Summary of Ruling
On November 1, 2019, the Minnesota Pollution Control Agency (MPCA) published a dual notice of intent to adopt changes to MN Rules governing subsurface sewage treatment systems (SSTS) – septic systems. Included among these rule modifications, was a requirement for septic tanks to be pumped empty in order to complete a compliance inspection. Minnesota Realtors® (MNR) participated in every step of the rule-making process and submitted comments expressing our opposition to this rule modification.
The MPCA’s rule-making documents, including the draft rule, comments for/against the proposal, and the MPCA’s responses to comments, can be found at www.pca.state.mn.us/water/amendments-subsurface-sewage-treatment-systems-inspection-and-permit-requirements
On June 23, 2020, an Administrative Law Judge submitted approval of the rule modifications, which means the MPCA has properly followed all statutory procedures and has demonstrated, “…a need and reasonableness of such change.”
The rule modification was published in the Minnesota State Register on January 5th and became effective on January 11th.
Q: How does this rule modification impact my transactions?
A: Minnesota does not have a state-wide septic inspection point-of-sale requirement and this rule amendment does not create one. This rule modification only impacts properties in counties that have a point-of-sale compliance inspection requirement or any property where the owner/seller is completing an SSTS compliance inspection. For those properties, septic tanks will need to be pumped empty prior to completing the compliance inspection. An existing tank integrity assessment from the previous three years is allowed to be used to make a determination of system compliance.
Q: Does this rule modification impact septic systems that are being replaced?
A: No, for septic systems being replaced, it is not necessary to complete a compliance inspection and have the tank pumped empty.
Q: Why did MPCA modify this rule requiring septic tanks be pumped empty in order to complete a compliance inspection?
A: According to the MPCA:
- The agency has been notified about an increasing number of tank inspections, over the past few years, that were deficient and that these deficiencies are mostly related to missed observations of cracked or leaking tanks that were identified on subsequent or follow-up tank inspections
- The adoption of property transfer inspection requirements in local ordinance by many LGUs (167 in 2017) has increased the scrutiny being placed on tank inspections. MPCA staff has heard from many of the current inspectors in the field that this rule change will “level the playing field,” and also from many individuals, that implementing this rule change will help minimize the number of “bad” inspections that occur.
Q: If the tank is pumped empty during the winter, will it freeze and damage the tank?
A: MNR raised this concern in the comment letter. The MPCA responded with the following:
- This viewpoint, while commonly shared by the commenters, has not been able to be verified by the MPCA. Annually, the MPCA travels the state of Minnesota to meet with local unit of government (LGU) employees in public meetings known as “talking tours.” In the 2019 January meetings, the MPCA asked all meeting attendees if there had ever been instances of tanks freezing, due to pumping, or other reasons of which they were aware. Of the 132 meeting attendees, which represented 81 of the 218 LGUs in Minnesota, including 60 of the 87 counties in the state, no one was aware of any instances, at any time, of a tank freezing due to a pumping activity.
- MPCA has been unable to find any information, in research articles or otherwise, that supports the narrative that pumping a tank during wintertime, or colder time periods, results in frozen and damaged sewage tanks.
- There is also no state requirement in place, or being proposed, requiring tank pumping during wintertime, or colder time periods. While the proposed rules require that a tank integrity assessment be completed on an empty tank, there is no requirement in state rule to empty a sewage tank during winter months. Contrarily, Minn. R. 7082.0500 subp. 3 C allows local units of government to waive a compliance inspection requirement from November 1 to April 30 provided the compliance inspection is completed by the subsequent June 1st.
Q: Will this tank pumping requirement delay transactions by making it difficult to coordinate pumping and the inspection?
A: MNR and others raised this concern in comments submitted to the MPCA on this rule modification. The MPCA responded as follows:
- Anyone who lists, or plans to list a property for sale, can initiate a compliance inspection on their system even before a signed purchase agreement is in place. Furthermore, because compliance inspections are valid for up to three years, this process can occur well before the property is listed for sale.
- As of 2018, 166 of the approximately 220 local units of government running SSTS programs had voluntarily chosen to require SSTS compliance inspections prior to property transfers. Adding the requirement for the inspector to have viewed the tank while empty or use a tank integrity assessment from the previous three years, is unlikely to significantly impact the timing of this process. However, in the event that there is a location in the state that does experience issues from this added requirement, the local unit of government maintains the option to remove any locally adopted inspection triggers for property transfers thereby negating any timing issues.
Q: Where can I find more information about the rule modification and MPCA’s rule-making process?
A: MPCA’s rule-making documents, including comments for/against the proposal, MPCA’s response to those comments, the draft rule, the “Statement of Need and Reasonableness, etc. can be found here: www.pca.state.mn.us/water/amendments-subsurface-sewage-treatment-systems-inspection-and-permit-requirements