Cesspools: Phasing In the Phase Out

In the best of times, it’s hard to find anyone saying anything good about cesspools.

And this is hardly the best of times for cesspools.

Not Much Good To Say

The Rhode Island General Assembly passed legislation in 2007, R.I. Gen. Laws 23-19.15 -1 et seq., ordering the phase out of thousands of cesspools, finding:

•  cesspools are substandard and inadequate for sewage treatment and disposal
•  many cesspools contribute directly to groundwater and surface water contamination
•  wastewater disposed from cesspools contains bacteria, viruses, and other pollutants

Ouch!

Targets

The legislation targets the following cesspools for oblivion:

•         cesspools which have failed
•         cesspools on property where a sewer stub is available
•         cesspools within 200 feet of a public drinking water well or surface water supply
•         cesspools within 200 feet of the inland edge of a shoreline feature bordering tidal water

While no one knows how many cesspools have failed, it has been estimated that of the over 50,000 cesspools in Rhode Island,  approximately 4,000 are estimated to be in the State’s coastal zone.

It is safe to say that this is an issue that will affect a good number of Rhode Islanders.

Phase Out Schedule

The current legislation provides the following schedule for removal of targeted cesspools:

•        failed cesspools– within one year of discovery or sooner if  an imminent health hazard
•        cesspools on property with a sewer stub– within one year of sale of the property
•        cesspools within 200 feet of tidal coastal features or a water supply — January 1, 2013.

These deadlines can be extended for up to five years for undue hardship.

The Department of Environmental Management has promulgated draft regulations to begin the phase out of targeted cesspools, which will go for public hearing on May 27, 2010. (See in particular Rule 53)

Costly Consequences

The consequences of being required to abandon a cesspool are not inconsequential.

Perhaps the best scenario is where a sewer tie in is readily available. That may be relatively cost-effective.

However, if  sewers are not available,  the property owner must install a conventional individual sewage disposal system, the cost of which could run from $10,000 to $15,000. However, if the property is located in a sensitive environmental area, high tech denitrification systems may be required, and that could cost from $20,000 to $30,000.

Recognizing Hardships

The legislation authorized the Department to grant limited waivers, up to five years from statutory deadlines, if the homeowner demonstrates “undue hardship”. The draft regulations define undue hardship as

“having an annual income of less than or equal to eighty percent (80%) of the appropriate household size area median income determined by federal Housing and Urban Development standards for the community within which the cesspool is located.”

While people often think of waterfront property as where the wealthy live, in Rhode Island there are also a lot of people of average means who live within 200 feet of tidal water in cottages and modest homes, many of which may be serviced by cesspools.

Many of these people may be unable to afford the cost of upgrading to new systems if sewers are not available. And while there are loan programs, these are not available in all communities or in all areas of those communities where the loan programs may exist.

Having talked with the top DEM professional responsible for administering the cesspool phase out program, I am confident the Department recognizes that cost of replacement may be an issue and that it is sensitive to the burden the legislation may impose.

Depending on the experience in implementing the program, it is possible that the definition of undue hardship may have to be revisted by the Department or that the General Assembly may have to reconsider the deadlines it has imposed  by statute. This may be particularly so where systems at issue have not failed.

While there may be few goods things to say about cesspools, there will be far fewer good things to say about politicians who try to force homeowners to close cesspools they can’t afford to replace.