THE SHELLEY ALLEN STORY

The Shelley Allen Story . . . a current 2006 reality of the ADEQ mandated residential re-sale septic inspection program

Shelley dreamed of being a "homeowner" and followed a familiar path enlisting the assistance of an Arizona licensed Realtor to be her advocate as she proceeded. Following the usual and customary local purchase process, she became the proud owner of a home, in Verde Village 11, near Cottonwood.

Within months if not weeks of moving into her home she faced raw sewage backing up in her home. Among the forms presented at the closing of escrow of her new home was a form from a local septic pumping company indicating the residential on‑site wastewater treatment and disposal system (septic system) has been "inspected" and certified as being (operational)?. The fact that raw sewage backed up in her home was the first indication that the septic system was not operational.

Initially enlisting the assistance of her Realtor, Shelley was to encounter the first in a series of "closed‑doors" and was within a short period of time to learn she was on her own because currently Arizona does not have a system to assure home purchasers that the onsite wastewater treatment systems are in working order. The current system is designed to operate without regulatory oversight. The ADEQ created "re‑sale septic‑inspection system currently in rule allowed Shelly to become the victim of a faulty inspection and the questionable assurances of a licensed real estate professional who was representing the previous property owner.

Why the system failed ….
The home Shelley purchased has a residential on‑site wastewater treatment and effluent disposal system permitted, inspected and approved by Yavapai County Environmental Health in 1987. One of the parameters upon which Yavapai County chose to rely to grant this permit, has subsequently proven to be grossly incorrect. Shelley's home is a three bedroom dwelling on a property of minimal size to support the construction of a properly designed, sized and installed septic system. The 1987 Yavapai County permit was issued on the basis of a "perc" rate of "9". This rate was been subsequently proven to be grossly false and the actual "perc" rate is "27",
or 300% slower.

No Regulatory Oversight prior to 2000
At this point one could ask, why did Yavapai County Environmental Health choose to accept a "perc" rate which current testing on the same site determines is exceedingly misleading..? The answer might be as simple as at that point in the regulatory management of residential on‑site systems, Arizona was truly a novice, infant and juvenile and regulators were relying upon a document commonly referred to as ADEQ Engineering Bulletin 12, the guidelines to which everyone in the Arizona industry referred to at that time. One problem with "guidelines" they are just that ‑ guidelines ‑ not rule, not law, merely opinion and judgment. It was rather common place in that time period in Yavapai County for the Environmental Health regulators to rely upon "perc" test results provided by developers (in particular) as a "blanket" for an area and not to require (as is custom, today) individual site testing. More disturbing as Shelley discovered, until within the last year, 2005, Yavapai County Environmental Health continued to accept these age old "blanket‑perc" rates even though time and actual experience has proven them to be grossly inaccurate.

Issues with current Rules …
Until January 2000, Arizona operated under the auspices of EB12, as issued, implemented, and enforced by ADEQ. In January 2000, ADEQ fought and successfully got the Governor's Regulatory Review Council (GRRC) to approve what were initially referred to as "Unified Permit Rules," which became rule and law in Jan 2000. These rules replaced EB 12 (policy) as administrative law was subsequently revised with the revision becoming rule and law on 12 Nov 2005.

Until January 2000, ADEQ was not an active participant in any residential real estate re-sale transaction. The manner in which residential sales were conducted was the exclusive purview of the Arizona Department of Real Estate. Events leading to the enactment of the ADEQ Unified Permit Rule in 2000, foretell of buyers in many cases being duped into a patently false sense of
security respecting the current condition of the residential on‑site wastewater treatment and effluent disposal system installed on the property they were considering purchasing. Real Estate "disclosure" became a paramount issue in our neighboring state of California, wherein several Realtors it was determined by the California courts to be culpable and held liable for failing to disclose the actual current condition of the residential on‑site wastewater treatment and effluent disposal system. National Real Estate associations, including Arizona, began to lobby for the enactment of laws attempting to hold the "seller" accountable and liable. The Arizona real estate community, currently numbering some 50,438 members as of June 2006 per their website, exercises significant political muscle. The current ADEQ rule respecting the residential re‑sale septic inspection process is an acknowledgment of the political clout of Realtors. To its credit the residential real estate forms currently utilized by most seller/buyers included extensive revisions to the provisions delineating the "disclosure" of current actual conditions of the existing residential on‑site wastewater treatment and effluent disposal system.

