Fall 1997

MAHB Staff Changes

Two significant changes for MAHB were precipitated when Marc Boutin , MAHB’s Tobacco Control Director, accepted the position of Public Affairs Director for Easter Seals of Massachusetts.

On March 1st, Attorney Cheryl Sbarra will replace Marc Boutin as MAHB’s Tobacco Control Program Director. An attorney for nineteen years, Sbarra has worked in tobacco control since 1994. Cheryl introduces herself on page 11.

For the past two years, Sbarra has been the Regional Field Director for the Massachusetts Tobacco Control Program for the Metrowest Region. She has been responsible for overseeing approximately forty local tobacco control programs and for developing statewide tobacco control initiatives, concentrating her efforts in tobacco control policy and enforcement issues for local Boards of Health and Health Departments. In a previous position, she was the Director of the Town of Winchester’s Tobacco Control Program.

Marc Boutin will remain with MAHB in a new, part-time position of Senior Policy Analyst. While he will no longer be available for direct board consultation, Marc will continue to play a strong role in the MAHB Certification Program. He will also contribute articles to the MAHB Journal, and will become Legal Editor of the MAHB Legal Handbook for Boards of Health, which is currently being revised.

These changes will position MAHB to expand our educational and technical services to local boards of health.


 

Editor’s Page

Marc Boutin has given local boards of health assistance that often went far beyond his responsibilities as Tobacco Control Program Director. The Massachusetts Easter Seals will benefit from his wise and generous spirit, and I am thankful that he will also be able to continue to work with MAHB on special projects, including Certification. Marc is a natural teacher, and his years of experience in handling board of health issues would not be easily replaced.
Marc’s resignation as Director of the MAHB Tobacco Control Program would be very detrimental to our efforts, if it were not for the fact that as of March 1, Cheryl Sbarra will assume that position. Cheryl has devoted years of professional service to the tobacco control program, and will bring a unique perspective to this position, since she has worked at the local, regional and state level.
Marc, Cheryl and I are all looking forward to continued collaboration and we anticipate being able to increase MAHB’s capacity to serve local boards of health at the start of this new century. Murphy’s Law is very much in evidence when we move equipment and people, provide hundreds of pounds of printed materials, and cater hot lunches – all the while keeping to a tight schedule that not every speaker is inclined to respect!

What’s in a name (change)?

Observant readers will notice that we have changed the name from the MAHB Quarterly to the MAHB Journal of Local Public Health. It has become increasingly difficult to meet a quarterly publication schedule., and changes in communication technology make frequent mailings less essential. Our web site and listserv provide a much more efficient method of relaying time-sensitive information. For example, I sent an e-mail notice of our two new grants to the MAHB listserv and MHOA e-mail list, and posted the application form on our web site weeks before you will read this message. Yet there is still a need for thoughtful articles in a written format. We plan to strengthen this publication by providing more indepth coverage of issues, moving in that direction in this issue with a quartet of articles devoted to housing. No longer hostage to the seasons, I can take the time to develop a quality product justifying the expense of production and mailing, and deserving of your attention.

Footnote to Intra-Municipal Conflict Story

Town Counsel’s letter did not end the intra-municipal feuding. Unfortunately the long-suffering board of health and their agents continue to fend off attacks on their integrity and misguided statements about their authority. This undermines the board’s ability to provide public health leadership, confuses the public, and diminishes what should be a rewarding experience in public service. There is also an innocent victim; the home owner who is caught in the middle of a situation where scoring points against the board of health is more important than performing municipal duties in a professional manner.

Towns like this need a healing process where officials can work together, rather than get caught up in jurisdictional infighting. .

Certification Program

Overall, the Certification evaluations were very positive. (see pg. 21 for comments, and a few of my responses.) This is personally gratifying, because when I first proposed a certification program about ten years ago, it seemed like an impossible dream. Constructing a foundation upon which to build this program depended upon the serendipitous meeting of Dr. Gary Moore through a Kellogg Foundation grant, and synergy of key people such as Marc Boutin and Ravi Nadkarni, and also the support of leadership in DEP and DPH. Nobody said that it would be easy, but we have come far, and with the new broadband Internet access reported on Page 1, we have a new horizon opened to us. Gary Moore and I are planning for the day when you will be certified through an interactive MAHB web site.

There were a few negative comments about this year’s programs, but they were almost universally in response to some technical glitch, snaffu or other problem.

– Marcia Elizabeth Benes .


 

Montague BOH Speaks Out Against Abandoned and Neglected Buildings

The following is excerpted from a letter to State Bank Commissioner Thomas Curry and local legislators from the Montague Board of Health. This letter seeks the state Banking Commission’s assistance in protecting our communities from health and safety hazards induced by abandoned and/or unmaintained buildings and to inform our legislators of the banking community’s contribution to the disinvestment process facing many of our towns and cities.

