HomeMy WebLinkAboutM052109JEFFERSON COUNTY BOARD OF HEALTH
MINUTES
Thursday, May 21, 2009 2:30 PM — 4:30 PM
Health Department Conference Room, 615 Sheridan Street, Port Townsend
Board Members Staff Members
Phil Johnson, County Commissioner District #1 Thomas Locke, MD, Health Officer
David Sullivan, County Commissioner, District #2 Jean Baldwin, Public Health Services Director
John Austin, County Commissioner, District #3 Julia Danskin, Nursing Services Director
Michelle Sandoval, Port Townsend City Council
Sheila Westerman, Chair, Citizen at large (City)
Chuck Russell, Vice Chair, Hospital Commissioner, District #2
Roberta Frissell, Citizen at large (County)
Chair Sheila Westerman called the meeting of the Jefferson County Board of Health to order at
2:30 PM.
Members Present: John Austin, Roberta Frissell, Phil Johnson, Chuck Russell, David Sullivan,
Sheila Westerman
Absent: Michelle Sandoval,
Staff Present: Dr. Thomas Locke, Julia Danskin
A quorum was present.
APPROVAL OF AGENDA
Member Russell moved and Member Austin seconded for approval of the agenda. The
agenda was approved unanimously.
APPROVAL OF MINUTES
Member Austin moved for approval of the minutes of April 16, 2009; Member Sullivan
seconded. The minutes of April 16, 2009 were approved unanimously.
PUBLIC COMMENTS
There were no public comments.
OLD BUSINESS and INFORMATIONAL ITEMS
Member Austin announced that the State Board of Health may stop by for a brief visit during this
BOH meeting.
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Correspondence to Health and Recovery Services Administration
Dr. Locke briefly reviewed the April 22 letter from Jean Baldwin and Ford Kessler to Doug
Porter, Health and Recovery Services Administration, regarding potential reduction of County -
level prevention services and anticipated adverse impacts if this does occur.
NEW BUSINESS
Appeal Hearing: Denial of Waiver Request for a Holding Tank on Parcel # 701 185 009
Chair Westerman opened the hearing. Member Sullivan inquired as to process and asked
whether there was a script for Chair Westerman to follow. Dr. Locke explained that he would
begin by briefly describing the case, which would be followed by a presentation by the appellant,
Mr. Thomas Brotherton. The hearing would then be open to questions and discussion by the
BOH. The Board packet contained a collection of documents submitted by the Health
Department and the appellant.
Dr. Locke reviewed the history of this case, beginning with the NOCV (Notice and Order to
Correct Violation) in October, 2008 followed by the waiver request for use of a holding tank for
non-commercial, residential use filed in November, 2008. He explained that Washington State
does not allow holding tank use for residential use. Local health officers have the authority to
waive requirements of State public health codes, if it is determined that the waiver application
meets the intent and standards of that code. The appellant had every right to seek a waiver, the
arguments for which are set out in the documents included in the packet. Dr. Locke said his
conclusion, after careful consideration and reconsideration at each step of the process, is that use
of a holding tank does not meet the intent and standards of the State on-site septic code. The
primary purpose of the code is public health protection. He noted that although protection of the
environment is also important, the primary basis for the code is protection of people. The
specific technical standards are directed at treatment and disposal of waste. At this site, there is
an alternative readily available, and that is to connect to the existing on-site system. Dr. Locke
said that he had polled the Environmental Health Directors across the state and none of the
respondents allowed holding tanks for residential use or for RVs on residential property. Mason
County does allow holding tanks for certain types of RVs with restrictions. For Park Model
trailers, Mason County requires a building permit and does not allow use of holding tanks.