Is there enforcement of the rule today..?
I July 06, occurs Saturday, with all aspects of the ADEQ rule affecting the residential re‑sale septic inspection to be fully implemented beginning effective the first business day ‑ Monday. So exactly what does this mean.? Were Shelley's real estate transaction to "close" on Tuesday, 2 July 06, would she receive a modicum of protection under the current ADEQ rule..?

In a word ‑ NO . . .

The current ADEQ rule fully implemented delineating residential re‑sale inspection and certification does not contain one provision for enforcement. The rule is designed so that the required inspection is a private transaction between the buyer and seller. If anything goes wrong, such as misrepresentations, as in Shelley’s case the ADEQ and the county have no role in correcting the situation and by design Shelley only recourse is a lawsuit at her expense. Apparently no one but the purchaser is accountable.

Per the current ADEQ inspection & certification rule, it is solely her responsibility to:
· Choose a Realtor
· Interview the Realtor to determine how knowledgeable they are respecting residential re‑sale septic inspection
· Choose an re‑sale septic inspector
· Determine if that re‑sale septic inspector is qualified
· Determine if that re‑sale septic inspector is "certified" by ADEQ
· Determine if that re‑sale septic inspector has any form of insurance, bonds, or other financial sources which can be attached in the event that inspection proves to be fallacious.


What might be the responsibility of the other players ‑ Realtor ‑ County Environmental Health Dept ‑ ADEQ ..?

The realtor is accountable to make sure all the legal paperwork is properly completed and all the spaces on their sales agreement are filled in and all the questions on their form are answered. The realtor is responsible under their code of ethic to "disclose" to all parties everything of relevance about the property. They can be held accountable via a law suit should they fail to disclose. Shelley could choose to appeal to the Arizona Association of Realtors and hope their ethics committee, assuming they have such a committee, finds in her favor and hold the Realtors accountable and financially liable. Shelley did appeal to the Arizona Association of Realtors and was summarily declined.

The current regulations are designed so that the County Environmental Health Dept and ADEQ have no part in the required process. It appears as though these parties have successfully divested themselves of any legal responsibility attached to the residential re‑sale septic inspection and certification process. These parties, who are essentially joined at the hip by virtue of delegation agreements between ADEQ and each of the respective 15 counties in Arizona, authorized the installation of the residential onsite wastewater treatment and effluent disposal system on every site in Arizona. Regulators would have you believe they did not, or that a large number of systems were illegally installed without permit, review or approval. Per ADEQ rule every residential on‑site system in the State of Arizona operates under a permit which they grant authorized and with effluent discharge parameters as well as O&M stipulated by ADEQ.

What is quite revealing as Shelley was acutely made aware, the septic system on the property she purchased, while through no fault of her own, went into a failure mode as defined by current rule. Documents presented to her at the close of escrow by the real estate community, in concert with the escrow companies, indicated that the wastewater treatment system she purchased was operational. Since it is not she could be physically removed from her property under penalty of law as a result of prevailing health codes. As Shelley discovered the game became one of finger pointing with ADEQ pointing out how inadequate Yavapai County Environmental Health Dept is while Yavapai County Environmental Health Dept pointed to the ineptness of ADEQ. Shelley expected to be protected by a system of laws and regulations and instead she was victimized.

Issues and Problems …

In western lore circling the wagons was an From the correspondence provided by Shelley from the Arizona Realtors Association and their legal counsel it appears they too seek to exonerate themselves from any accountability or responsibility associated with any facet of the residential re‑sale septic inspection program and process, by stating the individual employed is "certified," knowing all the while this arbitrary mantle is without honor and is totally bogus. What Shelley faced was a circling of the wagons by Arizona Government and Bureaucracy to thwart, obfuscate and deflect any perceived attack even in the form of questions. From the outset of Shelley's endeavor to discuss "why" there is no accountability or responsibility currently in place to enforce compliance designed to "hear" a private citizen. All of Shelley's efforts to date have fallen on deaf ears, closed eyes and minds of all regulatory bodies in Arizona.

Problem 1: REALTORS … in Shelley's transaction both are members of the Arizona Real Estate union which promulgates ethic standards so as to deliberately frustrate any private party form daring to file a complaint against the unethical action of any union member. In lock step the attorneys representing this union foster legal ruling (opinions) placing full responsibility on the private party to be fully cognizant of arbitrary and artificial time lines under which a private party can file again any union member. It seems to me this rationale presupposes a private party, like Shelley, has formed the requisite knowledge in advance of he conclusion of their sale to fully comprehend the ingenious aspects of Arizona real estate law. I submit to the average citizen this line of reasoning is totally unreasonable and unfathomable.