Banks either hold mortgages or take possession (foreclose) on many of these properties yet disregard any liability or responsibility. This behavior costs the Commonwealth millions of dollars because these properties consume the greatest proportion of police, fire, building and health department resources, while owners bear a disproportionate share of societal costs resulting from code violations.
The State’s Minimum Standards for Human Habitation, 105 CMR 410.000, requires mortgage holders and owners to be notified when properties are out of compliance with health and safety codes. The Code defines an owner as: every person who alone or severally with others has legal title to any dwelling or parcel of land, vacant or otherwise; or has care, charge or control of any dwelling or parcel of land; any mortgagee in possession of any such property; or is an agent, trustee or other person appointed by the courts and vested with possession or control of any such property; and finally, any officer or trustee of a condominium association.

The purpose of this section of the regulation is to provide an effective enforcement tool to bring properties into compliance with these minimum standards, thereby protecting the health and safety of the community. However, the banking industry most often does not take possession of unmaintained buildings to avoid liability, or the industry ignores its “ownership” responsibilities when it does take possession.

These acts or omissions contribute to the demise of the Commonwealth’s property values, and compromise citizen’s safety as well as the collateral and fiscal health of the banking industry. It is the intent of this office to bring mortgage holders to task and to insist upon a response that contributes to a proactive approach to the Community Reinvestment Act. The following current situations showcase the acts and omissions of local banks, one holding possession, the other a mortgage holder.
111 L Street, Turners Falls Three unit dwelling Owner: United Bank, 45 Federal Street, Greenfield:
The Montague Board of Health held a hearing on October 28, 1997, with United Bank due to noncompliance with the State Sanitary Code. The bank and the board signed a No Occupancy Agreement which has not been abided by to date. The bank assumed the mortgage and sold the property without bringing it into compliance with health and safety codes or informing the buyers that the building was under order from the board of health and the inspector of buildings. It was necessary to house the family in three motel rooms until a mobile home could be purchased for temporary housing. The buyers have six children, including youngsters under the age of six. There is no lead certification on file. This tragedy has elevated community fear and people are outraged at the bank’s action. Although the bank has accepted responsibility for their mistake, the community’s trust in the banking industry has eroded.

132 L Street, Turners Falls Nine unit dwelling: MortgageHolder:BankBoston . Owner: Talon Trust.
This initial order for this property for lead paint violations is dated September 1991. The property has been under order since 1993 for State Sanitary Code violations including lack of security, drug dealing and serious animal control issues. The owner has a history of nonpayment of taxes and water and sewer bills. The board of health conducted a hearing on October 28, 1996, and signed a Consent Agreement and Notice of Non-Compliance with the owner. No attempts to bring the property into compliance with health and safety codes have been made. BankBoston has been notified of the situation and has ignored our request to ameliorate the problems. The owner and mortgage holder abdicate their responsibility to bring it up to code. Therefore, the building is targeted for Receivership. It presents a clear and present danger to the neighborhood and the greater community due to the demonstrated lack of concern.

These situations are repeated throughout the region and the entire state. Legal and/or legislative advocacy that supports profits over the public’s health and safety may seem entrenched, as the profit motivation of the tobacco industry once appeared.


How to Condemn a Building A Policy and Procedural Guide

Marc M. Boutin, MAHB Senior Policy and Legal Analyst
The authority of boards of health to condemn a person’s home is one of the most controversial public health powers. The complicated policy, legal and procedural issues involved have resulted in a number of misconceptions. The purpose of this article is to provide a brief policy framework; dispel the myths surrounding this issue; and to provide a short procedural guide for boards of health that use this powerful tool to coerce compliance with state and local public health law.

Policy Framework:

Prior to condemning a building, boards of health must engage in a harm/benefit analysis. The ultimate charge of boards of health is to promote and protect public health. Will condemning a person’s home achieve that important goal? Does the threat of harm to that person outweigh the harm which may result from removing him from his home? Do social service programs, family, or friends exist which may be willing to take responsibility for the family? Will the community and/or local political machine support the board’s actions. Will the local police department, fire department and building inspector work collaboratively with the board of health? Does the board have the financial and/or technical resources necessary to implement the required inspections? While considering the totality of the circumstances, board members must use common sense and make the best decision in each particular instance.

Experience indicates that this process works best where the person involved falsely asserts that the board of health lacks the authority to compel compliance with public health laws, or alternatively, where the individual falsely asserts that he lacks the resources to bring the property into compliance. As will be explained in more detail later, it is undisputed that the board may condemn and thereby deny the beneficial use of a person’s home for significant public health violations. While indigence is often a concern, the cost of finding alternate housing is usually more expansive than compliance with the board’s order. As a result, the individual is more likely to comply with the order than to secure alternate housing.

Conversely, experience indicates that this process does not work well with people who are mentally impaired.

