SiteAssessor.com Blog

1. Introduction

Over the last week or so there has been much discussion about the issues surrounding the pending legislation of Septic Tank registering, monitoring and inspection. Quiet a few media articles have touched on a few bullet point items surrounding the Bill. However as I feel that as this is a piece of legislation that will directly affect myself and up to 1.5 million Irish people I have decided to personally dissect the Bill with the help of Kevin Murray and highlight areas that have been addressed and are in need of serious clarification. The more I read the bill the more questions that it throws up. I don’t have the answers to some of the questions raised in this article but if anything I hope it will lead to further discussion/debate and balanced scrutiny before the Bill is debated and passed by the houses of the Oireachtas pre 2012.

As we all know at this stage this amendment to the Water Services Act 2007 has been introduced to make Ireland compliant with a European Court of Justice ruling in October 2009 where the Court found that Ireland had failed to fulfil its obligations regarding domestic waste waters. The legislation if passed will be introduced by means of an amendment, or, more to the point an insertion of a new Part 4A (after part 4) under the Section 4 titled “Domestic Waste Water Treatment Systems”.

There has been a lot of thought and consultation behind this new piece of legislation and it must be hoped that the European Commission will accept that it meets the State’s obligations to its people. It must also be seen as a fair way of managing the responsibilities and obligations of those that own such septic tanks.

There are a few aspects of the bill that arise interest; and they largely surround the monetary figures that have published. They are:-

• €50:- (max) charge to be paid (every five years) by the property owner to register septic tank.

• €200:- fee for a re-inspection.

• €1000:- Each inspector will have to pay a registration fee of €1,000 (max), and will have to pay the same fee every time they re-register.

• €5,000:- persons (homeowner, proprietor of Septic Tank system) found guilty of an offence.

• €50,000:- a water services authority found guilty of an offence.

2. Crunching the Numbers

2.1. Registration Fee:

The new bill is clear in some respects. There will be a €50 (max) charge to be paid (every five years) by the property owner to register his or her septic tank. The revenue from the fee will be used to defray the costs of the water services authority and insure there are no Exchequer or staffing implications arising.

A county council might expect to get between €1.25-€3.75 million every 5 years or €250k-750k per annum on this basis, depending on the number of septic tanks in the county. Eg. Limerick Co Co approx 25k wastewater systems should in theory generate €1.25million and Kerry Co Co approx 40k systems should again in theory generate €2million (every 5 years).

2.2. Re-Inspection Fee

Interestingly, the fee for a re-inspection is identified as €200, but this appears to be quite low in the context of the potential requirements of a re-inspection. Subsections (1)(a) to (1)(i) detail the potential scope of an inspection, including surveys, excavations, monitoring, testing of samples, etc. There is no way that extent of work can be done for €200 or anything like it; and if that is the scope of an inspection, then a re-inspection will hardly be less detailed. Therefore, the €200 fee required of the property owner can’t be seen as being anything other than a partial contribution to the costs.

2.3. Inspector & Annual Fee

Each inspector will have to pay a registration fee of €1,000 (max), and will have to pay the same fee every time they re-register. This money is to cover the costs of the EPA; largely in the preparation and control of the National Inspection Plan. It is not clear how often the Inspectors will have to re-register or how many Inspectors will be allowed on the Register. Therefore, it is not clear how much revenue will accrue to the EPA.

So how much will this cost somebody who wants to be an Inspector? If they have to pay a registration fee of €1,000, plus carry professional indemnity insurance of €1,500 (approximately), and attend a certified training course then it does not take long before the numbers start adding up. Also the cost of completing any inspector course will be approx €1500-2000, then it is going to cost at least €4,000 to become an Inspector, and between €2,000 and €2,500 annually to renew registration.  This is a considerable burden and one would want to be confident that the investment of time and money would and could reap a reward.

If an Inspector is refused to be appointed or renewed as an Inspector then  the EPA must give reason(s) for the refusal to appoint or renew an appointment or for the revocation of an appointment must be provided and the person concerned may appeal the notification. The Minister, may appoint one or more suitably qualified persons to act as appeals officers for the purposes of this section. For the purposes of this Part, an appeals officer will be required to have knowledge of domestic waste water treatment systems and inspection procedures. The appeals officer appointed will be independent in the performance of his/her functions as an appeals officer. The appeals officer will consider appeals under this section in accordance with prescribed procedures and will either allow or refuse the appeal.