Chair Westerman sought clarification on the basis of the distinction between commercial and
residential use of holding tanks. Dr. Locke said that commercial applications include, for
example, seasonal recreation vehicle parks where holding tanks can be monitored and pumped
on a regular basis. There are also uses of holding tank applications at short-term project
locations where the tank will be removed at the close of the project. Staff noted that holding tank
permits are sometimes used at State and County Parks. In Jefferson County, there are no permits
for commercial operations at this time. Holding tanks may be permitted as a temporary or
emergency solution when failing septic systems are being repaired. For residential wastewater
disposal, the goal is to dispose of sewage on-site, which also has the benefit of aquifer recharge
at the location where water is drawn.
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Dr. Locke said that in the final analysis, there is an excellent alternative for the appellant, and
that there is no compelling reason to grant a waiver from the requirements of the state on-site
sewage code.
Member Sullivan asked for clarification on the status of the holding tank and when it was
installed. Dr. Locke said that the tank had been installed prior to the application for waiver. He
had agreed to place further enforcement action on hold during the waiver application and
administrative review process. He said the goal is to make every effort to help solve the
problem.
Chair Westerman then asked the appellant, Mr. Thomas Brotherton, to present his case. Mr.
Brotherton stepped through a 25 -slide presentation entitled Appeal to the Health Board: Public
Health Department Denial of Request to use a Holding Tank Sewage System at a part-time use
RV.
Mr. Brotherton explained that when he decided to purchase and install his Park Model RV (420
square feet) and holding tank he had made an erroneous assumption about the State and County
regulations with regard to the holding tank. He stated that he and his wife are well educated, and
had thoroughly considered the use and capacity issues before installation. They believed they
were making reasonable, responsible choices.
Mr. Brotherton reviewed his understanding of the State and Jefferson County regulations and of
the procedural background of this case. He identified two policy issues: 1) Should the County
follow the State regulations for on site septic systems and 2) Should holding tanks be the
preferred OSS (On-site Sewage System) for part-time usage situations?
Mr. Brotherton then provided a brief history and overview of septic system design and use. He
discussed the evolution of design issues and features of septic systems over time. He said the
Washington State OSS rules are actually "Design Requirements" based on soil characteristics,
load and site dimension/topography. He reviewed the purpose and content of WAC 246-272A-
001, and its references to RCW 43.20.050; RCW 43.70.310; RCW18.210 and WAC 196-33.
He also reviewed WAC 246-272A-0420, Waiver of State regulations.
Mr. Brotherton said that he had concluded that the term "waiver" is inappropriate, and is
inconsistent with the way the State uses the "waiver" process. That is, it is used to address
uncommon applications, where the standard OSS requirements do not fit. He discussed the Class
A, "pre -approved' waiver; he said the State automatically approves this waiver if certain
conditions are met. He said that the alternative must still meet the health protection requirements;
it is not a lesser solution. He questioned why Jefferson County has a policy that follows only
part of State rules.
Mr. Brotherton reviewed his interpretation of the State's "pre -approval", provided that certain
conditions are met. He said that the County does not follow that portion of State code.
The second major issue Mr. Brotherton discussed is whether or not holding tanks should be the
preferred OSS for part-time usage? First, he reviewed the "worst case scenario" that is
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frequently cited as the justification for not allowing holding tanks, stating that this failure
situation has never happened. He noted that holding tanks have no design issue because they do
not discharge to the environment, and that the waiver rules are intended to ensure that they are
properly operated.
Mr. Brotherton said that he wishes to be as environmentally sensitive as possible, and that being
forced to connect to his existing septic system will cause more pollution than use of a holding
tank. He said it is not a question of cost, but of adding more pollution to the environment than
necessary. He said the BOH is charged with protection of the environment as well as the health
of the public.
He cited studies by the EPA showing the effectiveness of septic systems in removing fecal
coliform, phosphorus and other contaminants versus a holding tank, assuming contents are
hauled to a community sewage system for treatment. He also reviewed the design and operation
of a typical septic tank, noting that that an installed system does not perform optimally for the
first few months of operation. In addition, he said they do not perform well when not used
regularly, steadily and continuously. He reviewed concerns about septic systems and the factors
which can contribute to septic system failure.