Absent skilled services to treat the underlying disability, the board of health is unlikely to garner compliance with public health laws. The mental impairment prevents the individual from understanding the significance of the process. Even after removal from the home, individuals will return to the condemned building and continue residency despite the termination of utilities. Success is clearly contingent upon the board’s ability to provide assurances of adequate resources to deal with the disability.

Myths:

Myth One: “The board of health must compensate the displaced individual for the cost of a replacement dwelling.” This myth is grounded in the colonial belief that the monarchy should not be able to take your property without just compensation. In the Taking Clause, the Constitution specifically forbids the government from taking a citizen’s property without compensation. In nearly all circumstances the government must provide substantial relocation costs to any person displaced as a result of its order to vacate. The government may, however, exercise its police power and order a person to vacate property to protect public health, safety or welfare without providing substantial relocation costs.

In Massachusetts the state has delegated its authority over local public health to boards of health. The Commonwealth has specifically preserved the board’s authority to take property from an individual to protect the health and safety of the occupants or the community as a whole. See M.G.L. c. 79A, Sect. 13; 760 CMR 27.01(4) (authorizing boards of health to remove individuals from their homes for purposes of enforcing the State Sanitary Code, 105 CMR 410.00). Moreover, state law specifically limits the board’s financial liability to the “actual, reasonable, documented expenses in moving personal property.” Id. (emphasis added). In other words, the board need only provide a “reasonable” amount of money for the “documented” expenses incurred in moving personal property to a new location within the same geographic and economic area, i.e. truck rental or cost of movers.

Citing constitutional and state law, attorneys representing individuals facing orders to relocate often demand that the board of health pay substantial costs. The unfounded fear of litigation and the false threat of large judgments often chill the board’s enforcement activities. The law is, however, clear. The board of health may enforce the State Sanitary Code, and if its orders are not obeyed, may condemn a building without paying significant relocation costs. Id.

Myth Two: “The board of health must petition the court to condemn a building.” This myth appears grounded in the false belief that the board of health is merely a perfunctory board without any real power. As has been stated, Massachusetts delegated its police power on public health issues to boards of health. Boards of health may promulgate local public health laws and issue orders that “stand on the same footing as would a statute, ordinance or by-law.” Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138, 488 N.E.2d 367 (1949). The principle of separation of powers mandates that the board of health act independent of the judiciary. Arthur D. Little, Inc. v. Com’r of Health, 395 Mass. 535, 481 N.E.2d 441, 453 (1985) (citations omitted). As a result, boards of health may condemn a building without first petitioning a court. 105 CMR 410.831.

Procedural Guide:

Boards of health who are considering condemning a building should engage in the following sequential steps:

Step One: Once a board of health is on notice through complaint or otherwise that a building may have a potential health or safety problem, the board should send the occupant and/or owner a Notice of Inspection indicating the date and time the building will be inspected.

Step Two: Send a staff person with the appropriate expertise to inspect the premises on the date and time indicated in the Notice of Inspection. Collaboration with the fire department, building inspector and police department will often make access easier. If entry is denied however, the board may seek an Administrative Inspection Warrant in housing or district court. 105 CMR 100.100(c).

Often courts are unfamiliar with Administrative Inspection Warrants and therefore assume that the board must meet the difficult probable cause standard required

for criminal search warrants. Remind the court that you are: (1) seeking an Administrative Search Warrant; (2) attempting to assure compliance with public health laws; and (3) there is no threat of criminal prosecution. Thereafter, the court will issue an Administrative Inspection Warrant. The local police department or sheriff may, with force if necessary, ensure entrance to the building for purposes of conducting the inspection. Upon request, MAHB will provide sample Applications for and Affidavits in Support of Administrative Inspection Warrants.

Step Three: Draft an Inspection Report detailing the specific violations with material facts and conditions upon which your findings are based. M.G.L. c. 111, Sect. 127B; 105 CMR 410.831(A). Whenever possible enclose pictures of each violation. In the event a person appeals an order condemning their home, the pictures will dramatically enhance the court’s understanding of the gravity of the public health violations which necessitated the order. Within seven days, serve the Inspection Report by delivering in person or by first class and certified mail, return receipt requested, a copy of the Inspection Report to the occupant, owner and mortgage or lien holder. M.G.L. c. 111, Sect 12B; 105 CMR 410.833.

Step Four: Draft an Enforcement Order that lists specific violations with the material facts and conditions that support your determinations. 105 CMR 410.830. Based upon the totality of the violations, the board of health must indicate in the Order a finding that the building: (1) is or may become a nuisance, harm or threat of harm to the public health; (2) is or may cause sickness or home accident to the occupant or the public; and/or (3) is unfit for human habitation. M.G.L. c. 111, Sect. 127B. The Enforcement Order must provide a schedule for compliance to correct each identified violation. 105 CMR 410.830. Lastly, the board must serve the Enforcement Order upon the occupant, owner and mortgage or lien holder using the process previously described in Step Three. As will be discussed, the board of health may not condemn a building unless it has determined that the building is unfit for human habitation.

