logical for someone to build a fence with loose material above the foot of it. Al Everson, Designer, stated that he did most of the work in the back. There was one low spot and it was probably where the picture was taken. That area was a little higher than the rest of it. When they started in there, he tried to pick up the fence to see how tight it was in case he hit it with his excavator, and he could not move it. It was down in the ground. There was no growth there. Ms. Cokelet stated the growth had been cleaned out completely. She stated that the fence was bent over at the end nearest the highway. Mr. Everson stated they were referring to the bottom of the fence. Ms. Cokelet replied that absolutely it was bent. Mr. Everson stated that over by the large trees there was a little swell, and it was leveled. The rest was basically the same, other than that one spot about 6 feet long. Ms. Cokelet stated it was his word against her word. Mr. Everson commented he was the one who did the work. Ms. Cooperstein commented that she measured the area that was about 2 feet deep to approximately 2 and one- half feet deep and it was more like 25 to 30 feet wide. Mr. Everson stated that was as long as the drainfield. Ms. Cooperstein stated that was not the size according to his measurements. There was an additional area on either side that was built up about 6 inches or 8 inches which expands another 35 to 40 feet. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 9 OF 16 Mr. Trucksess commented that he would visit the site. Mr. Everson asked what the concern was about the little bit of rock on the fence. Ms. Cooperstein responded that Ms. Cokelet may have some trespass concerns, but the Health Department concern was that the infiltrators were supposedly two feet below the top of the soil. Two feet below the top of the soil puts them in this two feet of loose dirt which was being supported. The infiltrators, if installed as designed, are in this top two feet which are being held up by a fence. Mr. Woolliscroft stated that if that was true, when he dosed 500 gallons through the system, it would have been spewing out through the fence. Mr. Tompkins informed that the infiltrators were two feet down from original grade. This is final grade. There is a big difference between original and final grade. Ms. Cooperstein asked if two additional feet was placed on top of the required two feet. Mr. Everson stated they were allowed 30 inches of soil, so they were able to put more soil on top. Ms. Cooperstein asked if they minded going back to the original grade so they could get off of Ms. Cokelet's fence. Mr. Everson commented that the concerns should be about public health, and wondered where she was going with her comment. Ms. Cooperstein commented it was obvious they should move on. Mr. Woolliscroft stated he would like to address the issue in Mr. Mitchell's letter regarding the way the system was set up. It was not set up in the way that Mr. Mitchell was assuming. It was a shame that one of Ms. Cooperstein's witnesses could not attend the meeting so they could straighten them out. He asked if Mr. Wecker had ever been to the site. Ms. Cooperstein answered that he has. Ms. Lincoln asked if he had been on site since the installation. Ms. Cooperstein replied he had not been asked to visit the site since the installation. Mr. Woolliscroft commented that Mr. Wecker had been looking at pictures. Ms. Cooperstein stated Mr. Wecker has viewed pictures provided by herself and by Mr. Woolliscroft. Mr. Woolliscroft stated that the photocopies were not that good, and not that much was able to be seen. It would have been nice if Mr. Wecker could have come on site so he had a clue about what he was talking about. Anyway, as far as the way the system was set up, there was 1,000 gallons reserve. The actual flow of the system, right now, was about 560 gallons a day. So, if the alarm were to go off, the high water override would come on, and the system would pump. If the system cannot pump when the alarm goes off, they have approximately two days to get on the site. He did not think anything Mr. Wecker was talking about really related to this system. He did not know where Mr. Wecker got his numbers, or where he came up with them, but they were wrong. Mr. Tompkins asked if Mr. Mitchell was on site. Ms. Cooperstein responded that he has not been yet. Mr. Woolliscroft asked Ms. Cooperstein where Mr. Mitchell came up with his statements about flow settings and the wiring. Ms. Cooperstein answered that, basically, there was nothing in the plan to explain what was done. Mr. Woolliscroft stated that it was not a standard practice to have a design which calls for float settings and such. Ms. Cooperstein stated that it may be in a plan that was stretching beyond the boundaries of flow projections. Mr. Woolliscroft commented that it was not stretching, the actual flow was 560 gallons per day. Mr. Everson stated that they do not count what comes out of the hose bibs. Ms. Cooperstein asked what was being used out of the hose bibs. Ms. Lincoln stated that they could ignore that comment. Mr. Tompkins stated that, even by Ms. Cooperstein's own calculations, they were down to 668 gallons per day. So, if Mr. Woolliscroft was looking at the system, and he was saying 560 gallons, and if they were watering any plants or anything like that, then there was the extra 100 MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 10 OF 16 gallons. Ms. Cooperstein asked what the 560 gallons per day calculation was based on. Mr. Woolliscroft responded that they were taking readings from the panel which showed the actual use going through the system. The system was dosing out 115 gallons every two hours. Ms. Lincoln stated that every