3. Homeowners Guilty of an offence

DEEP DEEP breath for this part if you’re a homeowner with a septic tank/sewage treatment system. A number of interesting points raised in the Bill:

This Bill places responsibility on the owner of a premise to ensure that the on-site waste water treatment system serving the premises is maintained and operated in a manner that does not cause risk to human health or the environment. It also provides that owners register their systems with the relevant water services authority by the prescribed date. Failure by an owner of a premises served by a treatment system to carry out any of the requirements of this section will be issued with a max fine of €5000.

Owners must maintain their treatment systems so that they do not pose a risk to human health or the environment and in particular not to:

• create a risk to water, air, soil, plants or animals,

• cause a nuisance through odours, or

• cause pollution to the countryside or places of special interest — these include Special Areas of Conservation, Special Protection Areas and Natural Heritage Areas.

• provides that owners must ensure that their treatment systems are included on the register of such systems

Once notification of an inspection has been provided by a water services authority, it will be an offence for a person to prevent an inspector from entering a premises (Not the dwelling), to obstruct or impede an inspector when carrying out their duties, or to provide false or misleading information regarding a treatment system to an inspector, or to the EPA or a water services authority.

The owner can not  prevent an inspector from

• entry and inspect any premises served by a domestic waste water treatment system,
  (Very important to say that the homeowner has the right to refuse entry. The person doing inspection, be it the inspector or the Council must give 7 days notice to the owner or occupier before entry to site.)

• examining and test a treatment system and all related parts, fixtures and fittings,

• monitoring any domestic waste water stored in or discharged from a premises or treatment system,

• take samples of substances discharged to or from, or associated with, a treatment system,

• taking photographs,

• carrying out surveys, take levels and carry out excavations and examinations of subsoil,

• requesting information from owners, occupiers and anyone employed on a premises regarding the maintenance, servicing or operation of the treatment system,

• requesting the production of any records or documents regarding the maintenance, servicing or operation of a treatment system, and remove or take copies of those records or documents, and

• requesting that any part of the premises is left undisturbed during the course of an inspection.

Once an Inspector has concluded the inspection they will notify the owner AND relevant water services authority within 21 days  of his/her opinion and the reasons for that opinion. In the event a system is deemed to be unfit for purpose in its current condition then a direction to the owner to carry out necessary remediation works within a specified timeframe will be issued. Further more the system will have to be re-inspected once work shave been completed.

Remember the householder gets a refund if the Council don't endorse the report from the site assessor.

If an owner feels aggrieved by an advisory notice arising from a re-inspection they may, within 14 days, appeal against the notice to the District Court. An appeal may be made on the grounds that: (a) the person making the appeal is not the person on whom the notice should be served, or (b) a substantive or procedural illegality exists. The District Court judge hearing the appeal may confirm, vary or cancel the advisory notice.

4. Local Authority obligations

A water services authority found guilty of an offence under Section 70(I) will be liable to a fine not exceeding €50,000. Section 70(I)(6) concerns failure by a water services authority to comply with a direction issued by the EPA.

The Bill provides that the EPA may direct the water services authorities to maintain records regarding registrations, inspections carried out, advisory notices issued and prosecutions initiated, and to submit those records to the EPA. The EPA itself is required to keep records regarding its supervisory role and of directions issued to water services authorities.

Water services authorities must comply with directions issued under this section — failure to do so will be an offence.

The EPA will be the supervisory authority for the purposes of the implementation of this Part by the water services authorities and will issue a direction to a water services authority where it considers that the authority has failed to perform any of its functions.

The EPA may direct a water services authority to keep records, and to submit to it, in formats and at times it may specify, records and information

concerning—

(a) the registration of treatment systems in the functional area of the water services authority,

(b) inspections of domestic waste water treatment systems carried out,

(c) advisory notices issued as a result of those inspections,

(d) notices confirming that remediation works have been completed,

(e) appeals to the District Court regarding advisory notices, (f) prosecutions taken in respect of cases of noncompliance with requirements under this Part, and

(g) any other matters considered appropriate by the EPA.

It does beg the question as to why we need 34 Registers for septic tanks; one in each local authority. Some of the City Councils will get no more than €20,000 per annum to operate this system, so one would assume that they at least would piggy-back on a neighbouring county council’s register. Indeed, one would expect that the money would go a lot further if there was just one national register. It would also eliminate the risk of variations in the detail of local registers that would just add to cost for the inspections and introduce the risk of legal challenge.

5. Unanswered Questions/ Issues worthy of Debate:

After reading the Bill a number of times I have decided to list a number of issues that I would like to see clarified.

• So who will pay for the costs of the Inspections? It is clear that the Inspectors will be engaged by either the EPA or the local authorities and assigned to conduct inspections in accordance with the National Inspection Plan. Certainly this aspect of the bill appears to have few threads of clothing. Where is the funding stream for the inspections? It appears that the Exchequer intends to fund the inspections, but to what extent?