Mr. Brotherton reviewed the comparative 20 year costs of septic systems versus holding tanks.
He said that for his own situation the costs would be comparable, i.e. in the same range. In
summary, he said that for "occasional use" situations, a holding tank is the only environmentally
sound solution.
In closing, Mr. Brotherton requested that the BOH adopt two policies: 1) "Jefferson County
Public Health shall follow the state regulations for On Site Septic Systems and approve those
waiver applications for WAC 246-272A which meet the state conditions." and 2) "Holding tanks
shall be the preferred OSS for part-time usage situations where the average inactive period is
greater than 4 weeks."
Chair Westerman opened the floor to questions from the BOH. Member Johnson requested
clarification on Mr. Brotherton's statement about the total absence of holding tank failures in the
State. Mr. Brotherton said that he had spoken with a State official (Mr. Roosevelt) who said he
had no recollection or records of such a failure. Mr. Brotherton stated that the EPA estimates
that more than half of all installed septic systems are not functioning properly. He cited an
example in Brisbane, Australia, where water pollution problems led to the discovery that 80% of
the septic systems were not functioning properly. He repeated his assertion that a septic tank
solution in his case was not the best solution. He said that if State code is interpreted properly,
and if the intended meaning of "waiver" is recognized, he should be granted the right to the
holding tank solution.
Chair Westerman said that in her reading of this issue, she believes the State is using the term
waiver in the same way one would use the term conditional use permit. She cited her experience
with the process of conditional use permits and participation in City Council hearings. She said
that this applies to circumstances in which a permit applicant cannot meet the current
regulations, and that is what is being dealt with in the "waiver policy" issue under discussion.
She said that the working policy provides that meeting the current regulations is preferred. If
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not, then there is a process to follow for determining a possible alternative. She said she did not
wish to allow this body to become distracted from the essential issues.
Chair Westerman referred to reference 76, page 54 of 65, Washington Department of Health
publication number 337-006. She pointed out that this permitting information appears in several
places in the packet. She cited the passages under 2. 1.1 Emergency Use and 2.1.2 Permanent
Use, i.e. where the local health officer may permit Holding Tank Sewage Systems. She said that
although the state waiver system may be somewhat confusing, this section clearly indicates when
a holding tank solution may be permitted, and that this case does not fit those conditions. She
said she was impressed with the appellant's presentation, but that this section shows why the
holding tank is not permissible: it is not an emergency, it is not a part-time commercial use
situation, and it is not a repair of an on-site sewage situation. Chair Westerman said she agreed
with much of what the appellant had said about the effectiveness of municipal sewage
treatments. She also said that septic systems are very effective when properly designed and
maintained. She also noted that there are monitoring and enforcement issues for both septic and
holding tank scenarios. She said that she believes there have been few or no failures of holding
tanks because very few have been permitted, and that they have generally been discouraged.
Lastly, she said that she would support the Health Officer's decision.
Mr. Brotherton stated that there are built in guarantees that his holding tank would be in
compliance and safe. He referred to the Waiver Application Guide and the requirement that his
system would be inspected by a licensed inspector. He said he had signed a contract to that
effect.
Dr. Locke said that there is a semantic misunderstanding, but it is not with regard to the issue of
waiver, but of pre -approval. He said that prior to 1994 the State Department of Health had to
approve any waiver granted by a local health jurisdiction. This authority was removed by the
Washington State Legislature in 1994. Under the current rules, the decision rests with the local
jurisdiction. The power of the State is to review these waivers and if they determine there is a
pattern of misuse of the waiver authority, they may withdraw the ability for that local jurisdiction
to grant waivers. For so called "pre -approved waivers", the conditions cited are the minimum
criteria that must be met for the state to consider the waiver to be appropriate. The fundamental
responsibility to make the decision of whether or not the waiver meets the intent and standards of
the code lies with the local health officer, not the State. He added that he did not believe that
anyone at the State Department of Health would say that Class A waivers are a guarantee or
entitlement that anyone who meets the standards will receive a local waiver. It is up to the local
health officer to review the specific conditions of each case and approve or deny a waiver based
on these case -specific circumstances.