time it comes on, a click goes on the counter. They can calculate how many times the counter came on to figure out the gallons per day, on average. Ms. Cooperstein asked how they got down as low as 560 gallons per day. Ms. Lincoln replied that was what the system was telling them. Ms. Cooperstein stated she did not believe that amount. Mr. Everson commented that one day a hose was hooked up and it turned on. Ms. Cooperstein asked which date that was. Mr. Everson stated he did not remember the date. Ms. Lincoln stated that these type of things do not need to be addressed here today. The fact was, the system, itself, has a way of telling them how many gallons per day has been used since its installation. It was telling them that 560 gallons of wastewater was being sent to that system. Not water used per day according to Belfair Water District, but wastewater. Ms. Cooperstein asked what other water was used during the day. Ms. Lincoln replied that was inconsequential to this design, or the installation of the on -site system. They were concerned only with what was going to the system. The system was telling them what was going to it. Ms. Cooperstein asked what water would not be going to the system. Dr. Trucksess asked what water was not going into the wastewater system. Ms. Lincoln replied that question would be best answered by the property manager. Dr. Trucksess wanted verification that it would be anything used by the garden hoses or the outlets on the building. Staff concurred. Mr. Everson commented that their gallonage was 560 and her's (Ms. Cooperstein's) was 660, so they were 100 gallons different per day, but that could fluctuate and balance out over time. Ms. Cooperstein asked how a flow, as in April which had 1,140 gallons per day on average and 1,554 gallons per day on a business day, would be handled. Mr. Tompkins responded that out of the six months of readings Ms. Cooperstein has, there was one average like that. The other five months show it was in the normal ranges. He would look to see if there was an anomaly which occurred. Ms. Cooperstein stated it was not something that was odd this year. This has happened every year, for years. There are enormous fluctuations in flows. Mr. Everson responded that fluctuations in commercial criteria were kind of like gas prices. There was nothing that was exactly the same all the time, because people were doing different things all the times. The flows would fluctuate. That was why there was a timer. They have planned for fluctuations. They have the Operation and Maintenance Program now to learn more about these systems. They were upgrading themselves all the time on these new modern systems. They were learning something every single day. •They would learn today from what Ms. Cooperstein was telling them. Ms. Cooperstein stated the Belfair Water District readings were due out soon. She wondered if they could call the Water District to see if the readings were available. Dr. Trucksess responded that if Ms. Cooperstein could provide those at a later date, he would take them into consideration. Ms. Lincoln stated that the Belfair Water District figures indicate all the water going to that building. The true reflection of the wastewater was calculated by the counter. Belfair Water District readings do not reflect anything to do with this design. Mr. Everson commented that the water meter was not always 100 percent accurate. Belfair Water District has had some problems MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 11 OF 16 with their meters in the past. He has talked with the person who does the meter reading and was told the readers were not completely accurate. Ms. Cokelet commented that in Bremerton they base the septic tank usage on what water goes into the system. What goes out of the system was based on the water that went into the system. Ms. Cooperstein stated they did not have these figures on the wastewater earlier. She did not understand what the 560 gallons per day was. She wondered if it was the maximum or an average. Mr. Woolliscroft stated it was according to the pump tank since the system has been installed. Ms. Cooperstein stated that the pump tank was 3,200 gallons. The flow goes from the septic tank to the pump tank. The pump tank does not fill. They were saying it was 560 gallons and not 816 gallons. She wondered how they knew that. Mr. Everson answered that the counter indicates each time the pump tank comes on and pumps so many gallons. They multiply the clicks by the gallons, and 560 gallons was exactly how many gallons they came up with. The counter was based on a 24 hour period. Ms. Cooperstein wondered if they read it every day if it was based on 24 hours. Mr. Everson commented that it was over 16 days. Ms. Cooperstein stated that first they had a projection on 13 days, now they have proof based on 16 days. Dr. Trucksess asked if there was any evidence, at this point, that the system was failing. Mr. Everson replied there was not. There was no evidence the last system was failing either, and it was a hole in the ground no bigger than the table before them, and it was taking everything that they dished out. Ms. Cooperstein stated that pathogens were going into the ground water. She asked if this was not a public health issue. Mr. Everson responded there was no ground water. Ms. Denton commented there was a public health concern or threat when there was a hole in the ground and there was sewage dumping into this hole in the ground which was no bigger than the table. In that case, sewage was being inadequately treated and there was, most likely, pathogens entering a ground water table. The current design was maximized. It was as big as it could be. It incorporates smaller doses to increase