Time Of Sale or Transfer Regulations Reach Their Closing in Barry & Eaton Counties
Barry-Eaton District Health Department’s TOST regulation was so controversial that it had to be rescinded. How did a regulation with a clear focus on public health become so contested?
“When I got out of college in 1970, I moved to Barry County,” Bob Vanderboegh, 73, said. He’s a Vietnam war veteran and Ferris State University graduate who retired from business ownership. He’s now living in rural Barry County.
When he returned to Barry County for the second time, from Michigan’s upper peninsula in 2004, he purchased an 80-acre plot with a special lagoon septic system. A lagoon system is an alternative sewage system that uses an effluent pond instead of a drain field and is sometimes required in an area because of soil type. The design and construction were approved through the Barry-Eaton District Health Department. When he went to sell his property in August 2014, he didn’t think it would be an issue.
"In that nine years, the health department and the county had passed the TOST(Time Of Sale or Transfer) regulation which now required me to have that whole system inspected and approved," Vanderboegh said. TOST inspections are submitted to BEDHD by independent evaluators who they register. The cost can vary depending on the evaluator, but the processing fee charged by BEDHD is $167 for both septic and well approval, according to the 2018 fee schedule. The original fee in 2008 was $130, according to Regina Young, the environmental health director at BEDHD who administers the TOST regulation.
The registered evaluator inspected the onsite well, but a special engineer had to be called in to inspect the lagoon because the registered evaluator wasn’t trained for it, according to Vanderboegh. The evaluator submitted his paperwork to the health department, but BEDHD personnel were not able to inspect the property themselves.
Vanderboegh received a notice of failure from BEDHD early in October. It says his system’s valve access pit “had a cover that was not secured and childproof”. Vanderboegh says the pit was inside an enclosure with a 6-foot fence. The notice also said a cleanout pipe was “broken at the socket weld in the sanitary T”.
The sale of Vanderboegh’s property was blocked until these repairs were made and evidence, either photos, receipts, or a follow-up inspection, was submitted to BEDHD. If he didn’t comply within 180 days, the health department could levy civil fines of up to $200 against him each day. TOST also states that a violation can be considered a misdemeanor, and punished with up to 90 days in jail. Young says they’ve never resorted to any “escalated enforcement”.
Nine days later the repairs had been made, BEDHD sent a letter of approval and Vanderboegh and the buyer completed the sale.
"The aggravation of that took two months, and he and I could have signed the thing and been done with it in two or three days," Vanderboegh said. “It may be a maintenance issue, but the system is functioning fine.”
However, Young points out that Vanderboegh’s property could have been eligible for an exemption from TOST inspection. According to Section 7.3 of the TOST regulations, alternative systems like the lagoon system require yearly inspection. If he had followed that, all he needed was to fill out the one-page exemption form. The last option on the form is for alternative systems in compliance with Section 7.3.
“We had received no inspection or maintenance records since it was constructed nearly ten years before he did the sale,” Young said.
What the Data Says
Vanderboegh isn’t alone in disliking the regulation, though. In the summer of 2017, the Barry County Commissioners performed a public review of the regulation via online survey. Twenty-six percent of sellers who responded said it took more than thirty days to get approval to transfer their property.
Through their TOST regulation and independent, registered evaluators, BEDHD was able to assess the condition of onsite well or septic systems more than 13,000 times. Corrective action was required by the health department for about 1 in 5 wells, and 1 in 4 septic systems, according to BEDHD’s ten-year report released in 2017. This report is not the same as the public review, and is based on statistics and case studies from official records.
Wells most commonly required corrective action for “Substantial Construction Deficiency”, but several hundred tested positive for coliform bacteria. Coliform bacteria aren’t always dangerous themselves, but are used as an indicator for the potential of dangerous bacterial growth, according to the Centers for Disease Control and Prevention(CDC).
In more than 100 cases, levels of nitrate exceeding US Environmental Protection Agency standards were discovered. The CDC says nitrates can cause life-threatening illnesses in infants and people with certain blood disorders.
Fixing problems with onsite wells can protect a home’s residents from diseases like E.coli, with symptoms as mild as diarrhea and as severe as death. According to the CDC death from E.coli is rare(about 1 in 200 cases), but the elderly and children up to four years old are particularly susceptible.
Below is a map created from TOST data. It displays each instance where a TOST evaluation resulted in an action being required. It's colored by the reason for the required action. S stand for Septic and W for Well. It's highly interactive, too.
Sewage systems most often failed for “Septic Tank Structure” issues, most often it's for leaking. Hundreds of other cases were found where sewage was being discharged onto the surface of the ground or into surface waterways like streams and rivers. Contact with human sewage is a risk factor for several diseases, including E.coli and hepatitis A, according to the CDC.
