Statutory Presumption, More on Statutes of Limitations, and the Concept of "Closely Regulated Industries"

Sikora, Vincent A., Journal of Environmental Health

Onsite sewage disposal systems occasionally fail, or they may be dangerous because of their location. A sewage system failure may present a contact danger for adults and children, create a breeding place for flies and mosquitoes, cause odors, or result in surface water or groundwater contamination. A goal of all environmental health programs is to eliminate such failures.

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A failed onsite sewage system may, however, be difficult to identify. If a failure results in surface ponding, it is relatively easy to locate by sight or odor. The difficulty in identification occurs in situations when the sewage never rises to the surface and is discharging directly into the groundwater. Failures may be proven by a disease outbreak, dye testing, or extensive groundwater sampling. The first case discussed in this month's column, from Wisconsin, used another method to prove a failure--through average groundwater elevations and a statutory presumption.

Case 2 involves onsite sewage disposal in Texas. Homeowners sued the county and two environmental health inspectors for negligence in allowing construction of their house and onsite sewage disposal system in a flood plain.

The third case is from Minnesota. It concerns a citation issued for refusal to allow a boat to be inspected for sport fish. Although the case involved a proposed inspection by a wildlife officer rather than an environmental health officer, it is discussed here because it concerned the exception to the Fourth Amendment for "closely regulated" industries, which might apply to food establishment and other environmental health inspections.

Case #1: Conviction for Illegal Onsite System Upheld (1)

A home on an island in the Sawyer Harbor area of the Town of Nasewaupee, Wisconsin, had been constructed in the 1940s, and used a well and an onsite sewage disposal system. As part of a survey to identify failing or failed sewage disposal systems, the Door County sanitarian, John Teichtler, and assistant sanitarian, Chris Olson, obtained information from the Corps of Engineers about the average elevation of Lake Michigan (578.4 feet mean sea level [MSL]). Since the home was on an island, it was believed that the groundwater elevation would be the same as the lake level. Teichtler and Olson then determined that the island home's onsite sewage disposal system (elevation 579.5 feet MSL) was less than 2 feet above the average lake water level. No water or soil samples were collected, no soil evaluations were made, no dye tests were performed, no infrared photographs were taken, …

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Publication information: Article title: Statutory Presumption, More on Statutes of Limitations, and the Concept of "Closely Regulated Industries". Contributors: Sikora, Vincent A. - Author. Journal title: Journal of Environmental Health. Volume: 66. Issue: 7 Publication date: March 2004. Page number: 56+. © 1999 National Environmental Health Association. COPYRIGHT 2004 Gale Group.

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