How familiar is this scenario? You and your crew were out at first light to shoot grades on a new installation. You’re short one man and behind schedule. Yesterday, when you stopped by the county onsite regulatory office, the copier was down and could not print the approved plans. Instead, you’re digging off the draft.
This worked with the previous regulator — ol’ Bob knew people wanted into their new house and that contractors needed to move to the next job. A few more buckets and you’ll drop the tank and start cutting trenches. Then you hear the sound of a backhoe bucket tooth snapping. The county truck pulls up, and out steps a new regulator — the one other contractors call Missy Nit-Pick. Looks like your day just went from bad to worse.
Now turn the scenario around. You’re an onsite regulator on the way to meet a contractor and deliver the approved plans. You missed him yesterday, and your administrative assistant was unable to print the approved design. That’s all right, since there was a major error — the contractor didn’t follow the new state law that increased setbacks around the tank.
At the jobsite, you’re surprised that digging has begun without an approved design. It sure looks like the tank is too close to the property line. The contractor is yelling at the backhoe operator as you walk up. He’s the one other regulators call Loose Cannon. Looks like your day just went from bad to worse.
Seeking better outcomes
This interaction between contractor and regulator has several possible outcomes. The actual result depends upon how well the contractor manages the process and understands the regulations. Here are some practical suggestions for keeping interactions with regulators on the positive side. First, it helps to understand the basic situation.
Why is the regulator here? Simple enough: The regulatory process is mandated by law, be it federal, state or local.
What should I expect from the regulator? You can find insight in the agency’s mission statement, which gives focus and direction on how the agency functions. The regulator’s business card often includes the mission statement, usually a simple declaration: The mission of the (agency) is to lead efforts to protect and promote the health of (the community the agency serves).
Notice that the focus is on the citizens: The regulator is an advocate to protect and promote your customers’ health. Equally important is what the mission statement does not include. The regulator is not at your jobsite to become your friend but to verify that you follow the regulations and take reasonable care to install an onsite system to code.
Not all regulatory agencies have the same perspective. Some are based in the Health Department and focus on health concerns. Others are based in the Building Code Department and give prime importance to engineering design specifications.
Why is the regulator such a pain? A common complaint about regulators is that they have an “attitude.” As in any profession, there is a range of people skills among regulators. Some are former salesmen, and some are former Marine drill sergeants. Many agencies provide customer relations training for regulators, but many do not.
Regardless, accept that a regulator is not being difficult in verifying compliance and is not a jerk simply for citing verified violations. A plan review and inspection requires challenging questions that may offend if you take them as accusations.
If the regulator asks for the setback distance from the tank to the property line, respond with facts and correct specifications. Do not be offended by the challenge inherent in the question. Remember, the issue is the code. As long as the regulator behaves with professional respect, focus on design requirements and not personalities.
Avoid the temptation to verbally attack the regulator. You may win points with your crew by trumping the regulator in public, but in the long run that is costly. Field inspectors compare notes on contractors and anything less than a calm and professional conversation will be fully discussed back at the office.
Works two ways
It takes a mature person to function on either side of the regulatory fence. The regulatory process grants a great deal of power to the regulators. They are the customers’ advocates and have the code book in their pocket. Some immature regulators take this as a license to bully, intimidate, or disrespect the contractor and crew.
Professional regulators are just as disturbed as contractors about horror stories of obnoxious and unfair inspectors — maybe more so. True professionals do not want to be painted with a negative stereotype, and they fully appreciate that a professional contractor is also a customer advocate. And, by definition, professional contractors also have the code book in their pocket.
The unfortunate reality is that most regulators have dealt with contractors who bypass the rules. So if you feel challenged by the regulator, your perception is correct. The professional regulator, while respecting your personal and professional dignity, will challenge your work to verify that it is properly designed and installed.
The key term is verification. Let’s apply that to the opening scenario. The contractor is focused on getting the system in at reasonable cost. The former onsite regulator made allowance for the bad copier, and the contractor worked off the draft. But the new regulator sees the same conditions differently: The contractor is installing without an approved design and missed the new setback requirement.
If the contractor has incorporated all requirements there will be no surprises during a plan review or installation inspection. The regulator evaluates, verifies required procedures, documents any failure to meet the regulations, and takes enforcement action for non-compliance. Contractors should work day in and day out with the regulators’ needs and procedures in mind.
Consider how long a regulator is at your jobsite compared to the time you and your crew spend there. Depending upon how much territory a regulator covers, he or she may be available for only a few minutes to evaluate and verify your installation process.
So, who has the ultimate responsibility for a properly designed and installed system? Contractors do. If you are diligent with your own evaluation and verification, there will be no surprises when a regulator walks up and does the same.
Tougher is better
Contractors should appreciate and even demand rigorous regulatory involvement. In the long run, a lackadaisical regulator does no favors. It is better to have an intense plan review and final inspection that catches design errors while they can be corrected than to deal with an upset homeowner with a failed system two months after construction.
And who should decide whether an installation proceeds? The contractor has the final responsibility. If conditions are such that an approved design cannot be installed and corrections fall outside allowed variances, then the contractor must halt operations until the construction can be brought back into compliance.
Have you ever wondered why a regulator decides to cite certain observations as violations? In part, it helps to understand the agency’s inspection philosophy. Most regulators are taught to cite major issues and consider the overall severity of minor issues. Not all agencies take this relative approach — instead they consider a single incident as enough to trigger documentation and citation.
This approach, “If it’s in the code and I see it, I cite it,” is based on the professional responsibility to enforce all mandated regulations. Here, the regulator does not pass judgment on an observation but simply matches observations with the code. In other words, “If it’s not important enough to cite, then it shouldn’t be in the code, and if it’s in the code, then it’s important enough to cite.”
On the other hand, some agencies take a risk-based approach and require regulators to evaluate the potential of a negative outcome: How critical is this item to the overall function of the system? Instead of a traditional checklist, the regulator uses a “blank sheet” and documents critical observations. Thus, in a risk-based inspection, minor items may not even be documented.
Inspection requirements are usually codified into law, and your regulator may not be at liberty to change them. Many would prefer risk-based inspections but their code does not allow it. Regulators who fail to inspect according to the law leave themselves open to charges of professional neglect and malfeasance.
Regulator skill
The regulator’s experience and knowledge will affect the final evaluation. Every contractor has seen the new regulator afflicted with “white knight syndrome,” riding in to save the homeowner from the greedy contractor and failing an installation because one leachline is a few inches short of specification.
It is the shame of many agencies that they hire new staff, give them minimal training, then send them out to conduct final evaluations. The new regulator, who may never have set foot on a leachfield, is now conducting inspections. The greater shame is that those inspection results become part of the contractor’s performance evaluation and help determine whether that person maintains standing as a licensed contractor.
Even experienced regulators will have an agenda based on what they consider most important and what they are most comfortable inspecting. Your electrical work
on dosing pumps may not get much attention if the regulator is unfamiliar with the technology — yet the same official will evaluate trench length on every inspection, since that is readily visible and easy to measure.
After understanding the basics, the next step is knowing how to build and sustain positive relationships with regulators. That is the subject of the second half of this series, to be published in a future issue of Onsite Installer.
Gary Barnes, a registered environmental health specialist, has more than 30 years’ experience in the onsite industry, from installing systems to writing regulations. As a sanitarian, he has conducted site evaluations, plan reviews, and installation inspections on hundreds of systems. He now works as a consultant in Arizona, helping local agencies establish ordinances and hire and train staff. Reach him at gbarnes6614@msn.com.
