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

By Sikora, Vincent A. | Journal of Environmental Health, March 2004 | Go to article overview

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.

[ILLUSTRATION OMITTED]

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, and no wells were installed.

On the basis of the elevations of the lake and sewage system, the environmental health department issued an enforcement order to the homeowner to replace the system. After receiving a time extension, the homeowner still failed to replace the system. The department issued the homeowner a citation for violating the county ordinance.

The trial court found the homeowner guilty of owning and operating a failing sewage disposal system. The homeowner appealed. An appellate court does not decide if it would have delivered the same verdict as the trial court. It reviews the evidence presented at the trial court to determine if there is any credible evidence to sustain the judgment. Since the appellate court reviews only the typed transcript of the trial, witness credibility is for the trial court to decide. After a trial, the evidence, unless patently incredible, is viewed by the appellate court in the light most favorable to the judgement.

During the trial, the homeowner complained that the sanitarians' conclusions were unsupported because they were based on estimates instead of actual measurements. Indeed, the homeowner produced a laboratory sample report showing his well water was bacteriologically safe and photographs of a test pit showing that his sewage disposal system was over 3 feet above the groundwater. …

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