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HomeMy WebLinkAbout98-382 RESOLUTION NO. 98-382 A RESOLUTION SETTING FORTH MOHAVE COUNTY'S COMMENTS TO THE GOVERNOR'S REGULATORY REVIEW COUNCIL CONCERNING THE ARIZONA UNIFORM PLUMBING CODE AS DEVELOPED BY THE ARIZONA UNIFORM PLUMBING CODE COMMISSION. WHEREAS, at their regular meet'rog on October 5, 1998, the Mohave County Board of Supervisors considered approving comments on the Arizona Uniform Plumbing Code as developed by the Arizona Uniform Plumbing Code Committee, and WHEREAS, the forty-third legislature of the State of Arizona adopted Chapter 112 of the Laws of 1997 creating an Arizona Uniform Plumbing Code Commission and required that the initial statewide plumbing code be based on the 1994 Uniform Plumbing Code, and WHEREAS, Chapter 112 of the Laws of 1997 required the Arizona Uniform Plumbing Code Commission to make rules for the Arizona Unifom~ Plumbing Code no later than May 1, 1998, and WHEREAS, Chapter 112 of the Laws of 1997 required Arizona counties adopt the Arizona Uniform Plumbing Code no later than August 1, 1998, and WHEREAS, the rules developed by the Arizona Uniform Plumbing Code Commission duplicate regulations administered by the Arizona Department of Environmental Quality without providing any relief or alternatives to the dual regulatory system, and WHEREAS, the rules developed by the Arizona Uniform Plumbing Code Commission amended the 1994 Uniform Plumbing Code without adequate justification and thereby created a potential health and safety risk to the residents of Arizona, and WHEREAS, all rule maJ~ing must be submitted to the Governor's Regulatory Review Council along with an economic, small business and consumer impact statement pursuant to A.R.S. 41-1055, and WHEREAS, the Arizona Uniform Plumbing Code Commission submitted the proposed rule to the Governor's Regulatory Review Council on September 15, 1998 and the Council will be holding a public hearing on the rule on November 3, 1998, and WHEREAS, A.R.S. 41-1051 provides for comments addressing the seven findings the Council must make before approving the adopted rules, and RESOLUTION NO. 98-382 Page 2 WHEREAS, the seven findings must be based on information, data and analysis contained in the economic, small business and consumer impact statement, and WHEREAS, the economic, small business and consumer impact statement submitted to the Governor's Regulatory Review Council is flawed at its foundation and, therefore, cannot be complete or contain accurate information, data or analysis; further, the impact statement cannot contain accurate conclusions or findings. NOW THEREFORE BE IT RESOLVED, that the Mohave County Board of Supervisors believes that it is in the best interest of Mohave County for the Board to comment to the Governor's Regulatory Review Council concerning the Arizona Uniform Plumbing Code. BE IT FURTHER RESOLVED, that the attached Exhibit A forms the basis of Mohave County's comments to the Council and that the Mohave County Board of Supervisors believes that the proposed Arizona Plumbing Code creates a dual regulatory and administrative system for gray water and septic tank systems that is onerous and unnecessary, and that the economic, small business and consumer impact statement is flawed in its assumptions and therefore is insufficient and inaccurate. BE IT FURTHER RESOLVED, that the Mohave County Board of Supervisors strongly recommends that the Governor's Regulatory Review Council not approve the adopted role developed by the Arizona Uniform Plumbing Code Commission for the reasons stated in Exhibit A of this resolution and that the adopted rule, the preamble and the economic, small business and consumer impact statement be returned in its whole to the Arizona Uniform Plumbing Code Commission. so s Pa EXHIBIT A BOS RESOLUTION NO. 98-382 MOHAVE COUNTY COMMENTS TO THE GOVERNOR'S REGULATORY REVIEW COUNCIL ARIZONA UNIFORM PLUMBING CODE DEVELOPED BY THE ARIZONA UNIFORM PLUMBING CODE COMMISSION 1. The economic, small business and consumer impact statement contains the information, data and analysis prescribed by this article. The economic impact statement was based on a set of erroneous parameters that kept the true impact from being assessed. Paragraph three in the introduction lays out the basic assumption used in the statement's analysis. The assumption being that all local jurisdiction in Arizona have adopted the 1994 Uniform Plumbing Code promulgated by IAPMO in its entirety, including appendices, and that code is in force throughout the all geographic areas of Arizona. This is simply not true. Many jurisdictions, including Mohave County, did not adopt Appendices'G' Graywater Systems for Single Family Dwellings and 'I' Private Sewage Disposal Systems. Further, some Arizona counties have adopted the uniform codes for only part of the geographic area under their jurisdiction. The narrow parameters set by the statement's basic assumption prevented the statement from fully addressing the following items required by A.R.S. 41-1055.B a. The probable costs and benefits to a political subdivision of this state directly affected by the implementation and enforcement of the proposed rule. b. The probable costs and benefits to businesses directly affected by the proposed rule making, including any anticipated effect on the revenues or payroll expenditures of employers who are subject to the proposed rule making. c. The probable impact of the proposed role making on small business, including: 1) the administrative and other costs required for compliance with the proposed rule making; 2) a description of the methods that the agency (or local government) may use to reduce the impact on small business. d. A description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule making. Chapter 112 of the Laws of 1997 created the Unifom~ Plumbing Code Commission; it did not change the Arizona Department of Environmental Quality's responsibility for sewage disposal. ADEQ handles the administration of on-site sewage disposal systems through a series of delegation agreements with counties. Since the legislature did not repeal that responsibility, the administration function and rules remain with ADEQ. By adopting appendices G and I, the AzUPCC created a dual, uncoordinated system. Because the EXHIBIT A Page 2 parameters of the statement were so narrowly set, the costs and benefits of that dual system on consumers and local govemments were never analyzed. The statement just assumes that the dual system currently exits and therefore will not be an additional cost. Local governments in Arizona have purposely and effectively avoided a dual system; it does not exist in Mohave County. Less intrusive or less costly methods to the dual regulation of gray water and septic systems were not addressed. Arizona's local governments have been using less intrusive and less costly systems for over a decade. Because the commission did not address the dual systems, alternatives were not identified. 