Step Five: Draft and, in the manner previously described in Step Three, serve upon the occupant, owner and mortgage or lien holder a Re-Inspection Notice indicating the place and time the building will be reinspected.

Step Six: Conduct the inspection on the date and time indicated in the Re-Inspection Notice.

Step Seven: Draft and, in the manner previously described in Step Three, serve upon the occupant, owner and mortgage or lien holder an Inspection Report detailing the specific violations with material facts and conditions upon which your findings are based. M.G.L. c. 111, Sect. 127B).

Step Eight: Assuming the owner/occupant has failed to comply with the Enforcement Order, draft and, in the manner previously described in Step Three, serve upon the occupant, owner and mortgage or lien holder a Notice of Hearing to Condemn the Building. The Notice must: (1) enclose copies of all applicable Inspection Reports; (2) indicate that the board of health is considering a finding that the building is unfit for human habitation; (3) state that the board may order the building condemned; and (4) list the place and time the hearing will occur. 105 CMR 410.831B(2-4). If the danger is immediate, the board may condemn the building and hold the hearing after the fact. M.G.L. c. 111, Sect. 127B; 105 CMR 410.831(D).

Step Nine: Hold the hearing at the place, date and time indicated on the Notice of Hearing to Condemn the Building to determine whether the building is unfit for human habitation and whether an Order to Secure and Vacate the premises should be issued. 105 CMR 410.831(C).

Step Ten: Draft and, in the manner previously described in Step Three, serve upon the occupant, owner and mortgage or lien holder an Order to Secure and Vacate the Premises. Enclose a written finding that the premises are unfit for human habitation and state the material facts and conditions upon which that finding is based. 105 CMR 410.831(E). In addition, the board must supply displaced persons with information concerning public and private housing programs, social and economic assistance programs, and suitable replacement housing. M.G.L. c. 79A, Sect. 6(1-3).

There are a number of administrative agencies which may offer services or have a list of potential providers in your municipality, e.g. Massachusetts Department of Housing and Community Services (617) 727-7130; Massachusetts Housing Partnership (617) 338-7868; Massachusetts Department of Social Services (617) 748-2400; Massachusetts Rehabilitation Commission (617) 204-3850; Massachusetts Offices on Disabilities (617) 727-7440; Massachusetts Department of Mental Retardation (617) 727-5608; and the Executive Office of Elder Affairs (617) 727-7750.

Step Eleven: If a hearing before the board of health is not filed after seven days of the Order to Secure and Vacate, the board of health shall placard the building indicating that it is unfit for human habitation and that no person shall use the building for habitation until written approval from the board of health. 105 CMR 410.950(A-B).

Step Twelve: If a person refuses to leave the dwelling after it has been placarded, the board of health may request that the local police forcibly remove the person. 105 CMR 950(C).

Step Thirteen: At the board’s discretion, it may: (1) clean or repair the condemned property; or (2) one year after the issuance of the Order to Secure and Vacate, issue an Order for the Destruction of the Condemned Property which shall be served upon the owner and mortgage or lien holder as previously described in Step Three. 105 CMR 410.831(F); 950(D); 960(A). The board of health may recover the costs incurred as a result of cleaning, repairing or destroying from the owner and/or responsible persons. 105 CMR 410.950(D); 960(A).

In conclusion, the process of condemning a dwelling can be time consuming, costly and fraught with political and policy considerations. Nonetheless, condemnation is a powerful and often efficient tool which boards of health may utilize to coerce compliance with public health laws. Its efficacy will depend on a number of common sense considerations including the effected individual’s capacity to appreciate the loss of the property involved.


Banking Commissioner Replies to Montague Board of Health

The following is the text of Commissioner Thomas Curry’s reply to the Montague Board of Health (see previous page.)
This letter is in response to your correspondence dated .September 21, 1999 to the Division of Banks inquiring about a mortgagee’s responsibility on an abandoned or unmaintained building. Specifically, you inquired as to how such situations tie into the Massachusetts Community Reinvestment Act (CRA) statute, section 14 of chapter 167 of the General Laws and its implementing regulations, 209 CMR 46.00 et seq.

The division has jurisdiction over Massachusetts state-chartered financial institutions and out of state, state-chartered financial institutions that have been granted authority to establish bank branches in the Commonwealth. By law, the Division is required to examine and or regulate these institutions in operation. The Division also oversees Community Reinvestment for state-chartered institutions. The Massachusetts Community Reinvestment Act requires that state-chartered institutions make credit available to all segments of their delineated assessment area(s), including low and moderate-income neighborhoods, consistent with the safe and sound operation of the institution.