Dr. Joan Rose is a professor at Michigan State University and co-director of their Center for Advancing Microbial Risk Assessment. She also won the Stockholm Water Prize in 2016, acknowledging her work with water and microbial safety. Much of her work surrounds septic tank function and safety.
In 2014, she worked on a study that tested 64 rivers in Michigan’s lower peninsula. The group checked not only for E.coli, but also for Bacteroides thetaiotaomicron, sometimes called B theta. B theta is found in the human digestive tract but rarely in any animals, so it works as a marker for human fecal matter. They checked their test results against public records of installed septic tanks.
"Our study found a strong correlation of the human marker increasing with increasing septic tanks in watersheds," Rose said.
Another study in central Wisconsin, led by Mark A. Borchardt of the Marshfield Medical Research Foundation in 1997 and 1998, also found a correlation between septic tank densities(regardless of their state of repair) and endemic diarrheal illness in children up to 19 years old.
"If you don't monitor, you can't fix the problem. You will never fix the problem, you won't even know you have a problem until you have a crisis," Rose said.
Most people agree that catching these problems and fixing them is an appropriate thing to do. Barry County’s online survey ranked public safety or protecting the environment as the top priority of each segment of respondents; buyers, sellers, professionals and the general public.
However, the next priority in all four segments is “reducing financial burden”. So when people are being charged hundreds to thousands of dollars in order to protect and maintain public health, it’s no surprise when they ask for the evidence that it’s working.
Barry and Eaton each have waterways considered to be ‘impaired’ by the Michigan Department of Environmental Quality(MDEQ). But according to Molly Rippke, an MDEQ aquatic biologist, there’s no way to show that the TOST regulation has helped change that .
A Hole in the Data
The MDEQ tests water across Michigan for E.coli and other factors that make a body of water unhealthy for human contact. Before 2013, however, they mainly focused on beaches like the one on Thornapple Lake at Charlton Park. This is where the most human skin contact occurs, and where swimmers are more likely to swallow the water. The State’s testing has become more thorough, but BEDHD’s TOST regulations started six years earlier, in 2007.
“We would have no baseline to compare that[new data] to,” said Rippke.
This hole in the data means a lack of evidence for supporters and opponents of the TOST regulation in Barry and Eaton according to Young. She had led the TOST program for the last ten years. She says everyone would like to see how TOST has affected overall water quality, but the data that would show it simply doesn’t exist.
"It's Just a Lot of Little Things"
“Some people don’t like the fact that the government can make them do stuff,” Duane King said. He’s a home inspector and one of BEDHD’s registered evaluators. He’s performed at least 480 TOST evaluations, but that’s only about 3.5% of the total.
“I’d rather do a home inspection any day than a well-and-septic,” the 54-year-old King said. When performing a home inspection, he can stay out of the weather. Septic system evaluations can take more than an hour of probing the ground outside a home for the underground parts of a septic system.
According to King, finding a system dumping sewage onto the surface is relatively rare, but it does happen. Sometimes, instead of a drainfield, there will be a single pipe heading into a neighbor’s farmland or nearby trees.
In the worst cases, like one found in 2017 outlined in BEDHD’s 10-year report, sewage is found being dumped directly into surface water.
John Resseguie, Sr is a homeowner in Barry County who buys and “flips” houses.
“It’s just a lot of little things that have happened,” Resseguie said about his frustration with TOST inspections.
He bought a house in Hastings in 2009 that had a well but was hooked up to city sewer. According to the site drawing on file from the evaluator, the sewer line runs from a corner of the house to a cleanout, and then toward the road, but the well is near the same corner of the house. According to State code, a minimum isolation distance of 10 feet must be maintained around the well.
From the well to where the sewer line meets the house is about 10 feet and 5 inches, but the sewer line runs under Resseguie’s air conditioning unit, making it difficult to measure accurately where the line is closest to the well. At the time Resseguie’s inspector recorded a distance of 8 feet and 9 inches in the public record. Resseguie said the only justification he received from the evaluator for that measurement was “because I can”.
The health department still allowed Resseguie to finalize his purchase, but BEDHD has a letter on file that states the sewer is too close to the well.
“We want you to know that(the isolation distance is short), but you’re still authorized to transfer,” Young said. She said that BEDHD could do a confirmation visit and issue a correction if they found the measurement to be incorrect. The TOST program also includes an appeals process that, according to Young, nobody has ever used. Opponents of TOST have suggested the $384 fee for an appeal hearing is prohibitive.
"None of them want to see the well and septic inspection go, they just wanted the monster to go away," said Resseguie.
For a sale to proceed when a property fails their TOST inspection, the seller and potential buyer have to come to an agreement about how the reported issue will be resolved. In an effort to move forward with his purchase more quickly, Vanderboegh says his buyer offered to put $20,000 in an escrow account to cover any needed repairs. This is an option in the TOST regulation that can allow a sale to go forward before required repairs are finished. According to Barry County survey responses, most repairs total under $2,500.
