[Adopted 11-18-2008]
A. 
The Town of Orleans Board of Health, in accordance with, and under the authority of, Chapter 111, Section 31 of the Massachusetts General Laws, does hereby adopt the following rules and regulations.
B. 
The effective date of this regulation shall be July 1, 2009.
Orleans, like most of the towns on Cape Cod, has experienced rapid population growth and development since the early 1960's. Local responses have included adoption of 1 acre zoning in 1973. Also the Board of Health adopted Subsurface Sewage Disposal Regulations to supplement and augment the provisions of Title 5 of the State Environmental Code. However, many under-sized lots remain 'buildable', and numerous pre-Title 5 subsurface wastewater disposal systems continue to operate.
The Federal Clean Waters Act (1977) requires the Massachusetts Department of Environmental Protection (DEP) to limit the discharge of pollutants entering water resources. Excess nitrogen has been identified as the major contributing factor in the declining health of the marine water environment. Excess phosphorus, and to some degree excess nitrogen, are the major contributing factors in the declining health of the freshwater environments. Ninety-nine percent of sewage disposal systems in town do little to remove nitrogen or phosphorus. A few systems are in place that partially remove nitrogen for the property they serve. In Orleans, this translates to an immediate concern over the level of nitrogen entering local groundwater and its subsequent effect on marine estuaries. Phosphorus has similar effects on freshwater resources.
In 2000, Orleans and other Southeastern Massachusetts communities joined the Department of Environmental Protection's Massachusetts Estuaries Project (DEP-MEP). The result of many years of water quality testing and five years of scientific analysis was the publication of a technical report by the DEP. This technical report lead to the establishment of Total Maximum Daily Limit (TMDL) standards of nitrogen for each estuary studied.
Local health officials now realize that on-site septic systems (both Title 5-compliant and not), soil conditions and hydrology allow rapid migration of groundwater to surface water bodies (ponds and estuaries). Sewage disposal systems in Orleans, while adequately protecting public health, do not remove any meaningful amounts of nitrogen or phosphorus and their discharge migrates rapidly into the groundwater. Locally controllable sources of nitrogen are primarily from septic system effluent and to a lesser extent from lawn fertilizer.
The Town of Orleans is in the process of developing a Comprehensive Wastewater Management Plan (CWMP). When adopted, the Plan will guide the phased construction of facilities to control nitrogen and phosphorus loading. This costly undertaking will likely take more than a decade to begin operating at an effective level, and longer to be fully functioning.
The documented scientific need and the regulatory mandate to address the issue of excess nitrogen released into local estuaries and the extraordinary lead-time required to fundamentally alter the way wastewater is managed are well known. The Orleans Board of Health adopts these regulations to minimize, to the extent possible, the increase of excess nitrogen and phosphorus in the local environment.
Currently nitrogen and phosphorous in groundwater is steadily increasing. The town must regulate the increase in nutrients entering the groundwater from septic systems that might affect ponds and estuaries. To minimize this increase in nutrients, the town must address the generation of wastewater on a parcel-specific basis by relating development potential to parcel size.
For purposes of this regulation, the following definitions shall apply:
APARTMENT
A structure, regardless of form of tenure, containing three (3) or more dwelling units, or a mixed-use structure containing three (3) or more dwelling units having a majority of floor area devoted to non-residential use.
APPROVED CAPACITY
The capacity of a 1978 Code system reflected by the sewage flow as shown on the Disposal Works Construction Permit Application or as shown on the Certificate of Compliance, whichever is less for that system and not the calculated capacity based on 1978 Code loading rates which may account for over design or safety factors. For a system designed in accordance with 310 CMR 15.000, the approved calculated capacity is based on the loading rates found at 310 CMR 15.242.
BEDROOM
Any portion of a dwelling which meets the Minimum Standards of Fitness for Human Habitation (Chapter II of the State Sanitary Code), and is designed to furnish the minimum isolation necessary for use as a sleeping area, and includes, but is not limited to, bedroom, den, study, sewing room, sleeping loft or enclosed porch, but does not include kitchen, bathroom, dining room, halls, living room, sun porch (as defined in these regulations) or unfinished basement.
DESIGN FLOW
The quantity of sanitary sewage, expressed in gallons per day (gpd), for which a system must be designed in accordance with 310 CMR 15.203.
DIVISION OF LAND
The division of a parcel of land or the modification of lot lines to create a new lot, including preliminary and definitive subdivisions, Approval Not Required (ANR) plans, Open Space Residential Developments (OSRD), and other legal means, and shall include re-subdivisions. The modification of existing lot lines, not resulting in the creation of additional buildable lots, shall not be a division of land.