Problem 2: ADEQ … Shelley wrote a 15 Feb 06, letter to Brian Davidson, Ombudsman for ADEQ, she detailed the chain of events surrounding her sale, ending with a simple request and question to Mr. Davidson . " are there laws to protect me(Shelley) from this type of negligence" . In all the copies of all the correspondence which Shelley has provided to me, to date, I find no reply from Mr. Davidson.

Problem 3: Yavapai County …Yavapai County Environmental Health provided copies to Shelley of the original septic permit #27177, its authorization, approval and inspection signed by Leland Wieweck R.S. n 1987. What is frightening is as late as 26 March 06, Yavapai County Environmental Health continued to utilize fallacious "perc" rates as provided by the original developers some now over 20 years or more in age as the basis to grant approval to construct or repair septic systems in Yavapai County. Demonstrating her tenacity, Shelley, followed the paper trail leading to Leland Wieweck R.S., now a private contractor specializing in providing "perc" testing to local engineers such as Shephard‑Wesnitzer Inc Consulting Engineers of Cottonwood and Sedona. When Shelley requested information from Mr. Wieweck she was
summarily shown the door.

Currently county governments are choosing silence or finger pointing at ADEQ as exclusively and solely accountable for all aspects of the residential re‑sale septic inspection fiasco. This in my assessment is totally self‑serving on the county's part as they most assuredly have options which they can pursue should they honorably want to opt themselves from any accountability in this process. All county environmental health departments operate pursuant to delegation agreements, a legal contract, between themselves and ADEQ. Each county is free to terminate its agreement thereby transferring all responsibility solely to ADEQ. Every county environmental health department is culpable in every aspect of the current residential re‑sale septic inspection program.

Problem 4: Meaningless Certifications …As I understand current Registrar of Contractor rules and regulations there is not a requirement or category regarding an individual such as Mr. Wieweck to be licensed, bonded, or insured. Mr. Wieweck is therefore free to conduct business in any manner she sees fit without any governmental oversight.

Governmental agencies such as Yavapai County Environmental Health are free to accept and utilize Mr. Wieweck's "perc" test results passing them off to an unsuspecting public as bona‑fide. When the ."shit hits the fan" however Yavapai County Environmental Health will summarily pass the buck to Mr. Wieweck attempting to exonerate itself from any accountability, liability, or responsibility. This is the same rationale Shephard‑Wesnitzer Inc Consulting Engineers will use should they be challenged on any perc rate provided to them by Wieweck, even though their plans are submitted and sealed by currently licensed Professional Engineers in their employ.

Problem 5: Faulty Regulations … All purchasers and buyers of any Arizona residential property are today subject to being victims of the ADEQ created residential re‑sale septic inspection process. ADEQ has current rules in place calling for ALL individuals who profess expertise as an inspector of residential septic systems for re‑sale to be "certified." . This ADEQ system operates solely on the "honor" system with no oversight what so ever. Even if the rules did contained a compliance management component there are no state or county resources to support such a process.

As currently identified in ADEQ rule the re-sale septic “certifying” inspection training agent is the University of Arizona, under the auspicious of Kitt Farrell-Poe Ph. D., and a private organization known as National Association of Waste Transporters (NAWT). This training program, taught by NAWT instructors, is national in scope thereby understandably “generic” in nature. While well intended this NAWT training utilizes soils and topographic features which prevail in the Midwest, principally Minnesota, as that is where the primary NAWT instructors reside and work. This NAWT training is therefore not reflective of the actual site, soils and topographic conditions in the southwest. This by no means, in my assessment, demeans the basic information provided by the NAWT training which when properly utilized forms the crucible of the information necessary to deliver a viable inspection of any standard conventional gravity septic system.

Others in these residential real estate transactions, i.e. Buyer – Sellers – Inspector – blindly accept that somewhere in this process they are protected. Only when they find themselves in need of establishing accountability and responsibility are they required to face the prevailing current reality – you’re on you own. The problems and issues enumerated above should be corrected. Because ADEQ has issued these regulations TWICE in the last five years and the problems have not been solved we believe immediate legislation is appropriate.


Respectfully submitted,

Paul F. Miller