There are several performance tests and standards that the Division will utilize in evaluating an institution’s CRA performance. One of these is the lending test, which evaluates an institution’s record of helping to meet the credit needs of its assessment area(s) through its lending activities. The Division evaluates an institution’s lending performance pursuant to several criteria including lending activity; geographic distribution of loans; fair lending; and loss of affordable housing.

In addition, the Division will also consider an institution’s qualified investments and services in evaluating overall CRA performance. The Massachusetts CRA statute and regulation do not specifically address a mortgagee’s responsibility on an abandoned or unmaintained building. During the course of a CRA examination, however, the Division will consider whether or not an institution demonstrates an undue concentration and/or a systematic pattern of lending that has resulted in the loss of affordable housing. Such activity could adversely impact an institution’s CRA rating. Further, from a safety and soundness perspective, a lender would want to ensure that there is sufficient value for any property given as collateral for a loan. This is typically verified by the Division within the confines of a confidential safety and soundness examination.

Under the Community Reinvestment Act, institutions are evaluated on their innovative and flexible lending practices and community development lending activities as mentioned above. An institution that takes a more proactive approach in dealing with housing matters as they relate to CRA will be looked upon more favorably during the course of an CRA examination than an institution that plays a more passive or limited role. Further, actions by a financial institution which negatively impact low and moderate-income individuals could have an adverse impact on an institution’s CRA rating.

Your letter identifies two specific concerns pertaining to two different financial institutions. One matter pertains to the United Bank in Greenfield, Massachusetts and it appears from your letter that the bank is working to resolve this matter. As a state-chartered savings bank, United Bank is subject to supervision by the Division. Subsequent to your letter, United Bank merged with and into The Bank of Western Massachusetts, which is also subject to the Division’s supervision. That merger became effective on September 26, 1999.

The other instance is with BankBoston whom you indicate has not responded to requests to resolve this matter. As a federally chartered institution, BankBoston does not fall within the jurisdiction of the Division. As such, a copy of your letter has been forwarded to the Office of Comptroller of the Currency for their review. The Division is committed to making sure that all state-chartered financial institutions meet their obligations under Massachusetts CRA.

While the Division does not have the legal authority to enforce the requirements of 105 CMR 410:00, we nonetheless will take into consideration any actions or activities which an institution has engaged in that are detrimental to low and moderate-income individuals or areas when evaluating an institution’s overall CRA performance. The Division meets with its CRA examination staff on a regular basis. Examiners will be notified of the issues you have raised. Should you need further assistance, please feel free to contact me at (617) 956-1500, ext. 510, or Bonita Irving, Deputy Commissioner for Community Reinvestment and Outreach at extension 561.


Violations of the State Sanitary Code and Municipal Zoning Ordinances: Should Housing Violations Be Corrected in Illegal Units?

by Jana Ferguson
Scenario: A Board of health identifies several violations of Chapter II of the State Sanitary Code during a housing inspection. Afterward, the board discovers that the residence also violates local zoning regulations. The Department of Public Health has been asked to address the preceding scenario.

Does enforcement of zoning requirements take precedence over inspection and enforcement of the Sanitary Code? If so, what are the liability implications for the board of health if it failed to inspect and enforce potential health and safety violations?
The Office of the General Counsel has determined that the Sanitary Code and local zoning ordinances can be enforced independently of each other. The following is the Department’s response based upon a search of relevant statutes and case law.

The State Sanitary Code is a state law (M.G.L. c. 111, section 127A) which authorizes the Department to issue regulations relating to matters of public health and safety, and delegates enforcement of the Code to the local boards of health. Regulations promulgated by the Department state that, “The Sanitary Code shall apply throughout the Commonwealth unless and to the extent the provisions of any chapter are expressly limited.” (105 CMR 400.010)

An opinion of the Attorney General states that the “State Sanitary Code is applicable throughout the Commonwealth and is enforceable whatever the area or situation.” (Op. Atty. Gen., June 3, 1966, p. 361) Under this language, zoning enforcement does not supersede the State Sanitary Code unless directly authorized to take precedence by an express provision contained in an applicable statute, regulation, or case law.

The Department has not identified any relevant statutes, regulations, or case law that would suggest that zoning enforcement should take precedence over the State Sanitary Code. In the absence of any such express authority, it must be assumed that there is no such priority of zoning ordinances over the Sanitary Code.

The Department Concludes that the Sanitary Code and local zoning ordinances can be enforced independently of each other in any order the municipality chooses. Therefore, the Department recommends that local boards of health inspect and enforce the State Sanitary Code regardless of whether a unit is also in violation of local zoning requirements. Clearly, if the health inspector identifies such zoning violations, the appropriate zoning authority should be notified.