treatment, to prevent saturated flow, and protect public health. Ms. Cooperstein asked when the 16 day reading was taken. Mr. Everson asked what that had to do with the hearing. Ms. Cooperstein stated she wanted to compare the water district readings to see if it had been a low or high month. Mr. Everson responded it was this month. Mr. Banner started to address Mr. Wecker's concern regarding whether the system was an expansion or not. Expansions are addressed in the state regulations. Ms. Cooperstein asked that this matter be held off because although Mr. Wecker did bring it up, he had not gone into the arguments. Dr. Trucksess noted that the staff was responding to the points brought out in the letter submitted by Ms. Cooperstein, so he asked for a response to the expansion question. Mr. Tompkins stated that the repair was designed to handle the waste flow from the existing building and the existing flows. This was the standard practice in Mason County. It was done for all repairs. They look at the flows which were currently being generated by the building and they have a design completed which would address those flows. An example would be on someone's shoreline lot where there was a vacation cabin over the years and it was turned into a full-time place without the permission of Mason County. Use would have been expanded and if the system failed, the Health Department would not make them go back to that summer -time usage or limited use. The MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 12 OF 16 system would be designed for the current use of the structure which was exactly what they did in this case. They looked at the existing flows, and actually reduced the flow coming from the structure, and designed the system according to that. It was not an expansion of the system. Expansion of a system would be addressing alterations. As in a residence, it would be adding a bedroom. Or, in the case of a commercial site, taking it from an office complex like this and bringing in a restaurant which would increase the waste strength. That did not happen in this case. It was still an office complex and the flows were designed for what the existing building has. Mr. Banner stated that WAC 246.272.01.001 defines expansion. It means a change in a residence, facility, site, or use that causes the system to exceed its capacity. This would be something like a realtor's office changing to a restaurant or a residence expanding its building. Expansion refers to the use. Repair refers to the system. They have an existing use. He then read the definition for repair. Repair means restoration by reconstruction or relocation or replacement of a failed on -site sewage system. This was clearly a repair, not an expansion. It would be an expansion if they wanted a restaurant in the building instead of the dental office. Ms. Cooperstein stated that during the last hearing Mr. Banner had made a point that pursuant to the EPA, office gallons per day equals 15 gallons per day which was exactly the formula that was included in the original permit issued to Mr. Dick's building. A standard office was not a hair salon. A standard office involves toilet facilities only. A standard office does not involve dental irrigators, ex -ray machines, ex -ray developers, etc. The EPA gives a long list of commercial sources. She submitted this paperwork to Dr. Trucksess. She read from the regulations that expansion means change in use that causes an on -site sewage system to exceed its existing, what it was permitted for, capacity. This system was not permitted for a system this size. It was specifically permitted for a real estate office. The septic permit has the formula on it referring to the 15 gallons per employee. The plumbing permit has no unusual water fixtures on it, it was basically toilet facilities. It did not list multiple sinks, or ex -ray developers, dental irrigators or washing machines as are used in some of the offices. Literally, it was the Health Department's responsibility to adhere to the regulations. They have argued intent, but when intent was contrary to the language, it could not be argued. She did not see the language in a repair or expansion that justifies this. Based on the information she has received, there was no justification. Expansion was a change in use that exceeded its existing capacity. This new septic system was for twice the capacity of the existing use. The EPA Design Manual gives a few examples. It refers to flows for different uses. The differences are enormous. The goal of the health codes was to keep the flow of the system at or below the approved design, which would be the permitted, installed system. The office owner has violated his permit, and he has also violated his Operation and Maintenance Agreement which he signed years ago because he was beyond the normal limits of the size of the site. It was a very small site for a building that size. The change in the site reduces the treatment or disposal capabilities of the existing on -site sewage system and even the reserve area. This owner sold off his septic site and did not inform the people he sold it to that he was doing so. In subsequent years, he sold another site adjacent to his property that he could have used to install a septic system, but he chose to sell it off to make his profit in real estate rather than protect the building. He fits the definition of expansion in both ways. She does not believe the EPA meant to give out blanket approvals for commercial use. They said that the owner figures out what the building would be used for, then the owner applies for the type of septic system MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 13 OF 16 which was needed, and then they stay within