DWELLING UNIT
One (1) or more rooms intended as a single housekeeping unit for the use of one (1) or more individuals living together, and having cooking, sanitary and sleeping facilities. A "dwelling unit" does not include garages, sheds or an accessory or additional structure, whether attached or unattached.
ENHANCED TREATMENT SYSTEMS
A septic system that is designed to increase removal of nitrogen from effluent as compared to that removed by a standard Title 5 septic system.
FACILITY
Any real property (including any abutting real property) and any buildings thereon, which is served, is proposed to be served, or could in the future be served, by a system or systems, where:
(a) 
legal title is held or controlled by the same owner or owners; or
(b) 
the local Approving Authority or the Department (DEP) otherwise determines such real property is in single ownership or control pursuant to 310 CMR 15.011 (aggregation).
LOT
An area or parcel of land in undivided ownership with definite boundaries, used or available for use as the site of one (1) or more buildings.
MULTI-FAMILY HOUSING
Condominiums, apartments, apartments incidental to commercial space, boardinghouses and congregate, cluster or attached housing where the individual units are either owned or rented.
NEW CONSTRUCTION
The construction of a new building for which an occupancy permit is required or an increase in the actual or design flow to any existing structure through addition, renovation or modification or a change in use. New construction shall not include replacement or repair of an existing building totally or partially destroyed or demolished if there is no increase in flow.
NITROGEN
All nitrogenous compounds.
NON-CONFORMITY
Does not meet the requirements of Title 5 or the Orleans Board of Health Regulations.
NUTRIENT SENSITIVE AREA
Those portions of the mainland of Orleans where groundwater, the aquifer, and adjacent estuarine environments can be significantly altered by addition of nitrogen or phosphorus; or those areas identified and required by Department of Environmental Protection-TMDL's to have nitrogen input mitigated.
ON-SITE SUBSURFACE SEWAGE DISPOSAL SYSTEM
A system or series of systems for the treatment and disposal of sanitary sewage below the ground as defined by 310 CMR 15.000 of the State Environmental Code, Title 5.
PHOSPHORUS
All phosphoric compounds.
SUN ROOM/PORCH
A room designed to have a minimum of 40% glazed area (window area) of the total combined exterior wall and ceiling area of the room. In calculating the total glazed area only the translucent or transparent window area should be considered (rough opening or unit dimension shall not be considered).
WATERSHED
For the purposes of this regulation a watershed is defined as the area of land under which the groundwater collects and flows towards or into a specific pond and/or estuary.
Except as explicitly set forth in § 185-107B, the provisions of the Orleans Nutrient Management Regulations shall apply to all facilities (properties) regardless of date of permit approval, construction or approved capacity of any septic system in the Town of Orleans.
A. 
Applications for New Construction, renovations, additions or change of use of a facility that increases the design flow to the septic system.
(1) 
Disposal Works Construction Permit Application
(a) 
Complete Applications for Disposal Works Construction Permits filed prior to July 1, 2009 shall be reviewed, and if approved, such system shall be constructed and a Certificate of Compliance shall be issued within three years of the date the application was approved.
(b) 
Upon receipt of a written request detailing the facts that prevented the filing of an application for a Disposal Works Construction Permit prior to July 1, 2009, the Board of Health or its agent may grant an applicant a six month extension to the required submittal date as defined in Subsection A(1)(a). Only one extension may be granted per parcel.
B. 
Building Permit Applications filed after the effective date of this regulation shall be reviewed as follows:
(1) 
If a there is an Active Disposal Works Construction Permit on file with the Health Department prior to the effective date of these regulations showing an Approved Capacity adequate for a specific project the Board of Health will sign off on a building permit application for that project if the applicant demonstrates that the sewage disposal system will be constructed and connected to the foundation wall and a Certificate of Compliance can be issued prior to the expiration of the Disposal Works Construction Permit.
(2) 
If there is a complete Application for Disposal Works Construction Permit filed with the Health Department prior to the effective date of these regulations showing an Approved Capacity adequate for a specific project the Board of Health will sign off on a building permit application for that project if the applicant demonstrates that the sewage disposal system will be constructed and connected to the foundation wall and a Certificate of Compliance can be issued prior to the expiration of the Disposal Works Construction Permit.
(3) 
If there is an existing septic system with an Approved Capacity as shown on the Disposal Works Construction Permit or as shown on the Certificate of Compliance on file with the Health Department, which Approved Capacity is sufficient for the proposed project, the Board of Health will approve the project if the building permit application for the project is filed prior to July 1, 2012.
(4) 
Any application for a building permit filed after July 1, 2012, regardless of the Approved Capacity of the septic system will be subject to the full provisions of these regulations.
A. 