As a practical matter, the Department encourages Code inspectors to work closely with zoning/building inspectors when both Code and zoning violations exist and to inform the property owner of the nature of both violations. As long as the unit continues to be occupied, the board of health should enforce compliance with the Sanitary Code. Once the unit is vacated, the board may choose to dismiss one or all outstanding violations, as appropriate. Reprinted from the Reporter Autumn 1999 p. 28


Intra-Municipal Conflict

Boards of Health often must defend their authority to pass regulations, inspect, enforce and permit activities. The regulated community often finds it difficult to accept board authority, especially when it interferes with special interests.

Harder to justify is the combative attitude of some town officials. Selectmen or town managers sometimes set a hostile tone for appointed town officials. The following is a case in point. The names of both innocent and ignorant have been withheld for their own protection.

A board of health received the following letter of complaint from The Building Inspector:
“Re: Complaint It has been brought to my attention that the health agent….is doing inspections within 10 ‘ of the building and also inside the building. I am of the understanding that he is outside of his jurisdiction which starts 10’ from the building. I would like to know why the Board is allowing this to take place, whereas …. is not a licensed plumber or licensed electrician. I would appreciate if (sic) this would not happen in the future as our inspectors are all qualified to do their jobs and perform the appropriate inspections….

c.c. board of Selectmen”

The Board of Health Agent responded as follows in a letter to the board of health: “With all due respect to the Building Inspector[‘s]…… recent letter, he is clearly incorrect in his complaint regarding the jurisdiction of the Board of Health agent when he states that it is forbidden for the Board of Health agent to inspect anything at all within 10 feet of a building or within a building.

I am unaware of any state or local law or regulation that states that. Title 5, 310 CMR 15.002 defines the Building Sewer, which is part of the septic system, being the pipe between the building and the septic tank, as “a pipe which begins outside the inner face of a building wall and extends to an on-site system or municipal or private sewer”.

Further, 310 CMR 15.222 sets for the specifications for building sewers which the Board of Health is required to enforce, and therefore has the authority to inspect for compliance. Since the plumbing code gives jurisdiction of this pipe to the Plumbing Inspector also, this is indeed an area of joint jurisdiction, and was known and intended to be so by the framers of Title 5.

The Board of Health has legal and reasonable regulations adopted under the authority of Massachusetts General Laws, Chapter 111, Section 31, which specify that certain components be installed when a pump system is used as follows: Section XII.1.b requires that a pump installation shall include a control panel, which includes for each pump, a Manual On – Manual Off -and Automatic ON-OFF Switch, visual alarm, audible alarm and audible alarm silencer switch. There shall be a minimum of 3 switches in the pump chamber. Section XII.1.c. requires that the pump electrical system shall be equipped with a transfer switch to allow connection to a portable generator.

This is obviously a necessary component in the event of a power failure. …it is obvious that I must enter the building to confirm that they have indeed been installed. I also verify that the alarm will activate from the switch in the pump chamber. It is important to note that at no time do I inspect the wiring or the plumbing work as to compliance to any code. Those items are the jurisdiction of the electrical and plumbing inspectors and I respect that totally….However I obviously have the right and necessity to see that those components have indeed been installed. If they have not been installed, or if I can not see them to confirm that they have been installed, I can not and will not issue a Certificate of Compliance for the on-site disposal system…”

The Town Counsel was requested to submit an opinion, which reads in part: “…It appears to me that what we have here is a simple matter of overlapping jurisdiction. The Building Department must assuredly does not have the authority to inspect the electrical components of the pump system and the plumbing out to ten feet from the house, for compliance with electrical and plumbing code requirements.

The Building Department has the sole authority to determine, at the local level, whether a job is in compliance with those requirements. The Board of Health, on the other hand, has the primary authority to enforce Title 5 and its duly adopted regulations relating to the construction of septic systems, for which inspections are necessary. Title 5 requires standby power or a hookup for standby power where a pump is installed; The Board of Health has clear authority to supplement that requirement by requiring additional safety equipment (alarms, switches, etc). …The fact that the plumbing and electrical inspectors may be looking at the same equipment for their own purposes certainly does not preclude the Board of Health or its agent from doing so under Title 5.

For those reasons, I do not agree with the suggestion in [the building inspector’s] letter that it is inappropriate for [the health agent] to inspect septic system components within ten feet of the building they are intended to serve. In [the agent’s] memo, he states that he inspects only to verify that the required components have been installed, and that he leaves the matter of whether the installation conforms to electrical codes to the electrical inspector. This is the correct allocation of responsibility in such cases….”


