[HISTORY: Adopted by the Board of Health
of the Town of Eastham 3-5-2020.[1] Amendments noted where applicable.]
[1]
Editor's Note: This and the subsequent regulations in this
Part II superseded those in former Part II, Board of Health Regulations,
adopted 5-26-2005, 6-1-2007, and 11-18-2016, as amended.
In accordance with MGL, c. 111, § 31, the Eastham
Board of Health has adopted the following regulation to supplement
the provisions of 310 CMR 15.00: The State Environmental Code. The
Board believes that such a regulation for the Town of Eastham is necessary
to protect the public health and the environment.
A.
Construction in the Town of Eastham prior to the 1950s, at a time
when much of the Town was developed as a seasonal community, followed
by extensive development over the next three decades, yielded individual
on-site wells for water supply and individual on-site sewage disposal
systems (i.e., cesspools) for wastewater disposal. In 1978 the Massachusetts
Department of Environmental Protection (DEP) promulgated the first
Title V regulation creating higher standards for on-site systems and
in 1995 additional requirements resulted in further improvements.
Effluent from these on-site systems conveys nitrogen, phosphorus and
contaminants such as pathogenic bacteria, viruses, pharmaceuticals
and chemicals found in household products to our groundwater.
B.
It is recognized that the unique soil and hydrological conditions
of most Eastham land parcels make it challenging for sanitary and
environmentally safe wastewater disposal. The predominantly sandy
soil throughout Eastham allows wastewater to migrate rapidly from
individual sewage disposal systems to nearby surface waters, well
sites, and estuaries leading into our marine waters.
C.
Excessive nitrogen in wastewater has been identified as the major
factor in declining health of the marine water. Excess phosphorus
and nitrogen in wastewater are major contributing factors in the declining
health of freshwater ponds and our estuaries. Where on-site septic
systems are present increasing levels of nitrogen entering groundwater
can impact potable water supplies. Excessive nitrogen can also produce
nutrient loading of surface waters that can result in algae blooms
that choke aquatic life. In addition, the contaminants in the effluent
can lead to closures of shell fishing areas, prohibition of recreational
water activities, and have a harmful effect on the ecosystem.
D.
Nitrogen compounds found in septic system effluent can cause contamination
of drinking water, as documented in Water Resources of Outer Cape
Cod 1998 Final Report of the Lower Cape Water Management Task Force.
Consuming excessive nitrate-nitrogen may have serious health consequences.
There is strong evidence that nitrate-nitrogen can convert to nitrosamines
- known cancer-causing agents. Elevated nitrate-nitrogen concentrations
suggest that other forms of contamination may be present in effluent
posing additional threats to potable water.
E.
Although Eastham is currently developing a Municipal Water System,
the system will not be available Town-wide until 2022, and even then
many homes in Eastham may still be relying on private wells for drinking
water. The cumulative impact of septic system effluent from numerous
adjacent individual on-site sewage disposal systems will continue
to be a risk for contamination of potable water where wells are still
in use, and of ground and surface waters throughout Eastham.
F.
Cesspools provide minimal mitigation of nitrogen, phosphorus, and
contaminants entering the groundwater. Title V systems provide greater
mitigation of nitrogen and phosphorus flow in the effluent and may
provide some reduction in contaminants, but the flow must be limited
to limit the nitrogen, phosphorus and contaminants entering our groundwater
and water bodies. There is increasing pressure to build new or renovate
and expand old homes to accommodate expanding use, increasing the
discharge of wastewater effluent, and intensifying the threat to public
and environmental health. Some of our surface waters are highly impaired
even with our current requirement that, in most cases, each bedroom
requires a minimum of 10,000 square feet of property using a standard
Title V septic system. Increased flow beyond this standard would be
detrimental to our environment and increase health risks.
G.
With the prevalence of ponds, streams, and other surface water bodies,
as well as continued reliance on groundwater for public and private
drinking water, the discharge of wastewater continues to be a primary
concern throughout Eastham.
H.
In order to alleviate the further contamination of ground and surface
water resources, and to address threats to the public health and environment
that result from increased wastewater discharge, the Board of Health
of the Town of Eastham has determined that protective measures must
be taken. This regulation represents the minimum steps necessary to
protect the public health and the environment from the adverse effects
of the discharge of nitrate-nitrogen and other contaminants from individual
on-site sewage disposal systems into the Town's ground and surface
waters. The Town of Eastham is working to implement responsible plans
for the protection of the waters of Eastham in line with the Cape
Cod 208 cape-wide water quality plan update.
As used in this chapter, the following terms shall have the
meanings indicated:
A room or portion of a dwelling providing privacy consisting
of all of the following:
Floor space of no less than 70 square feet;
A ceiling height of no less than seven feet zero inches;
For new construction, a ceiling height of no less than seven
feet three inches;
An electrical service and ventilation; and
At least one operable window and a door or other similar device
that provides for a means of escape and access for rescue in the event
of an emergency as stated in State Building Code.