Dr. Locke also addressed the issue of hauling waste to treatment facilities on either a large or
small scale. He noted that although the environmental impact is not the primary focus of on-site
sewage codes, it is incorrect to assume that use of holding tanks has a smaller carbon footprint
and less adverse environmental impact than on-site systems. Holding tanks require commercial
pumpers to physically transport wastewater to treatment facilities, consuming large amounts of
fossil fuels. He also noted that the pumped/hauled waste is not always treated at a treatment
facility with optimal processing, such as the Port Townsend municipal facility; the destination
facility is determined by the pumper. The consistent policy of the State is that holding tanks
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have very limited application. He said the way to lower the environmental impact is to ensure
that the main septic system on the property is working at peak efficiency. He also noted that the
"start up" issue mentioned by the appellant is avoided when wastewater is combined with an
existing system.
Member Austin asked for clarification on whether the appellant would be required to install/
upgrade to a new septic system or simply connect to the existing one. Dr. Locke said there are
two options. Mr. Brotherton has the legal right to build a free standing septic system, since there
are adequate soil conditions and adequate acreage. A more cost effective solution would be to
tie into the existing system.
Mr. Brotherton stated that his current system is designed for a 2 bedroom house and he had
reservations about placing greater demand on that system. He also said he did not wish to be
forced, in effect, by the government to add additional pollution to the environment.
There was a question from Member Johnson about the authority for the State rules. Dr. Locke
said that, in the document referenced above (DOH publication 337-006), there is a restatement of
WAC 246-272A which does have the force of law.
Member Russell stated that he agreed with Chair Westerman's comments and citations, and
pointed out the importance of the previous sentence in the same section: "The local health officer
may permit Holding Tank Sewage Systems only in the following cases:"
In response to a question from Member Johnson, Dr. Locke said that the holding tanks in this
setting are very clearly prohibited by State code. Exceptions or waivers to that policy can be
made by the local jurisdiction on a case by case basis. In this particular case, Dr. Locke said his
decision is that the case does not meet the criteria for this type of waiver, so the State law stands.
The intent of the code is to assure the safe local disposal of waste water generated on the site and
disposed of on the site, unless connected to a sewer system.
Mr. Brotherton asked Dr. Locke to point out the code source for the above named intent. Dr.
Locke said that goal is embodied in the whole code and is the reason for the existence of the
code and its detailed operational standards. He said the standards are specific design
requirements. The standard for holding tanks is that one may not use a holding tank in a
residential setting.
Mr. Brotherton stated that the above is only a partial statement; a complete statement would be
that one may not use a holding tank in a residential setting, unless ..... He said such a statement
is not in the code because the State is not allowed to make partial solutions. He said that
everything the State approves must meet the requirements. He said his entire concern is the
assumption that the citizen will not comply with the regulations.
Member Sullivan stated that the County does not have the capacity to manage these types of
exceptional situations now or in the future to ensure that the intent will be followed. He said the
County must treat everyone the same and cannot create a system to accommodate these special
situations.
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Chair Westerman referred to packet log 158, page 50, i.e. the text of WAC 246-272A-0240. She
read aloud lines (1), (2), (a), (b), and (c). She said that Mr. Brotherton clearly did not meet the
criteria for a waiver.
Mr. Brotherton repeated his differing interpretation of the WAC and the Waiver Application
Guide. Chair Westerman restated that the word "may" is a very specific word. She said it gives
the local health officer direction, i.e. three cases in which he "may" grant the waiver. Further, if
the waiver is granted, then it provides requirements for the holding tank system. The waiver is
prerequisite to application of the criteria in (3, a, b, c). Meeting the criteria in (3) does not entitle
one to a waiver, simply by skipping (2).
