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Title V Problems
“LIES, DAMN LIES, and STATISTICS”
David Struhs has made another attempt to justify the misery and chaos his poorly conceived Title V revisions have caused (24 M.L.W. 1375). His argument is nothing more than a series of unquantifiable or unsubstantiable assumptions. He refers to a previous "independent" study, by UMass, to imply that his following assertions have the authority of UMass behind them, but the study he cites was prepared by DEP to refute the BHI criticisms. This is a polemic study conducted to justify his forgone conclusions. He asserts that "it is this type of 'nonpoint' pollution that is now, in too many cases, standing in the way of [Mass citizens'] constitutional right" to clean water. This assertion raises several questions, in addition to implying that clean drinking, swimming, and fishing water is a fundamental right of the Massachusetts Constitution: Is he saying that septic systems are causing all (or most of) the nonpoint pollution? If so, how is this determined? Or is this precisely why it is called "nonpoint" - because no one can tell exactly where the contaminants are coming from. How clean is clean enough when talking about septic system discharge? Prior DEP standards for septic system construction have all promised to effect clean discharge; now they are not good enough. Property owners have rights too, especially when they bought homes in good faith with septic systems which were functioning in accordance with the law only a few years ago, and now fail. The cost to effect marginal improvements in discharged waste water is disproportionately high; it is always a value judgment to determine how much is enough. He then asserts from the study that the annual cost of implementation is $26.3M per annum. However, the first fact I can find in his article is that there were 26,000 private septic system inspections last year. My experience has been that a low average cost for a Title V inspection is $1000. This alone reflects an annual cost of $26M, which makes his first assertion demonstrably false. Then he says that only 1/4 of those needed upgrades (does this mean more than repairs?), half of them "inexpensive" (what is "inexpensive to him?), half of them not. The average, he says, is $6200. Well 6500 * $6200 is $40.3M. We are now up to approximately $66M ($26M + $40.3M = $66M). Struhs adds these numbers up to $50M. But, he says, the first year cost will go down, based on a projected average life span of 20 years for a septic system. Where did that number come from? A common industry standard estimate is an average life of seven to ten years for a subsurface disposal system. Moreover, according to the DEP (telephone call Mar 29), there are an estimated 650,000 private residential septic systems statewide, which means that only 4% were tested last year. Assuming an average life of ten years, 65,000 systems will have to be tested every year, for an annual cost of $65M just for inspections. This does not even include the cost of reinspections. Using the DEP failure rate, 1/4 of 65,000 systems annually will have an average repair cost of $6200, which is an annual cost of over $100M. But, a predicted life for a system implies that every system will fail and need extensive repairs. This would imply that an average of 65,000 systems will also need to be repaired every year under these regulations. Using his estimate of $6200, a dangerously problematic assumption given DEP's accuracy so far, the cost will average over $400 Million annually for repairs, plus $65 Million for inspections, plus reinspection fees. Repair costs might go down due to system upgrades, as Mr. Struhs promises. But how many of the failed septic systems were homes built within the last few years to code at the time of construction and not acceptable now? Counting on Mr. Struhs promises that this year's acceptable repairs will be the last upgrade required strains credibility. This is the same Mr. Struhs quoted in the Globe (June 9, 1995, p. 10) as saying that many of the people complaining about the Title V regulations live in "homes that should not have been built". Struhs' benefits analysis fails similar scrutiny. The "DEP estimates that 55,685 acres [of shellfish] are contaminated to some degree by septic systems" (emphasis added). This is ludicrously suspect on its face. There is no attempt to calculate what percentage of this "nonpoint" pollution comes from septic systems. DEP "estimates" $2,628,000 in lost annual revenues - a claimed 4 significant digits based on a percentage of contamination multiplier of zero significant digits. Did it ever occur to them to consider what percentage of the seashore pollution might be caused by the more proximately located municipal sewage systems, which dump raw sewage into the ocean when there is too much flow to handle or it rains too much. Heavy rains also cause storm drains to wash pollutants from the roads into the riverways and ocean. Even if the estimated lost revenues were not a bogus number, it would seem that a very small percentage is attributable to private septic system pollution, and the half billion dollars a year it may cost to comply with these regulations will do little to improve this pollution. Where does the blithe estimate of 14% of lake and pond pollution from septic systems come from? 14% is not a lot - is this the same percentage caused by private systems of "nonpoint" pollution of the clean drinking water which our citizens are constitutionally entitled to? In the computer business such numbers are called GIGO - garbage in, garbage out. I would call these DEP estimates bovine scatology - or words to that effect. However, the really significant statistic is immesurable - the number of homeowners afraid to have their septic systems tested, afraid of a large bill to repair which they cannot afford, or a large repair such as a mounded system which eviscerates the marketable equity they had in their home, or of outright failure, requiring a collection tank system which destroys a home's value completely. These homeowners are afraid to do anything with their homes - even invest in normal remodeling. In the summer, even after the economic slumps of '91 and '92, you could drive around the south shore and hear the Skilsaws and see the signs of remodeling. 94 was a banner year, with a Globe article in the fall describing homeowners waiting up to a year to get a contractor. In 1995 Title V silenced the Skilsaws and blew the bottom out of the remodeling business in 95, far more than it affected the housing market. The trickle down economic effect is much larger than the direct costs; historically, a depression in the remodeling market, just like fluctuations in the building business, has a multifold effect on the overall economy. The fear factor is immeasurable. The chaos which this unelected and unaccountable bureaucracy has brought upon us is costly to many, tragic to some. The insult of DEP's post hoc attempts to justify by manipulated statistics the huge damage their poorly conceived regulations have caused is egregious. "Governments are instituted among Men, deriving their just powers from the consent of the governed." (Declaration of Independence, par 2). In the days of the founding of this nation, the framers worried about usurpation of power by the legislature. Never did men such as Madison and Hamilton foresee a tyranny of unelected bureaucrats, the "headless fourth branch" of government. In a time when all of government is looking to cut back services, many of them arguably "essential", because we cannot afford the cost, we need to take a hard look at whether we need men such as Mr. Struhs burdening us all with huge hidden costs of arguable benefit which dwarf the savings we can effect by budget cuts. The budget cut I would favor is getting rid of Mr. Struhs. J. Marlin Hawthorne, Esq. All rights reserved. John Marlin Hawthorne is a solo practitioner in Hanover, Mass., specializing in business law and related matters. A former real estate developer, broker and construction contractor for over 20 years, he has also been a licensed septic system installer. |