• Possibly some local authorities will appoint Inspectors from within the local authority structure. However this raises a very serious issue in relation to who carries the burden of liability. Surely the Local Authorities will not accept liability in the event of a system being deemed suitable when it subsequently transpires that it is not a correct evaluation. (Primarily these issues are raised during the sale of a house)

• Certainly the inspection system will uncover septic tanks that are not functioning correctly and in need of repair or replacement. It may also identify environmental damage either inside the property boundaries or within the wider environment. The inspection may indicate a direct and immediate threat to the health and welfare of neighbouring properties – and there does not appear to be an obligation to inform those persons immediately along with the property owner.

• Unfortunately, the bill does not give any detail on how the Inspectors are to be engaged by the EPA or local authorities for individual inspections. Once an Inspector is on the Register will they be required to quote fees for individual assignments? How will that fee be determined if some Inspections may be purely visual and others may require opening-up works or laboratory testing of samples? If an Inspector is on the Register will they be guaranteed a certain minimum amount of work?

• In counties that have listed panels of Site Assessors eg. Kerry, Limerick, Clare, Wexford etc who are deemed competent to carry out site assessments and make recommendations for onsite wastewater systems how then can an Inspector who is not on this panel make a recommendation for upgrades. (Section 70H Subsection 6C  "a direction to the owner to carry out necessary remediation works within a specified timeframe".)

• The registration charge of €50 every five (5) years for the property owner. Subsection 3 provides that the application for registration must contain any further information that may be specified by the Minister. It must appear likely that this further information would include some basic details about the septic tank (or other system) and any maintenance agreements or records of desludging. That information may be easily available at no extra cost for those that regularly maintain their septic tanks, but will be a new burden for those that have not appreciated the true costs of a septic tank heretofore.

• GRANTS: There is no recognition in this bill that certain defects in on-site wastewater treatment systems may be outside the reasonable ability of the property owner to address without help. It would be useful if a limited grant scheme could be introduced for those that are in financial need and cooperate in all other respects with the registration process and the inspections.

• From a system owners point of view the Bill makes reference to an appeal to a district court BUT only if there has been a procedural illegality. I find this quiet strange. If for example the system owner was of the opinion that an inspector had made a professional error in an assessment on both an inspection or re-inspection then there appears to be no recourse through either the EPA, Local Authority or even the District Court as this avenue is only open to “procedural illegality”.

In summary, this new piece of legislation is hardly a stealth tax, but neither is it completely transparent about the funding model that underpins the legislation. It is a positive step towards meeting our obligations to our people and our environment, but it begs for a fair and transparent funding model for all of those that use these services.

6. Let the people have their say:

“The Water Services (Amendment) Bill which I published today provides for a proportionate and risk-based approach to inspections of septic tanks. It is intended that inspections would be targeted to areas where drinking water sources or habitats are likely to be, or have been, impacted upon. The risk-based approach is intended to minimise the impact on householders and the likelihood is that inspections under the new system will commence in 2013. ...While the majority of septic tanks may be working well, and in those cases the householders should have nothing to worry about, those tanks that are not working properly may be polluting groundwater and contaminating our drinking water supplies and must be re-mediated. The key objective of the new legislation is to enhance and protect public health and the environment which will, in turn, benefit rural dwellers in terms of a better quality of life and better quality water” the Minister concluded.” Minister Phil Hogan

“Minister Hogan has accused me in the past of scaremongering in relation to this issue. But the Bill that he has published today confirms my worst fears. In many instances, it is worse than I had thought possible. Despite spending over €200 million a year on water and sewage services nationally, no provision has been made by Minister Hogan for grants to septic tank owners in need of upgrades. It is clear that the Minister’s attitude is that rural Ireland must continue to pay the full cost for maintenance and upgrade of sewerage treatment systems and also pay the State or local authority for most inspections and registration.” Eamon Ó Cuív  Fianna Fáil

Marian Harkin, who consistently questioned the approach of the government on the issue of septic tank inspections in a series of regional meetings over the summer, said:- “The proposed legislation is totally unfair and discriminatory as it seeks to penalise rural dwellers with potentially ruinous costs while the position of urban dwellers is protected by the tax payer and provision of EU funding. The fine of up to €5,000 for non-compliance is truly shocking. This possibility will strike terror in the hearts of very many rural people. Indeed I would ask the question: will people end up going to jail because they cannot pay such a fine?” Marian Harkin MEP

7. Download the Bill