New Food Code

by Anthony Brunetta; Brunetta Associates
In the coming months, Boards of Health will have a new tool in the fight against foodborne illnesses…a new food code. The new food code will be a departure from the current CMR590.000 in that it will use the FDA 1999 Food Code as a principal reference source, with a supplemental document listing modifications and additions specific to Massachusetts. The two documents, used together, will comprise the new regulation, 105 CMR 590.00 Minimum Sanitation Standards for Food Establishments – Chapter X. The Original FDA Food Code was introduced in 1993. The Code is updated every two years to reflect the most current science and the best approaches to ensure a safer food supply. The Code is neither federal law nor federal regulation, but rather a reference document that can be adopted in whole, or in part, by agencies responsible for managing food safety risks in food related operations. By adopting the FDA Food Code by reference, because it is updated every two years, Massachusetts regulations will always reflect the most current information and conform to federal standards. Because the new Food Code is more comprehensive than the existing CMR 590.000, the DPH plans statewide training programs to ensure that training in the requirements of the new code will be available. The new code will also include provisions for Food Manager Certification. It is anticipated that, effective one year from the date of promulgation of the new regulations, food establishments must employ at least one full time equivalent on-site manager who is at least 18 years of age and designated as the person(s) in charge. This person shall demonstrate knowledge by compliance with the Code and providing documentation of passing a food safety management test administered by a testing organization recognized by the Department of Public Health. Boards of Health will be responsible for ensuring that food establishments within their jurisdiction meet these minimum requirements. Of course, local Boards of Health have the authority to exceed these minimum requirements if they feel that one certified person per establishment is not sufficient, or if inspection reports disclose that additional supplemental training might be necessary. This new regulation is likely to spawn a number of new entrants into the certification arena, some experienced, knowledgeable and qualified instructors… and some not. Boards of Health should contact the Department of Public Health to obtain a list of approved trainers and recognized testing organizations. Implementing the new Food Code along with the food manager certification provisions can be a daunting task for the local boards of health.

The FDA 1999 Food Code is available on-line at www.ntis.gov/fcpc, by email at orders@nullntis.fedworld.gov, by fax at (702)805-8900 or by calling NTIS at 800 553-6847. When available, the revised CMR 590.000 supplement can be purchased at the State Book Store, Rm 116, Massachusetts State House, Boston, MA., or at the Western Office of the Secretary of the Commonwealth, 436 Dwight St., Springfield, MA. The CMR 590.000 supplement will also be available at the MDPH Division of Food and Drug Protection web site: www.state.ma.us/dph/fpp.htm.


Washed Stone Requirement
Open Letter to DEP Commissioner Lauren Liss

Dear Commissioner Liss:

The Southwick Board of Health is writing to share our concerns and offer some recommendations to help insure that suitable “double washed stone” is utilized for installations of individual on-site septic systems within the Commonwealth.

As you know, the revised Title 5 has resulted in significant cost increases from the pre-1996 code revision. Septic system costs ranging from $5,000 to 40,000 are not uncommon for this region. The increased costs result primarily from three factors. The first factor is soil absorption systems (SAS) are often raised above existing grade as a consequence of using soil mottling to establish estimated seasonal high groundwater. Secondly, the loading factors for some percolation rates have been reduced up to 70% from the pre-1996 code. And thirdly, Title V sand requirements result in more expensive fill used in raised systems.

Of all the variables associated with these burgeoning costs, those relating to how local jurisdictions handle the issue of “double washed stone” remains the most problematic. An ongoing problem for our colleagues and ourselves is how to effectively evaluate the quality of “double washed stone” typically required in over 75% of SAS’s within our jurisdiction. 310 CMR 15.247 requires that the base aggregate for leaching “shall consist of double washed stone ranging from 3/4 to 1 1/2 inches in diameter and shall be free of iron, fines and dust in place”.

The Department of Environmental Protection (DEP) responded to local Boards of Health’s growing concerns in 1998 by offering a “bucket test”. This was an attempt to provide some guidance to local boards in determining whether double washed stone samples met the intent of CMR 15.247. While the DEP’s intent in providing the “bucket test” was to offer much needed assistance, it has a number of serious flaws including inconsistency and reproducibility.

Recent attempts to utilize the “bucket test” have proved confusing at best. At a Title 5 seminar in Greenfield in fall 1998, we `tested’ several samples of “double washed stone”. One sample in particular, looked and felt reasonably clean to the attendees. When subjected to the “bucket test” however, the sample failed quite convincingly. All of the five samples provided, failed the bucket test.

A DEP representative indicated that some Eastern Massachusetts stone processors have been able to meet these regulations and if local Boards of Health “insisted on clean stone”, the stone processors would comply. Three significant flaws in that logic need to be addressed. First, the statement presumes that stone processors are capable of reasonably and economically processing stone for the contractor. Second, that local Health Departments are able to monitor and enforce this requirement consistently on a site by site basis. And finally, is the issue of where the bucket test should be conducted (at the plant, in the back of the truck, or after placement in the septic system). We believe the results would vary considerably depending on the location sampled. Title 5 regulations provide no guidance regarding this important consideration.
Given that current DEP thinking purports that clean stone is essential for the safe and long term operation for on-site sewage disposal, we offer the following recommendations.

