Intervenor: Vol 24. No 2 April - June 1999

The Law and Your Septic System

"It was either Isaac Newton-or maybe it was Wayne Newton who once said,
'A septic tank does not last forever.' He was right."
- Erma Bombeck, The Grass is Always Greener over the Septic Tank

0n the other hand, a properly installed septic system should function without failure for many years. The emphasis is on properly installed, for not all septic systems are created equal. Even if a system is installed correctly, carelessness can do in a system. For example, parking your 4x4 on top of the absorption bed could compromise the work of the buried pipes.

Septic system problems reported to Ontario's new home warranty program give some more, real-life examples. In one case, a homeowner scuppered his system by rototilling the leaching bed to create a vegetable garden. Another created a winter skating rink for his children over his system and by flooding the same area every night, he ultimately froze the leaching bed solid, which caused water to back up into the house. Yet another homeowner excavated his septic area to install an in-ground swimming pool. Someone flushed a toilet and … well, it happens.

It's a wise man who knows who does what with septic systems-before he builds. Consider this your summertime guide to the law of septics in Ontario. There have been recent and important changes to the law affecting septic systems in Ontario.

The passage of the Services Improvement Act, 1997 and the proclamation of Schedule B to that Act into law on April 6, 1998 transferred the regulation of smaller septic systems from Part VIII of the Environmental Protection Act to the Building Code Act (1992). The building code itself has been extensively revised and a new Part 8 has been inserted to regulate the installation and operation of septic systems. Smaller septic systems are those whose design flow is for less than 10,000 litres a day, and the system is located wholly on the lot of the building which the system serves.

Formerly, regulatory provisions relating to septic sewage systems were usually administered and enforced by boards of health of Regional and District health units. Municipal Chief Building officials and their inspectors are now charged with enforcement.

Although the Building Code Act allows municipalities to enter agreements with upper tier municipalities or with certain agencies such as conservation authorities or health boards to have those other bodies administer the provisions of the building code as to sewage systems, the Province has only mandated that this be done in Northern Ontario. A new section 2.15.1.1 has been added to the code designating particular Northern health boards and a conservation authority as the responsible bodies.

In contrast, in the Greater Toronto Area there has been a steady devolution of the control of septic systems from regional health units to local municipalities, as part of their over-all responsibilities for building code matters.

An additional feature of the legislative changes is a new requirement for the testing and licensing of installers of sewage systems. Prior to the enactment of new provisions in Part 2 of the building code there was no requirement or regulation of installers of septics. In the words of one municipal official, septics were previously installed by anyone who knew how to operate a backhoe. Now an examination must be passed to obtain a licence to be an installer.

The new Part 8 of the building code sets out 5 different classes of septic systems in a uniform and detailed fashion. The regulations describe those systems and make provision for such matters as: clearances of systems from bodies of water, requirements as to depth and anchorage of septic tanks and holding tanks, and standards for operation and maintenance of septic systems. Under the Building Code Act, a Chief Building Official (CBO) has an obligation to issue a building permit under Section 8 of the Act, unless specified matters are not met. He or she may refuse to issue a permit if any "applicable laws" are contravened. "Applicable laws", means any act, regulation or by-law which prohibits construction unless those laws have been adhered to. Accordingly, a CBO can refuse a building permit if provisions of the building code pertaining to septic systems are not being met.

Some people may be concerned that small septic approvals are generally no longer being handled by health unit staff and are now monitored by municipal building staff. However, the new requirements of training for inspectors of sewage systems, the requirement for the testing and licensing of installers, and a more regulated regime to govern septics under the building code, should mean our ground and surface waters will be no less protected.
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Gary McKay is a municipal law lawyer practicing in Toronto. This article was written while he was doing volunteer work for CELA.

More summer septic reading
A New Homeowner's Guide to Septic Systems, Ontario New Home Warranty Program, 1998.
Builder's Guide to Wells and Septic Systems, R. Dodge Woodson, McGraw-Hill, 1996 (a well written and concise American text).
The revamped building code and Act can be obtained from the Ontario Government Bookstore (phone 416-326-5324).