Mr. Brotherton maintained that the structure of the WAC should be interpreted to mean that if
the conditions of (3) are fulfilled, the holding tank is permitted.
Member Austin acknowledged that Mr. Brotherton had made an articulate case for the use of
holding tanks. However, he said the County must uphold the law, as it is written, and holding
tanks are not permitted in residential settings. He suggested that Mr. Brotherton would need to
make his recommendations to the legislature.
Mr. Brotherton responded to Member Sullivan's earlier comments. He stated that there would be
no extra enforcement or effort by the County if a holding tank waiver was granted to him, based
on the contracts that are in place.
Member Frissell stated that Mr. Brotherton is challenging State law and that it is not the purview
of the BOH to change the State regulations.
Member Sullivan stated that Mr. Brotherton had mentioned his position as a County deputy
prosecutor. He asked Mr. Brotherton if he had consulted with the County Prosecutor regarding
interpretation. Mr. Brotherton said that he had spoken with Ms. Dalzell earlier in the day. Chair
Westerman indicated that if the BOH wished to have the County Prosecutor review WAC 246-
272A-0240 that could be arranged prior to ruling on this appeal.
Dr. Locke said that Deputy Prosecutor Alvarez had been informed of this case at the point of
waiver denial and has kept him apprised of the appeal process. Mr. Alvarez had elected not to be
part of this BOH hearing, on the basis that it may be a potential conflict if there were to be
related litigation in the future. Dr. Locke said the authority to make waiver decision of this type
is a judgment call for the health officer. He again briefly explained the reasons for his decision
to deny the waiver. In addition, he commented that it would be a horrible precedent to grant a
waiver simply because the applicant does not wish to meet the requirements of the code.
Member Austin moved that the BOH uphold the decision of the Health Officer; Member
Sullivan seconded. The motion was approved unanimously.
Chair Westerman thanked Mr. Brotherton for his presentation and closed the hearing at 4:10 PM.
Mr. Brotherton provided copies of his PowerPoint presentation to staff and left the meeting at
this time.
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H1N1 Influenza ("Swine Flu"): Jefferson County Pandemic Preparedness Activities
Dr. Locke stated that Swine Flu Response has involved a great deal of work in recent weeks,
with more anticipated. The first case in Jefferson County had been identified earlier in the day.
The response started on Friday, April 24 when Dr. Locke was contacted by the Kitsap County
Health Officer to alert him regarding the swine flu activity in Mexico City. He said that
emergency response had gone to the national level over the weekend, and there had long hours of
work for several weeks. He described the rapid spread of the virus, which is in a class know as
"triple re -assortment viruses". There are three ways that viruses mutate; reassortment is one of
them. Prior to the emergence of this virus, reassortment viruses have only been a threat to pig
handlers. These were diseases of swine that people could contract occasionally. There were 11
known cases of triple assortment viruses in the US since 2005. This one has become
transmissible from human to human. The place of origin has not been determined. With a
population of 22 million people, Mexico City has an ideal environment for the disease to spread.
Initial reports from there indicated a high death rate and a new virus which prompted a rapid and
intense public health response.
Chair Westerman asked whether or not the cause of the high death rate there is known. Dr.
Locke said that initially there were reports of a 5 to 10% mortality rate, which would be twice
the 1918 pandemic mortality rate of 2.5%. At this time, there are in excess of 45 confirmed
deaths in Mexico City, but it is likely that there have been hundreds of thousands, possibly
millions, of cases that were relatively mild. He said that it is now believed that because this
strain is mild, many people did not know they had swine flu or were not diagnosed/reported.