those guidelines. If he chose to build a larger, safer septic system back then, or if he had the room to do so now, he could do so. But do not allow this person to over develop this property, again, and some more, in violation of many, many health regulations and at the risk of two other property owners, and the risk of public health. It cannot be argued that this plan protects the public health at all or that it protects it as well as it should with all the leeway which has been given to it in flow projections, design, using other people's property, and trespassing in order to install it. A Table 6 Repair means a repair or replacement of an existing septic system. It refers to replacing what they have. It does not say it can be made bigger. That would be an expansion. Another sub -definition of repair means to put back what was there, to restore, by reconstruction or relocation or replacement of a failed system. What has failed was the old system which was half the size of this new system. They have also skirted any waiver process or any requirement that the designer justify what has been done. It states that a health officer can permit a Table 6 Repair only when installation of a conforming system was not possible. A conforming system appears to be possible in the front, in the east drainfield area. It was not possible in the west drainfield area. They have not gone through a waiver process or asked the designer to justify public health or the affect on property owners, etc. It appears they have skirted this to get it through. This property owner was not owed a system which was twice the size of his existing system and twice the use. In the public hearing, Mr. Banner specifically stated that this site was plenty protected because it would allow 50 employees into this building. Well, based on the current existing office building, it was built to handle about 29, based on their projections. Now they have doubled the number of employees, and the use of the building. This owner can switch uses, increase employees, and use twice as much, at their expense, and in violation of the health regulations. She wanted to know if the Health Department believed he could do any type of commercial use because it was a commercial building. That was the only interpretation she could come up with to explain how they do not define it as an expansion. They all agree it was an enormous increase in the septic capacity, it was about double what the existing system was. She wondered if anyone had information that it was not doubled in size. It definitely exceeds its existing use and its existing capacity. Dr. Trucksess asked if staff wanted to respond. Mr. Banner stated that the EPA document Ms. Cooperstein referred to was a guidance document, it was not a regulation. The flow charts were taken out of context. His statement about 50 people in the offices was taken out of context, as they all know because they were all at the last meeting. That could be told to a neighbor who did not know. This was clearly not an expansion because they were not doing anything different with the facility. They were repairing a failing septic system. It was hard to go beyond that. They were not proposing a change in use. Ms. Cooperstein stated they have made a change in use without the appropriate septic system approval. Mr. Everson commented this would include Ms. Cooperstein's building. She responded that her building fulfilled all requirements. Ms. Cooperstein stated she did not understand how this did not fit the definition of the WACs for expansion. Dr. Trucksess stated that it was attempted to be answered but evidently it was not answered to her satisfaction. He wondered if she had any other comments. Ms. Cooperstein answered that she did have additional information to submit, and it was ten minutes to noon. Dr. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 14 OF 16 Trucksess asked if she had it in writing so it could be submitted for his review. She stated she would like to read her over -view. Ms. Cooperstein stated that the proposed system jeopardizes public health as stated by the engineer and sanitarian. It violates numerous health regulations. Any one of the four concerns would preclude approval. It violates EPA guidelines, the septic tank sizes, state guidelines for the sand filters up the sides, etc. It was seriously deficient. Recent actual flows were higher than the proposed system's maximum capacity. She wondered how they could argue when there was a whole month at 1,140 versus a maximum capacity of 816. EPA Guidelines, whether or not they want to go along with the details of the flows, talks about projecting fluctuations and peaks in flows, daily, weekly and monthly. It refers to safety factors in projecting flows, and that it was very difficult to project for a commercial building, so some hourly counts need to be tied on. Last year, her septic system was repaired, and her drainfield was about 2 and one-half times their average monthly flow, and last year when they went through the approval process, she understood that her designer was required to increase the size of the drainfield, and, in addition install a sand filter. There was double treatment and demands. Her drainfield was two and one- half times, not 1.2 times the amount of their average flow. To have a drainfield that was barely larger than the average and lower than some of the actual months, was a health hazard. The expansion WAC states that an expansion cannot be exempted from health regulations. This proposal's change in use, the fact that it has twice the capacity, and was a change from its permitted use applies. It changed from an office use, which according to EPA guidelines has low water use meant for toilet facilities, to