The following projects shall be subject to the provisions of this regulation:
(1) 
New commercial development with a Title 5 sewage flow under 10,000 gallons per day.
(2) 
Existing commercial development with a total Title 5 sewage flow of under 10,000 gallons per day where an addition or a change in use is proposed that will increase the sewage flow over the existing flow but still be less than 10,000 gallons per day.
(3) 
Division of Land creating more buildable lots, regardless of existing dwelling units.
(4) 
Construction of multi-family housing.
(5) 
Construction of single family dwellings.
(6) 
Alterations, additions or changes in use to existing dwellings that would increase the calculated sewage design flow.
(7) 
The division of land involving existing dwelling units.
B. 
The following are exempt from the provisions of this regulation:
(1) 
Facilities with a design flow of 10,000 gallons per day or greater which fall under the jurisdiction of the Massachusetts DEP Groundwater Discharge Permit Program.
(2) 
Properties located within the Village Center District as defined by The Orleans Zoning Map.
(3) 
Properties located within the General Business District as defined by The Orleans Zoning Map with the exception of apartment developments having three or more dwelling units.
(4) 
Properties located in the Industrial District as defined by The Orleans Zoning Map.
A. 
No Disposal System Construction Permit shall be issued by the Board of Health or its Agent for any of the projects described in § 185-107A above unless the proposed system is designed to receive or shall receive four hundred forty (440) gallons per day or less per forty thousand square feet (40,000) of lot area or ratio thereof.
B. 
This regulation shall not prohibit the construction of a two (2) bedroom house on any lot providing that said lot is not in an area subject to Nitrogen Loading Limitations or a Nitrogen Sensitive Area, as defined in Title 5 or in District II of the Orleans Ground Water Protection District and all other Local and State requirements are met.
C. 
No facility described in § 185-107A shall be expanded or have a change of use that increases the design flow until a Disposal System Construction Permit has first been obtained, unless the Board of Health, or its Agent, determines that the existing sewage disposal system is adequate (per Title 5 and the Orleans Board of Health Subsurface Sewage Disposal Regulations), including documentation that the facility's design flow is less than or equal to 440 gallons per 40,000 square feet of lot area or the ratio thereof.
D. 
The owner of any lot reduced in area by the laying out, and acceptance of, a road or roads as a public way or ways, or for any other municipal purposes serving the common good, shall be allowed to use the area taken in determining compliance with this regulation. This shall apply only to the owner of record at the time of the lot's reduction in area.
E. 
The division of land involving existing dwelling units shall not render the existing dwelling unit as noncompliant with these regulations.
A. 
Variances from this regulation may be granted by the Board of Health only as follows:
(1) 
Variance Requests not Demonstrating a Hardship:
(a) 
For residential lots less than 40,000 square feet the Board may allow, by variance, an additional 110 gallons per day over the number allowed by § 185-108A and B with the use of an Innovative/Alternative Nutrient Reducing Technology in conjunction with the on-site subsurface sewage disposal system.
(b) 
If applying for a variance under Subsection A(1)(a) an applicant shall supply a nitrogen loading report, accepted by the Board of Health, prepared by a Professional Engineer or Registered Sanitarian demonstrating that the proposed septic system will offer the same level of protection to the ground or surface water resource as would be provided by the strict application of this regulation.
(c) 
Only technologies approved by the DEP for enhanced nutrient removal pursuant to either the piloting, provisional or general use certification provisions in Title 5 (310 CMR 15.281 through 15.288) may be used to comply with Subsection A(1)(a).
(2) 
Standard of Review for all other variances:
(a) 
If the applicant demonstrates to the satisfaction of the Board of Health, that a literal enforcement of this regulation would involve substantial hardship, financial or otherwise, to petitioner(s), i.e. it would deprive the landowner of reasonable use of the lot in question; and
(b) 
If the applicant demonstrates to the Board of Health that the discharge of effluent from the proposed septic system will offer the same level of protection to the ground or surface water resource as would be provided by the strict application of this regulation.
B. 
Every request for a variance shall be made in writing and shall state the specific variance sought and the reasons therefore. No variance shall be heard except after the applicant has notified all abutters by certified mail at his own expense at least ten (10) days before the Board of Health meeting at which the variance request will be on the agenda. The notification shall state the specific variance sought and the reasons therefor.
C. 
If applying for a variance under Subsection A(2) above, the petitioner shall at a minimum submit:
(1) 
Written documentation as to why the enforcement of this regulation would cause hardship.
(2) 
A nitrogen loading report, accepted by the Board of Health, prepared by a Professional Engineer or Registered Sanitarian demonstrating that the proposed septic system will offer the same level of protection to the ground or surface water resource as would be provided by the strict application of this regulation.