The complication rate is very low. He said we have become less fearful as evidence has
emerged, but realize that this may be followed by a more serious second wave, possibly in the
fall of 2009. Dr. Locke said that the virus will likely spread to the Southern Hemisphere during
their winter flu season that is just now beginning.
In response to a question about vaccine protection, Dr. Locke said that the capability to produce
a vaccine exists; a decision would need to be made by mid June. But, there would be insufficient
time to produce enough for the entire population before the flu season, unless certain new
technologies could be ramped up quickly. He noted that the current technology, using up to 3
fertilized eggs to create each dose of influenza vaccine, was created in the 1930s. Cell culture
techniques are under development and would enable much faster mass production of vaccines.
In response to a question, Dr. Locke confirmed that the under 50 age group (predominantly
under 20), are more likely to get the disease. This suggests that older populations have some
residual immunity from previous forms on influenza.
With regard to the first case reported in Jefferson County, Dr. Locke said he would be speaking
with the provider directly after the meeting. The exposure could have taken place within the
State, and was not necessarily due to travel in Mexico.
Page 8 of 10
Chair Westerman asked if triple reassortment viruses could become more lethal over time, and
what is the mechanism at work. Dr. Locke said that the influenza virus carries its genes in 8
discreet, swappable packets. The new H1N1 virus is composed of 2 parts Avian, 3 parts North
American Swine, 3 parts Eurasian swine, and one part human influenza. All parts are
interchangeable. There it is the possibility that additional swapping will occur, producing am
more dangerous form of influenza.
Member Johnson asked if it was possible for people who had the swine flu this season to get the
same flu again in the next flu season. Dr. Locke said it is possible but not probable. There was
further discussion about a strategy that would allow most people to risk getting the disease now,
which would protect them in the next wave. Dr. Locke pointed out that any flu can be lethal and
the normal rate of 1 death per 1,000 cases. Also, one of the biggest fears is that a mutation will
occur that combines the swine flu virus with another of the circulating seasonal flu strains.
The fact that this became a level 5 pandemic alert triggered distribution of the national pandemic
stockpile. The County accepted a supply of 1,000 doses based on the severity and risk
information available at the time, and in consideration of the Hood Canal bridge closure. The
amount of Tamiflu available at local pharmacies and the hospital was fairly low, as well. Julia
Danskin said that the Health Department will make certain sufficient supplies are on hand for the
fall.
Dr. Locke discussed the relatively low efficacy of Tamiflu with seasonal flu, which is generally
reserved for the severely ill or those who are at high risk for complications. It shortens the
duration of illness by 12 to 24 hours, and it must be used in the first 48 hours. With seasonal flu,
it lowers the rate of hospitalization by I%.
Jefferson County Lakes Update For Toxic Algae
Dr. Locke said that there is a new type of blue-green algae present in Lake LeLand, i.e.
Oscillatoria. The other forms are Anabaena, Aphanizomenon and Microcystis (otherwise called
Annie, Fannie and Mike). Oscillatoria produces a neurotoxin; Lakes Leland and Anderson are
still "hot", with levels going up. These lakes, especially Lake Anderson, are apparently good
habitat for these algae. He said that it may be prudent to change the fishing season to winter
months, when algae levels are lowest.
In response to a question regarding treatment to kill algae, Dr. Locke said that most measures
actually cause more toxins to be released into the water. Normally, the toxins produced do not
get into the water. The decaying material falls to the bottom and is broken down into the
sediment. However, much is still unknown about these toxins. No clearly discernable patterns
regarding timing and volumes of the toxic algae have yet been determined.
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Adjournment
Chair Westerman adjourned the meeting at 4:32 PM.
JEFFERSON COUNTY BOARD OF HEALTH
Sheila Westerman, Chair Phil Johnson, Member
dOV4 Ld I
Chuck Russell, Vice -Chair J Austin, Member
Roberta Frissell, Member David Sullivan, Member
Absent
Michelle Sandoval, Member
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