OPEN LETTER TO GOVERNOR NAPOLITANO

17 January 05
Monday

The Honorable Janet NapolitanoGovernor of Arizona1700 West WashingtonPhoenix, Arizona 85007

Greetings Governor Napolitano:

Some how it seems appropriate that I would be writing to you on the day our Nation and State set aside to honor the work of Dr. Martin Luther King, Jr. For me, the essence of his message is we can accomplish and achieve anything undertaken in the spirit of co-operation, honor and trust. In light of the increased polarization at our national and State level the essence of his message appears to be having been lost.

No where is this more apparent than in the current rule revision promulgated by ADEQ and recently submitted to the Secretary of State for publication per protocol. ADEQ states the revision is necessary to correct the deficiencies in their rule enacted in 2001. Few, who are affected by this rule, would argue that revisions are necessary to make what was a hastily enacted, politically motivated, poorly constructed rule, useful and capable of being usefully implemented.

The preamble to the revisions proposed by ADEQ for R-18 – 9 makes a mockery of the work product and effort of the untold numbers of “volunteers” who primarily without any form of compensation freely gave to the State the benefit of their collective years of experience in this domain. Records and documents substantiate that hundreds if not several thousand of hours were spent by folks from academia, county regulators, engineers, contractors, product vendors, suppliers, homeowners, and general citizens in debate on how to close the gaps in the existing ADEQ rule. Unfortunately, ADEQ chose not to sit at this table and negotiate in “good faith.”

The preamble notes ADEQ held “listening sessions” throughout the State. Like many, I attended at least one of each of these listening sessions, and like all those assembled was informed that ADEQ would address the concerns raised at these listening sessions and get back to us. We are still waiting for the agency to get back to us, to in truth answer the questions raised, the positions noted, and the documentation on the part of the agency as requested by those in attendance.

The preamble also notes that nineteen formal OWAC (an official arm of ADEQ) meetings have been conducted since this rule was officially enacted in 2001. What is missing is this same OWAC requested in a formal petition to Ms. Karen Smith, Director/Water Quality Division of ADEQ, to delete from this revision all portions affecting residential onsite wastewater treatment and disposal. This request made by the Chairman of OWAC, Mr. Larry Hawke, representing Pima County Environmental Health, was rejected out of hand by Ms. Smith.

The economic impact of these newly proposed revisions to the Rule are not easily discernable in the agency’s preamble. When questioned by GRRC in 2001, ADEQ stated categorically there was NO economic impact to those impacted by this Rule. In reality since 2001 there has been a significant economic impact upon those affected by this Rule beginning with the fifteen County Environmental Health departments who were required to implement this Rule without any assistance from the ADEQ. Moreover, every homeowner who installed a new residential onsite wastewater treatment and disposal system felt an economic impact with higher costs beginning with the amount and type of “paperwork” required for a permit. Additionally, homeowners faced increased costs from designers, engineers, contractors, vendors, suppliers who were forced to adhere to arbitrary and capriciously applied interpretations of the Rule by ADEQ personnel. Before 2001, the average cost of a so-called “standard conventional” septic system in Arizona was - $2,000 to $4,000. In 2005 this cost is $3,500 to $6,000. Some is the result of inflation, much the result of Rule. Before 2001, the average cost of a so-called “alternative” septic system in Arizona was - $12,500 to $17,000. In 2005 this cost is $14,500 to $19,000. Some is the result of inflation, much more in the case of “alternatives” the result of Rule interpretation by ADEQ. When one attempts to factor in the economic impact of agency’s proposed Nitrogen Management Area, one can only guess at how much more this will cost those caught in that bureaucratic milieu. The agency has chosen to side step and not honorably address the actual economic impact their Rule and now their proposed Revisions will have upon the citizens of Arizona.

What is heart breaking is many individuals from various backgrounds and disciplines attempted to question ADEQ on the economic impact and where never granted a reply. Might one ask, why not ... ?

The preamble alludes that virtual unanimous consent has been reached with the REALTORS respecting the use of the agency’s presale septic inspection agreement form and format. Nothing can be further from the truth. There is concern in many areas of our State by very competent Realtors on the form and format of the proposed ADEQ presale septic inspection. Moreover the current rule stipulates the fee charged for this inspection is to be remitted to the respective county. ADEQ now envisions this fee is to be remitted to ADEQ, while performing absolutely nothing. The respective County is the current depository of all documentation and is the “lead” agency whenever any issues arise. ADEQ performs nothing and expects to get paid for it. I don’t think so.

The preamble notes ADEQ desire to designate Nitrogen Management Areas, which when read closely is merely a granting of omnibus power to this agency without clear delineation of any problem. The agency is saying we will declare an area to have a nitrogen problem and stipulate the solution. Is the solution envisioned by ADEQ more multi-million dollar “big-pipe” solutions like that imposed on Lake Havasu City...?

It is interesting to note the agency’s preamble indicates approx. 5% each year of all NEWLY installed residential onsite wastewater treatment and disposal systems are in a category commonly called – “alternatives” – which strikes many of us as out of sync. Are we to honorably conclude that since inception of this rule in 2001 there would not be a slight increase each year in that percentage of systems of property incorporating the attributes of requiring installation of an alternative type of system...?

Governor, in an age where governmental personnel are most often tasked beyond endurance, it seems foolish when generously offered primarily without any form of compensation from the State of Arizona, the time and talents of individuals representing a plethora of backgrounds, disciplines, ranging from Count Environmental Health professionals to currently licensed Professional Engineers, to retired ADEQ personnel, product vendors, suppliers, contractors, homeowners and others who came to the table and granted the State the benefit of their collective wisdom only to have their efforts rejected out of hand by ADEQ. This is the legacy of your Arizona Department of Environmental Quality.

As a very competent attorney, and our former Attorney General of Arizona, Governor, you are undoubted aware of “bad faith” negotiation. While it grieves me, Governor, I challenge your Director of Environmental Health to prove to the citizens of Arizona, the agency he heads has in fact dealt honorably and truthfully in all aspects promulgating this rule revision, and has not chosen a path of obfuscation and half-truths.

I am asking you to exercise the power of your personal magnetism and ask the Arizona Department of Environmental Quality to come back to the table in the spirit of cooperation, open mindedness, and truthfulness and join with us to put into place a rule with wisdom and longevity.

Were we to choose to honor that, for which Dr. Martin Luther King, Jr., gave his life, striving to reach that plateau where we live in honor and truth, let it begin here and let it begin now.