The Tribune Democrat, Johnstown, PA


May 6, 2014

Forcing homeowners to pressure test is an abuse

JOHNSTOWN — Homeowners, especially in Johnstown, do not have money to flush away. It is one thing to expect homeowners to support new sewer construction with the promised improvements in service and public health – and quite another to expect citizen support for an extreme testing procedure that threatens their home, their solvency, and their constitutional right to be secure in their home.

Forcing homeowners into open-ended, private contracts that imperils their home and economic well-being is not an improvement – it is an abuse.

Local sewer authorities who have forced their customers into pressure testing want the city of Johnstown to follow their well-intentioned but seriously flawed example.  

There is no good reason to do so, and some very good reasons to spare Johnstown homeowners this misplaced burden.

Sewer authorities derive their powers from the General Assembly. Those powers are strictly limited to those in the Municipal Authorities Act of 1945.

The General Assembly did not give – nor did it intend to give – sewer authorities the right to place the burden of proof upon homeowners; to force homeowners to prove that they are not in violation of any service standard; to force homeowners into open-ended contracts placing their solvency and home in jeopardy; and did not encourage violation of Fourth Amendment guarantees that citizens be secure in their homes.

In fact, there is a growing concern in the General Assembly that authorities can act arbitrarily without proper concern for the citizens they serve.

Units of general government, especially home-rule charter communities such as Johnstown, derive their power directly from the citizens they serve as well as from the state, have broader responsibilities and powers, and are more accountable.

Putting the burden of proof on homeowners and forcing them to hire private contractors to look for air leaks in their sewer laterals – outside, under and inside their home – and then to pay to fix whatever air leaks those contractors might allege, at whatever cost they bill, is a serious abuse of Fourth Amendment rights.

When public officials believe it necessary in the interests of public safety to enter a home, they should seek a warrant as the Constitution requires.

Nationally, pressure testing – where it exists – is usually done by municipalities on their own sewer mains. Most municipal sewer inspection is done by video cameras. Pressure testing required of existing residential sewer laterals is a rarely found and extremely high standard of sewer maintenance.

Building codes that require pressure testing for new construction do not affect existing homes.

A recent national survey of municipal managers requesting information of communities that force homeowners to pressure test their sewer laterals, including under the basement slab, did not yield a single response. Even the wealthiest of American communities do not force homeowners into pressure testing.

The Pennsylvania Department of Environmental Protection (DEP) does not require pressure testing.

So, did local sewer authorities have choices? Oh, yes.  

The first choice was to accept their own responsibility to take reasonable steps to curb stormwater inflow and infiltration. After addressing system issues such as cross connections between storm and sanitary sewers, damaged sewers and perforated manhole covers, the next action is usually to hire temporary employees to do smoke and dye testing to locate and eliminate roof drain connections.  This was the recommendation of the DEP and it made sense.  For some reason that needs to be discovered, local sewer authorities went above and beyond what was expected by the DEP.

Another choice was to avoid usurping powers not given.     

Foisting this burden onto homeowners to prove that they have not violated some service standard is of questionable ethics and legality.

Clearly, the current law governing municipal authorities must be revisited to provide more accountability and more citizen recourse. The only recourse now available is to the Court of Common Pleas which, in effect, is no recourse.

An aggrieved citizen has to bring an expensive lawsuit against friends and neighbors serving on authority boards.  The sued officials would be defended by the attorney serving the authority, or its insurance company, and, in either case, would be paid by the authority from monies collected from customers.

So plaintiffs would be paying the counsel for the defendants. Real recourse must be found for homeowners damaged by arbitrary and capricious actions of authority boards.

Public policy must be made by public officials – hopefully with good advice from professionals. The most efficiently engineered solution isn’t always the best public policy.

Overdesign can be a temptation for engineers. Consulting engineers and attorneys have a responsibility to recommend practices, policies and plans that are optimum, feasible, practical, ethical and lawful.

Edward Smith of Jackson Township is a retired city and county manager. He is chairman of the Pennsylvania Homeowners Association.

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