Recommendation #1: Realistic expectations of stone processors

Our first recommendation is to ascertain whether it is reasonable to conclude that local stone processors are capable of meeting the intent of Title 5 guidelines. Our conversations with some area processors appear they cannot. The code requirement that the “double washed stone” be “free of fines” is untenable and needs revision to a realistic level. Though CMR 15.247 calls for stone that is “free of iron, fines, and dust in place”, many individuals working in the field agree that this is an impossible standard to meet. DEP provides no guidance whatsoever on what is an acceptable level.

DEP should actively solicit input from area stone processors. It appears that some area processors had not been contacted initially during promulgation of these regulations and their input should be sought. A meeting with DEP, area stone processors, and representatives from local Boards of Health to discuss realistic expectations for production of a suitable product is strongly advised.

Recommendation #2: Consistent specifications for stone processors

DEP provides little guidance on the methodology for “double washing”. The processors are left without instruction for this important operation. What is needed is an established protocol, that when properly followed, results in a consistent product acceptable to DEP and local Boards of Health. This protocol should include processing specifications such as pressure and volume of the water stream, quantity and relative purity of the wash water, and parameters on the volume of material passing a given point per unit time. Only when clear and realistic guidelines are standardized statewide can we expect a consistent product to emerge.

Recommendation #3: Determine the suitability of the “bucket test

The third recommendation is to determine the efficacy of the “bucket test”. At present, it appears the test is indefensible based on the tests subjectivity and inconsistent results. What is needed in our view, is a scientific study to determine whether this test meets the intent of CMR 15.247. Massachusetts is home to some of the country’s foremost laboratories and engineering colleges that might assist the Department in this regard. If the test (or a modification thereof) is found to be scientifically defensible, then it should be included into Title 5 regulations and not simply suggested as a `guide’.

Recommendation # 4: Consider licensing stone processors

At present, almost every phase of the Title 5 process is regulated to some degree. A typical scenario for a repair of a septic system is as follows: The Title 5 inspection is performed by a licensed Title 5 inspector who inspects the septic system typically during property transfer. If the Title 5 inspection fails, a certified soils evaluator performs the required percolation test. A professional engineer or registered sanitarian then prepares a septic system repair plan. The Board of Health next reviews the septic design and once approved, issues a permit. Upon proper construction of the septic system, the Board of Health issues a Certificate of Compliance.

In addition to the licensed personnel involved throughout the Title 5 repair process, Title 5 regulations specify construction standards which reference American Society of Testing Materials (ASTM). For example, various pipe strengths are required as are specifications for the strength of concrete used in septic tanks and other structural components. Finally, even the Title 5 sand needs to pass certain gradation requirements for it to be utilized as fill. There is no such requirement in place for “double washed stone”. How is it then, that one of the most essential components of a properly functioning septic system (i.e. clean stone), is left to the discretion of the individual stone processor and local Boards of Health?

Currently, some towns are selectively rejecting stone that is `too dirty’ based either on visible observation or the Health agents interpretation of the “bucket test”. The dividing line for stone that is `too dirty’ is ambiguous especially since CMR 15.247 implies stone must be `free’ of fines. What does `free of fines mean’? Is it 0%, 5%, 10%? Installers are left trying to locate suitable stone in the area acceptable to local Boards of Health. This is tantamount to requiring installers to certify that the concrete used in septic tanks is 4000 Psi with a density of 140 Pfc. (15.226 (2) (a)). Similarly, if installers purchase pipe stamped schedule 40 pvc, they can be reasonably assured that product meets the intent of Title 5. No other provision within Title 5 requires that installers (and by default Boards of Health), make on site judgments when purchasing any other component for septic systems.

The solution, in our view appears both straightforward and logical. The Commonwealth should consider licensing “double washed stone processors”. In this way, they could be inspected periodically and the onus would now rest on stone processors themselves instead of contractors and local Boards of Health. This would minimize uneven and inconsistent enforcement from local Boards of Health.

Present regulations governing production, storage, transport, testing and monitoring of “double washed stone” are inadequate. Local Boards of Health are ill-equipped to consistently evaluate the stone used in an increasing number of septic systems within the Commonwealth. Contractors have little recourse but to use what is available locally, then hope that it meets the intent of CMR 15.247. Stone manufacturers are left to process “double washed stone” as they see fit with little or no repercussions when they fail to do so adequately.

If the Commonwealth of Massachusetts is concerned about maintaining a consistent level of environmental protection amid the significant financial burden placed on its citizenry by Title 5 regulations, then this issue needs to be addressed in a timely and rationale manner.

Sincerely,
Southwick Board of Health
Thomas J. FitzGerald, R.S. , M.S., Agent
Arthur G. Pinell, Chair
Susan Brzoska, Member
Dianna Garibidian, Member

 


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