In the purpose section of the TOST regulation, it states, “It is not the intent of this Regulation to cause existing, functional systems… to be brought into compliance…”. Based on this, opponents say BEDHD is overstepping their responsibilities by requiring minor repairs, like in Vanderboegh’s case, before a sale is allowed. Needing the health department’s approval at all to sell a property is a “big, red flag” according to Vanderboegh. Some responses in Barry County’s online survey claimed it violates constitutional rights.
"The reason we chose time of sale is because it's a financial transaction," Young said. "If they do an evaluation at the time of sale when there is a financial transaction occurring, they can then negotiate the ways of paying for the correction.”
This sometimes means one or both of the parties setting money aside in an escrow account to pay for the repairs after the sale is complete. Any extra money in the account is kept there until the repairs are approved by BEDHD. There’s a $91 BEDHD fee for administration.
“It comes down to money,” King said. “These people are trying to sell their homes, they get hit with this unexpected expense because now they have to fix something.”
There are some loans for home repairs available through the Michigan State Housing Development Authority. Called Property Improvement Program loans, they’re available to people with limited income and can have terms as long as 20 years. However, according to MSHDA’s website, applicants must have equity in their home and a credit score of at least 620. They’ll still be charged at least 4% interest as they repay the full amount, too.
Vanderboegh was also required to install a ‘mound’ septic system at his new residence. When soil contains too much clay for a drain field to work, a mound system is an above-ground alternative. Some people say they’ve had trouble with their mound systems freezing. They’re frustrated that BEDHD has required them in so many instances.
"A properly installed mound is not going to freeze," said Young.
Vanderboegh has never had an issue with his mound system, which he installed himself with approval from BEDHD.
Mark Hewitt has been a realtor in Barry County for almost three decades. He says he was one of the people BEDHD turned to for help developing the TOST regulation, which he initially supported.
“I can’t tell you the name of one single person that wants to purposely contaminate our water,” Hewitt said.
However, he supported the repeal this year because he felt it infringed on his clients’ property rights by creating a subjective, governmental barrier for selling a home. He said sometimes the cost of repairs can be as much as a third of the value of the property, and even those in compliance struggled with the regulation.
“I can’t even tell you how much hassle,” Hewitt said. “Now, with that came job security, quite frankly.”
Hewitt often found himself helping clients navigate the TOST program, he isn’t against all evaluations, though. He says he tries to be aware of environmental issues. When Hewitt went through his own TOST evaluation, it found a pipe leading from his septic tank straight to a nearby ditch, just a few hundred feet from the Thornapple River.
“I would bet 50 to 70 years worth of sewage going directly into the Thornapple River,” he admitted with mild chagrin. Within two months, a new system was in place and approved by BEDHD, according to public records.
The TOST regulations weren’t set in stone when they were put in place, either. BEDHD has made several changes to they way they notified property owners of the inspection results, as well as expanding exemption options and loosening certain requirements. One example is allowing small diameter wells to be used, as long as they test clean, are at least 25 feet deep and are properly isolated.
The End is Another Beginning
The Eaton County Board of Commissioners held the final ratifying vote on March 21. TOST regulation is officially rescinded and BEDHD is nearly finished dismantling the TOST program.
Coincidentally, on March 22 Representative James Lower introduced HB 5752 to Michigan’s legislature.
"We're the only state in the country without a statewide septic code regulation. So the way Michigan does it is a patchwork of regulations that are done by either the counties or the townships," Lower said. "Sewage flowing into a river is not relegated to a county, or a couple of counties even, the watersheds are multi-county, they're huge... It makes it hard for them to effectively regulate that."
The bill would require any inspection of onsite septic tanks be submitted to the DEQ via the local health department, and an inspection of every on-site septic system at least every 10 years. An inspection done by a buyer at the time of sale and submitted to the health department would count toward that requirement. Inspections are to be valid for 5 years. It also defines what constitutes a failing septic tank, and sets forth a process for new technologies to be approved and utilized. It sets a State administrative fee of $25, less than a fifth of what BEDHD charged. It had a favorable reception at its first hearing on April 11.
“Nobody spoke against the legislation,” Lower said, although he said some groups asked for minor tweaks.
In the meantime Barry and Eaton counties default back to their original sanitary code.
"Our goals won't change... it's the tools for finding and the tools for getting correction that has changed significantly," Young said. Without the negotiation options applied by TOST, she says any public health violations found that aren’t repaired can only be met with condemnation and an order to vacate the premises.
"Never did I want to or sign up for this job to kick people out of their homes,” Young said. “I wanted to help people, but that's the regulatory tool that exists in the absence of a more structured program like the time of sale program."