types of businesses acquiring high septic use with such things as washing machines and dental irrigators. When this building was first built, the owner had to sign a covenant on his property. Basically, because the system was too big for the property. They let him have it even though it exceeded the standards they were trying to hit. The minimum lot sizes back then were 12,500 square feet and this lot was approximately 11,300 square feet. The system was too big for the lot. They let him put it in, but he had to have an Operation and Maintenance Agreement. Now, he was asking for more septic. The current WACs also state that the septic system was much too big for a site this size. This was a basic WAC underlining the goal of the health regulations. This was a quarter of an acre in size and he was asking for high septic usages and the WACs specifically exclude an exception to this. She identified the document which referred to this WAC. She read that the local health officer may permit the installation of an OSS when a minimum land area requirement or lot size cannot be met only when all of the following criteria are met: (the last statement) When the proposed system meets all requirements of these regulations other than minimum land area. This site was too small for the old septic system, but it was passed. This site was much too small for a septic system which was twice as big and the WAC specifically excludes the ability to put it in. Dr. Trucksess stated he believed the WAC referred to new construction. Ms. Cooperstein replied it also referred to expansion. It did not relate only to subdivisions. Mr. Tompkins stated there was already production of sewage on this lot, therefore, that regulation does not apply. Ms. Cooperstein responded that the regulation existed before this building was developed and it did not meet the regulations then. It got an exclusion because the site existed, but he was already stretching that regulation back then, and now they wanted to waive past regulations. This site had a covenant placed on it, and they were saying it did not. This site existed and was built after MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 15 OF 16 the WACs were passed. The problem was two fold; but basically it was the fact that this guy sold off his land, he over -developed even then, he violated all kinds of county development regulations. Mr. Everson remarked that Ms. Cooperstein was getting away from health issues. Ms. Cooperstein responded that it was a health issue. It was a health issue because it related to a minimum land area requirement. This was also an area that could be used for parking, but they were saying it could be used for this reason, and, therefore gets the other development problems off their backs. She finds it difficult to believe that the county can approve, in violation of the WACs, construction on a property, a septic system design, that requires trespass on their property to install it. There are no construction easements on the property. They were dug on and driven over in the area they have for a septic reserve. The area they drove on was basically the only available land for them. Under permits for OSS, it requires that prior to beginning the construction process, to get a permit, the health officer must approve locations existing and proposed encumbrances affecting system placement including legal access documents. She would suggest that since this septic system was impossible to put in without an easement, going right up to the property line, that it was negligent and violates the WAC for the county to give approval. Another WAC indicates that the owner must show a legal easement allowing access for construction, operation and maintenance, and repair of the OSS. There are other WACs, too, which refer to easements. Mr. Slee commented that they do have an easement, which he showed to the Sheriff when he was on site. He agreed that they had an easement. Ms. Cooperstein stated that he agreed that he did not have a judge telling him otherwise. It said ingress and egress, and she would argue, that it had nothing to do with septic systems. She believed it had to do with parking, primarily. Secondly, even if they do have ingress and egress, which was the most the easement stated, it would not give them the right to dig, construct, use, or damage their property. Dr. Trucksess commented that this would not pertain to his consideration. Ms. Cooperstein stated that it was further overdevelopment of the property. There was accumulative health risks, design problems, setback problems, the minimum land area problems, the expansion problems, the fact that it requires running over their septic system reserve areas, and the fact that it was hanging on Ms. Cokelet's fence. Individually many of these are important public health issues. Accumulatively, she finds them staggering. Basically, it was the Health Department's role to protect public health. It was not to do the minimum or the best they could, it was to protect public health and she believed this was a risky plan. They have interpreted the WACs differently. They cannot use intent, when the words say otherwise. They have judged the relative merits of each property owner's rights which the Health Department does not have the right to do. They were going to court on the encroachment, parking, and septic issues on November 6th and she would suggest that the Health Department allow it to be settled in court and not override the health WACs and allow it to be put in. Hearing adjourned at 12:05 p.m. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - COOPERSTEIN/COKELET AUGUST 22, 1996 - PAGE 16 OF 16 MASON COUNTY HEALTH OFFICER Mark E. Truc sess Respectfully submitted, Lorraine Coots