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BCC Ruling No. 11-01-1274

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Ruling No. 11-01-1274
Application No. S 2010-31

BUILDING CODE COMMISSION

IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.

AND IN THE MATTER OF Clause 8.9.2.3.(2)(b) of Division B of Regulation 403, as amended, (the Building Code).

AND IN THE MATTER OF an application by Gabriel Godard, Homeowner, for the resolution of a dispute with Terry Davidson, Chief Building Official, Rideau Valley Conservation Authority, to determine whether the proposal to maintain a treatment unit without a service/maintenance agreement with a person who is authorized by the manufacturer to service and maintain that type of treatment unit, provides sufficiency of compliance with Clause 8.9.2.3.(2)(b) of Division B of the Building Code at 5927 3rd Line Road North, RR#3, North Gower, Ontario.

APPLICANT

Gabriel Godard
Homeowner
North Gower, ON

RESPONDENT

Terry Davidson
Chief Building Official
Rideau Valley Conservation Authority

PANEL

Judy Beauchamp, Vice Chair
Jim Wilkinson
Eric Gunnel

PLACE

Toronto, Ontario

DATE OF HEARING

January 19, 2011

DATE OF RULING

January 19, 2011

APPEARANCES

Gabriel Godard
Homeowner
North Gower, ON
The Applicant

Terry Davidson
Chief Building Official
Rideau Valley Conservation Authority
The Respondent

Jason Hutton
Inspector
Rideau Valley Conservation Authority
Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant has received an order to comply under the Building Code Act, 1992, to remedy certain alleged Building Code contraventions concerning Clause 8.9.2.3.(2)(b) of Division B of the Code at 5927 3rd Line Road North, RR#3, North Gower, Ontario.

The subject building is a two storey, three bedroom residential dwelling, which is served by a Class 4 Sewage System that contains as one of its components, a tertiary treatment unit that is listed in the Supplementary Standard of the Building Code.

Clause 8.9.2.3.(2)(b) of Division B of the Code requires a person, who operates and services a treatment unit other than a septic tank, to be authorized by the manufacturer to service and maintain that type of treatment unit.
The dispute before the Commission involves the proposal by the Applicant to service and maintain the treatment unit that forms part of the sewage system that serves his home. The Applicant in this case is not authorized by the manufacturer to service and maintain the subject treatment unit.

2. Provisions of the Building Code in Dispute

8.9.2.3. Class 4 Sewage Systems
  1. (2)  No person shall operate a treatment unit other than a septic tank unless the person has entered into an agreement whereby servicing and maintenance of the treatment unit and its related components will be carried out by a person who,
    1. (b)  is authorized by the manufacturer to service and maintain that type of treatment unit.

3. Applicant’s Position

The Applicant submitted that the subject sewage system is the second one he has owned and has had much practical experience in the servicing and maintenance of his septic systems. Further, the Applicant added that he is a knowledgeable homeowner who strongly believes in the regular maintenance and servicing of his septic system to ensure the health and safety of his family and protection of the environment.

The Applicant advised the Commission that once a month he routinely checks his treatment unit including inspecting the aerator and cleaning the filters. He stated this practice far surpasses the industry’s recommended practice of checking the aerator and filters every six months to two years. He explained that he had changed the aeration diffuser, checked the air pressure and broken up the scum in the clarifier in June 2010. The Applicant advised that he had obtained a copy of the appropriate maintenance and servicing literature directly from the manufacturer for his treatment unit model thereby, satisfying the first half of the requirement of Clause 8.9.2.3.(2)(b) of the Code.

The Applicant submitted a copy of a receipt for the purchase of a new diffuser which he installed to replace the old one. He pointed out that he was able to purchase the replacement parts for the treatment unit directly from the manufacturer quite easily and without any authorization from the manufacturer. The Applicant argued that the very ability for a person to purchase replacement parts needed to service and/or maintain a treatment unit directly from the manufacturer proves authorization from the manufacturer is not, in his opinion, required and further proves that what he is doing is not illegal. The Applicant further argued that he is a homeowner whose septic treatment unit is no longer under warranty and therefore, there is no contractual obligation between the homeowner and the manufacturer of the unit.

