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**After years of controversy, TOST headed toward repeal

Barry Eaton District Health Department’s time of sale or transfer regulation, or TOST, has been the center of dissention since its inception in 2007. Intended to assure clean water and sewer systems on private property, the rule mandated inspection and repair of systems deemed failing by a health department certified evaluator.


The goal was never in dispute but the cost, restrictions and administration of the regulation raised continuous complaints by citizens.

With action last week by the health department’s Board of Health, it appears that the regulation probably will be repealed. The Board of Health is made up of commissioners Blake Mulder, Jane Whitacre and Joseph Brehler from Eaton County and Ben Geiger, Dan Parker and Dave Jackson from Barry County.


WBCH asked a few people who were involved with TOST for years to give their opinions on the regulation for a better understanding of what happened and why; a health department official, a Barry County commissioner, an Eaton County commissioner, and a Barry County citizen. A minimum of editing was done for length.


BEDHD Health Officer Colette Scrimger:

“Yesterday, (Jan.25) the Board of Health voted to begin the process to repeal regulations governing on-site sewage and on-site water supply system evaluation and maintenance program Time of Sale or Transfer or TOST.  Over the last 10 years, the program facilitated inspections of 11,440 wells and 9,443 septic systems throughout Barry and Eaton counties, ensuring that the systems are functioning as intended and protecting the health and welfare of countless residents.


“We are proud to protect public health, proud of the work we've done, and proud of the work we will do,” Scrimger said.  "Unfortunately, since gaining approval from both county boards of commissioners, the misunderstandings surrounding the program have made it a source of frustration and controversy.


“Despite efforts to review, refine, and reform TOST, it continues to be subjected to intense public scrutiny and political debate. According to Commissioner Ben Geiger, chair of the Board of Health: “After months of consideration, the Board of Health has determined a fresh start is what's needed to bring our communities back together around public health. Rest assured, the health department's commitment and ability to serve all residents will remain, with or without TOST.”

Commissioner Blake Mulder, Board of Health vice chair added: "If TOST is repealed, it’s up to commissioners in both counties to lead the way in finding new strategies to protect and promote public health in a manner that unites us together.”   


“Public hearings on the subject are scheduled for Tuesday, Feb. 20 at 1 p.m. at the Barry-Eaton District Health Department Office at 330 West Woodlawn, Hastings and Wednesday, Feb. 28, at 7 p.m. at the Barry-Eaton District Health Department Office at 1033 Health Care Drive, Charlotte. The Board of Health will take action at their next meeting, scheduled to take place immediately following the public hearing on Feb. 28.”


Barry County Citizen Larry Bass:

“Professionally I have spent 40 years at various levels in Materials Management primarily in the automotive sector, dealing with both U.S. government customers and inspection agencies as well those in the private sector; I have written and audited numerous procedures and work instructions. Data has always driven me.


“On the Issues Committee of the Barry County Republican Party I was asked in 2013 to take on TOST as an issue. After finding out that since TOST was implemented in 2007 and I was now required to get permission of the Barry Eaton District Health Department (to sell property) I was infuriated.


“Why in America would I need government permission to sell my property? There was no base line study performed to indicate that the mandatory inspections were needed; there was no way of measuring if the water quality and environment were improving since the regulation was adopted. "This is true even after 10 years. The cost of the evaluations increased from $123 when the Health Department performed them to $450 when performed by the required registered evaluators; $125 is still kept by BEDHD.


“These evaluations have cost the rural residents of Barry County approximately $2.9 million dollars since the start of the regulation. After interviewing elected officials, realtors, TOST committee members and residents who attended meetings leading to the regulation’s rollout, it was acknowledged that what was implemented was not what was presented.


“No over-site was initiated to insure that enforcement of the regulation did not exceed the original parameters. Property owners were not considered as stakeholders in the regulation but banks, realtors, etc. were.


“The aquifers associated with Barry County test well within EPA guidelines.”

“Being data driven, I started researching the evaluation results and science involved. Just some examples of the results of that investigation were:

  • Sale of vacant homes refused because electricity turned off.
  • Sale refused because depth of well unknown, water tested ok.
  • Property owners forced to allow entry into homes and outbuildings.
  • Refused for loose well cap or frayed wiring.
  • Septic tank needing pumping still functions.

“These are just a few examples, I can furnish more.”


Eaton County Commissioner Brian Droscha:

“In my opinion, rescinding TOST is going to be good for both counties. The problem I have with TOST is that it is focused on such a small minority of property owners in both counties. The concept of TOST and its goal, while admirable, failed to really give us the broad perspective of where the problems truly lie.


"Conservation district studies give us a much broader picture of what is really going on with water quality in our two counties. Watershed studies, test well studies and so forth give us a much better picture of water quality in Barry and Eaton counties than the TOST program could ever offer.

“TOST in its implementation only targets properties for sale. If a particular property is tested once in a decade it does not give us accurate information. Continued water testing is the only accurate way to gather this information.


“Also, TOST took our health department from being a public service organization and morphed it into an enforcement agency. That's was never the intended role of our health department.
 “It is my hope and belief that Eaton County will join with Barry County in rescinding TOST and implement better, broader and more consistent ways to monitor water quality in our county. It is also my hope that the Barry Eaton District Health Department will join with us in this endeavor so that we can get back to serving our public and teaming with our residents in keeping our environment safe and clean.”


Barry County Commissioner David Jackson:

“I was appointed to the commission in June of 2015 and some of the first conversations with constituents revolved around the Time of Sale Transfer (T.O.S.T.) program.  I listened and started gathering information from many different viewpoints.


“I’ve had many conversations with realtors, lenders, evaluators, constituents and leaders at the county and township level. The agreement was that T.O.S.T. had some of the intended benefits of finding and fixing aging septic and water infrastructure, however the methods used to accomplish that goal centered on words like heavy handed, inconsistent, expensive, personal property rights.


“I believe that T.O.S.T. was a “bridge” program that took us from the mid 2000’s where systems to accurately evaluate our onsite infrastructure were lacking. T.O.S.T. helped foster a standard and a system that involves certified evaluators, realtors and lenders who understand and promote professional inspections for their clients. With the sunset of the program, those standards remain in place for the protection of Barry County residents.


“The vote to begin unwinding T.O.S.T. was a culmination of many things:  Public support for the program has been lacking for many years, continued efforts by the board of health to revamp the program failed to meet flexibility guidance requested by the Barry County Board of Commissioners, and T.O.S.T. became a block to forward thinking ideas.


“The Eaton County Commission has also had discussions on repeal of this regulation, and it was apparent to all, we need to get to a better place. I believe we all agree that T.O.S.T. has been a dark cloud over our district health department that needs to be removed. I have offered to lead a steering committee to promote responsible, forward thinking ideas that continue to protect Barry County families and target areas of concern.


“I sincerely thank all Barry and Eaton County residents who have supported and encouraged this process of review.”

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