(3) 
A plan prepared by a Professional Engineer or Registered Sanitarian indicating:
(a) 
The Watershed and Sub-Watershed in which the proposed septic system is located;
(b) 
Depth to ground water;
(c) 
Soil conditions; topography;
(d) 
All surface waters;
(e) 
All wetlands located within two hundred feet (200') of the proposed system;
(f) 
Any other information deemed pertinent by the Board of Health.
D. 
The Board of Health will consider, but not be limited to, the following factors when reviewing a variance application:
(1) 
Setbacks from surface water resources.
(2) 
Present or future private or public drinking water wells.
(3) 
The implementation schedule of the town's Comprehensive Wastewater Management Plan.
E. 
Any variance granted by the Board of Health shall be in writing. Any denial of a variance shall also be in writing and shall contain a brief statement of the reasons for the denial. While it is in effect, a copy of each variance granted shall be made available to the public at all reasonable hours in the office of the Health Department.
F. 
Any variance or other modification authorized to be made by this regulation may be subject to such qualifications, revocations, suspensions, or expiration as the Board of Health expresses in its grant. A variance or other modification authorized to be made by this regulation may otherwise be revoked, modified, or suspended, in whole or in part, only after the holder thereof has been notified in writing and has been given the opportunity to be heard, in conformity with the requirements for an order and hearing as contained in 310 CMR 11.07 and 11.08 of the State Environmental Code, Title 5.
G. 
Any variance or modification authorized by this regulation shall be subject to a covenant from the owner which shall be recorded in the Registry of Deeds or Registry District of the Land Court, as appropriate, stating that:
"At such time as the Town of Orleans through its Board of Health and/or Board of Water Commissioners, or the equivalent of those Boards, directs the connection of the land herein described to a municipal sewer, the construction of enhanced wastewater treatment system, connection to a shared septic system, or any other wastewater management option for the removal of nitrogen (or phosphorus), [owner], for myself and my successors and assigns, covenant and agree to comply with such direction. The Board of Health and/or the Board of Water Commissioners, or the equivalent of those Boards, shall determine the schedule for compliance."
The Orleans Board of Health, its designated agents, enforcement officers and anyone with police powers, may enforce this regulation.
A. 
The Board of Health and its designated agents may issue orders requiring the owner or operator of a facility to comply with the provisions of this regulation or to take any other action necessary to protect public health, safety, welfare, or the environment.
B. 
Orders may be served on any person responsible for a violation of this regulation in accordance with the following procedure:
(1) 
Personally, by any person authorized to serve civil process, or
(2) 
By any person authorized to serve civil process by leaving a copy of the order at his/her last and usual place of abode, or
(3) 
By sending the owner a copy of the order by registered or certified mail, return receipt requested, if he is within the Commonwealth, or
(4) 
If his last and usual place of abode is unknown or outside the Commonwealth, by posting a copy of the order in a conspicuous place on or about the premises and by advertising it for at least three out of five consecutive days in one or more newspapers of general circulation within the municipality wherein the building or premises affected is situated.
A. 
Unless otherwise specified in this regulation, any person aggrieved by the determination of the Health Department or other personnel of the Board of Health, may request a hearing before the Board of Health by filing a written petition to the Board of Health.
B. 
Upon receipt of such petition, the Board of Health shall set a time and place for such hearing and shall inform the petitioner thereof in writing. The hearing shall be commenced no later than 30 days after the day on which the order was served. The Board of Health, upon application of the petitioner, may postpone the date of hearing for a reasonable time beyond such 30-day period if, in the judgment of the Board of Health, the petitioner has submitted a good and sufficient reason for such postponement.
C. 
At the hearing the petitioner shall be given the opportunity to be heard, to present witnesses or documentary evidence, and show why the decision of the Health Department or other agents of the Board of Health should be modified or withdrawn. Failure to hold a hearing within the time period specified shall not affect the validity of any order.
Any person aggrieved by the final decision of the Board of Health with respect to any order issued under the provisions of this regulation may seek relief therefrom in any court of competent jurisdiction, as provided by the laws of this Commonwealth.
A. 
Violation of this regulation will be subject to the provisions of Massachusetts General Laws, Chapter 40, Section 21D, regarding non-criminal dispositions as adopted by the Town of Orleans.
B. 
Any person who knowingly violates any provision of this regulation may be subject to a One Hundred Dollar ($100) fine for each offense. Each day of noncompliance constitutes a separate offense.
A. 
Whenever possible, these regulations shall be deemed to be supplementary to (not contradictory with) state and federal statutes and regulations.
B. 
In the event any of these regulations shall be held invalid, any such regulation or regulations shall be deemed to be severed from the others and struck from these rules, but the remaining regulations shall continue in full force.