The Applicant advised that he had inquired about and was willing to take the appropriate courses and training to be authorized by the manufacturer to service his treatment unit but discovered that this would require travel to the United States at a significant expense. However, he stated that he would be willing to take the training course, if it were locally available, to receive the manufacturer’s authorization and was awaiting further information from the manufacturer regarding this option.

The Applicant submitted that there were numerous homes on his street with much older septic systems than his and that none of the other homeowners were required to pay for service contracts. He explained that he would have never purchased the subject treatment unit had he known that he would not be able to operate and maintain his own treatment unit.

The Applicant surmised that as the homeowner, he would be the most appropriately suited to perform the regular service and maintenance of the treatment unit as he is physically present at the home, is most aware of the system’s daily use and is most concerned about his family’s health and safety. The Applicant also stated that he would be willing to take regular effluent samples from his sewage system and have them tested and provide the Conservation Authority with the test results. The Applicant submitted that considering his past experience maintaining the treatment unit and having the required literature from the manufacturer for the subject treatment unit, his proposal to provide effluent sampling and test results to the Conservation Authority does provide sufficiency of compliance with the Code.

4. Respondent’s Position

The Respondent submitted that Clause 8.9.2.3.(2)(b) of the Code is clear; it states, “servicing and maintenance of the treatment unit and its related components will be carried out by a person who, possesses a copy of the literature required by Sentence 8.6.2.2.(6), and is authorized by the manufacturer to service and maintain that type of treatment unit”.

The Respondent argued that the Code stipulates that authorization from the manufacturer is required in order to service and maintain the treatment unit so that it is maintained as per the manufacturer’s specifications. To support his argument, the Respondent pointed out that page 4 of the owner’s manual, where the manufacturer outlines the minimum requirements for servicing the subject system, which includes obtaining maintenance services from a local servicing dealer.

The Respondent argued the service agreement provides a scheduled maintenance program which ensures maintenance is performed regularly and properly. The Respondent submitted supporting documents which included the following: Clearstream Wastewater Systems, Inc., Owner’s Manual, Onsite Wastewater Treatment Systems Manual, On-Site Sewage Systems Code and Guidelines 2006 Professional Edition, and various articles, which the Respondent pointed out, all concur that proper, regular maintenance is crucial to the performance of the treatment unit.

The Respondent further reported that the general contractor, acting on the Applicant’s behalf when application was made for a building permit to install this sewage system, stipulated in the permit application that a service agreement was in place.

In his view, the Respondent maintained that although the Applicant may be capable of maintaining his own system, he can not be considered qualified under the Code, as he is not authorized by the manufacturer of the subject system and therefore, is not in compliance with the Building Code.

5. Commission Ruling

It is the Decision of the Building Code Commission that the proposal to maintain a treatment unit without a service/maintenance agreement with a person who is authorized by the manufacturer to service and maintain that type of treatment unit, does not provide sufficiency of compliance with Clause 8.9.2.3.(2)(b) of Division B of the Building Code at 5927 3rd Line Road North, RR#3, North Gower, Ontario.

6. Reasons


  1. Clause 8.9.2.3.(2)(b) of Division B of the Building Code states, “No person shall operate a treatment unit other than a septic tank unless the person has entered into an agreement whereby servicing and maintenance of the treatment unit and its related components will be carried out by a person who, possesses a copy of the literature required by Sentence 8.6.2.2.(6), and is authorized by the manufacturer to service and maintain that type of treatment unit”.
    The Applicant, in this case, is not authorized by the manufacturer to service and maintain the subject treatment unit.

  2. It is the Commission’s opinion that Clause 8.9.2.3.(2)(b) of the Code regarding the requirement for service and maintenance of a treatment unit is clear and explicit.

Dated at Toronto this 19th day in the month of January in the year 2011 for application number
S 2010-31.

Judy Beauchamp, Vice Chair
Jim Wilkinson
Eric Gunnell