2. The economic, small business and consumer impact statement is generally accurate. As pointed out in item 1 above, the impact statement limited the scope of analysis to such a narrow parameter that the larger impacts were not addressed. Since the affect of dual regulatory and administrative systems in the area of gray water and septic tanks was not analyzed, the impact statement could not accurately assess the impact of the rule on small business and consumers. 3. The probable benefits of the role outweigh the probable costs of the rule. Since the impact statement did not fully analyze the costs and benefits of the dual system for gray water and septic systems, the conclusion that the benefits outweigh the costs is suspect. 4. The rule is clear, concise and understandable The rule creates a dual set of technicaI standards. R4-48-102.A incorporates all of the appendices into the AzUPC, including Appendices 'G' Graywaler Systems for Single Family Dwellings' and 'I' Private Sewage Disposal Systems. The Environmental Quality Act of 1986 gives the Arizona Department of Environmental Quality (ADEQ) authority to regulate all waste water treatment and disposal systems ~vithin the State. ADEQ's Bulletin #12 Minimum Requirements for the Design and lnstallation of Septic Tank Systems and Alternative On-site Disposal Systems and the proposed AzUPC Appendix i conflict in regard to the technical requirements for the design of septic tank systems. Change No. 74 of the AzUPC allows corrosion protection to be achieved "by construction with a concrete mix incorporating [15%] to [18%] fly ash" Bulletin #12 states that 15% to 18% fly ash may be used "if adequate documentation is submitted by the manufacturer to demonstrate satisfactory tank sealing." The local building officials could be approving tanks that would be rejected by ADEQ inspectors. Which standard governs? Is it the most stringent, or are the two totally independent? ADEQ Bulletin #12 requires disposal pits to be of not less than three (3) feet in excavated diameter. AzUPC Change No 76 requires an excavated diameter of not less than four (4) feet for seepage pits. EXHIBIT A Page 3 Which governs? Which is most stringent? AzUPC Change # 81 allows septic tanks within five (5) feet of buildings and water service lines. Bulletin #12 requires ten (10) feet separation in both instances. The demonstrated disparities between the proposed AzUPC and Bulletin #12 makes it unclear and ambiguous as to how to properly enforce installations of on-site waste water systems 5. The rule is not illegal, inconsistent with legislative intent or beyond the agency's statutory authority. The rule created by the AZUPCC is illegal, is not consistent with legislative intent and is beyond the agency's statutory authority in three respects. a. Chapter 112 of the Law of 1997 created the AZUPCC and instructed the commission to use the 1994 Uniform Plumbing Code as the basis for the state's first uniform plumbing code. It did not repeal ADEQ's responsibility for regulation and administration of sewage disposal systems, including on- site systems. In adopting appendices G and I, the AZUPCC has assumed regulatory authority over on-site systems, creating a dual system. By necessity, local governments must create dual administrative systems, or creatively avoid them through Intergovernmental Agreements, etc. The regulatory requirements created by the adoption of appendices G and I are not coordinated with the ADEQ rules and guidelines, and, in some cases, conflict with those rules and guidelines. Mohave County does not believe that the creation of a dual, uncoordinated regulatory and administrative system was the intent of the 43rd legislature when it created the AzUPCC. That legislature and the gubernatorial administration have aspired to reducing regulatory and administrative requirements and costs. The dual system flies in the face of the aspiration. b. Change No. 71 requires all septic tank installation to be supervised by an engineer registered in the State of Arizona. A.R.S.41-619.B.3 specifically prohibits the AzUPCC from including any provision pertaining to licensing in the state plumbing code. c. Change No 55 allows domestic dishwashers to be installed without the use of an 'airgap fitting.' The Uniform Plumbing Code, Section 807.4, specifically requires such a fitting be installed. The UPC Interpretation Manual, page 235, explains, "this requirement was added a number of years ago based on the knowledge that a domestic dish washer was not only a washer, but was frequently used as a storage compartment for clean dishes which were allowed to dry in a sterile atmosphere and therefore, this appliance should be connected in such a manner that there would be no possibility of sewage, waste water, garbage, or other contaminates entering the storage chamber." The Concise Explanatory Statement compiled by the AzUPCC provides no explanation of how the removal of the requirement for an airgap fitting better provides for the public health, safety, and welfare of the citizens of Arizona than the existing language in the 1994 Uniform Plumbing Code. Mohave County does not believe the intent of the legislature was to adopt a 'minimum' plumbing standard to protect the health, safety and welfare of the citizens of Arizona and then weaken it to approve insanitary installations as described above. EXHIBIT A Page 4 CONCLUSION As explained, the Economic Impact Statement fails to address the impact of dual permitting, fees and inspection requirements resulting from the simultaneous jurisdiction of ADEQ and the AzUPC; the adopted rule is not clear, concise and understandable because of the numerous conflicts with ADEQ requirements; it is illegal as it requires registered engineers to inspect graywater and on-site waste water systems and creates dual requirements with ADEQ; and does meet the intent of the legislature because of creating insanitary conditions contrary to the purpose of the code. In view of the foregoing, Mohave County strongly urges the Governor's Regulatory Review Council not to approve the adopted rule, preamble, concise explanatory statement, and economic, small business and consumer impact statement, but to return the adopted rule in its whole to the Arizona Uniform Plumbing Code Commission.