Those rooms or portions of dwellings satisfying the foregoing
criteria shall be considered "bedrooms" regardless of whether they
are referred to or designated as a:
Bedroom.
Finished attic where privacy is provided.
A finished basement room may be a bedroom if privacy and building
code conforming egress is provided.
A loft area no less than 70 square feet where privacy is provided.
Den.
Study.
Sewing room.
Enclosed heated porch where privacy is provided.
Family room where privacy is provided.
Rooms with finished cased openings less than 48 inches wide
(except pass-through rooms).
Rooms with exterior doors may be bedrooms.
Rooms over freestanding garages that have heat or a bathroom
or both that provides privacy.
Rooms over attached garages with direct access to the house
that provides privacy.
The following rooms or areas shall not be considered as a "bedroom":
Bathroom.
Kitchen.
Dining room.
Hall.
Unfinished basement or attic.
Open deck.
Garage.
Unheated porch or storage area.
Living room.
Unheated storage areas over garages.
If it is necessary to walk through a room to access another
room, then the walk-through room is not a bedroom because privacy
is not provided.
"Buildable Upland" shall be defined as land which is an area
which is not swamp, pond, bog, dry bog, fresh or salt marsh, areas
of exposed groundwater, stream and/or an area which is not subject
to flooding from high tides.
Any lot with a wetland/wetland resource area as identified above,
any land area (whether developed or not) that borders on and is within
100 feet of marshland, tidal flats, coastal dunes, barrier beaches,
coastal banks, coastal beaches, surface water or certified vernal
pool;
Any lot containing a maximum groundwater elevation (adjusted)
which is six feet or less below the natural ground surface elevation
in the area of installation;
Any lot of less than 20,000 square feet in size, developed or
undeveloped, that is directly abutted by three or more developed or
undeveloped properties of less than 20,000 square feet in size.
Condominiums, cottage colonies, apartments, apartments incidental
to commercial space, and congregate, cluster, or attached housing
where the land is communally owned but the individual units are either
owned or rented and where the total Title V sewage flow for the lot(s)
is less than 10,000 gallons per day.
A new septic system is one which is designed to serve a newly
constructed building or one which is designed to handle an increase
in sewage flow as required by changes in the building's use or
changes in habitable space.
"Nitrogen-reducing technology" is the same as alternative
systems as defined in 310 CMR 15.282(4) which are designed specifically
to reduce, convert or remove nitrogenous compounds.
A repair to a failed system is the replacement of a component
or components to provide a working system of the same sewage flow.
Subdivisions where lots are created and intended for the
construction of single-family homes or commercial dwellings.
A "coastal wetland" shall mean any coastal bank, coastal beach,
coastal dune, salt marsh, swamp, flat or other lowland subject to
tidal action, as defined by the Massachusetts Wetlands Protection
Act, MGL c. 131, § 40 and regulations promulgated pursuant
thereto at 310 CMR 10.00: Wetland Protection and/or the Eastham Conservation
Commission.
A "freshwater wetland" shall mean any bank, marsh, swamp, certified
vernal pool, flat or other lowland around a body of fresh water; lake,
pond, river, or stream subject to submersion due to rise and fall
of the level of water in the freshwater body, as defined by the Massachusetts
Wetlands Protection Act, MGL c. 131, § 40 and regulations
promulgated pursuant thereto at 310 CMR 10.00: Wetland Protection
and/or the Eastham Conservation Commission.
A.
Permit conditions. Disposal works construction permits are valid
for three years from the date of issuance, except in cases where a
variance from the requirements of Title V, pursuant to 310 CMR 15.410
through 15.415, is granted. In those cases, the permit is valid for
only one year from the date of Board of Health approval unless otherwise
specified. All variances, local upgrade approvals, etc., granted by
the Eastham Board of Health are valid for the length of time for which
the permit is valid, or for one year unless otherwise specified by
the Board of Health at the time of approval. No extensions shall be
granted without reapplication to the Eastham Board of Health. No more
than one extension shall be granted. Reapplication shall be made by
a request in writing to the Eastham Board of Health at least six weeks
prior to the expiration of the permit.
B.
Permitting steps. The following process must be followed:
(1)
Contact a professional engineer and/or sanitarian to request a soils
evaluations and percolation test. Your engineer/sanitarian will arrange
a date and time for the tests to be observed by the Health Department.
(2)
Submit a completed application for a disposal works construction
permit and the application fee. The application must contain the name
of the installer licensed in the Town of Eastham, and must be signed
by the installer. The following documents must be submitted with the
application for a disposal works construction permit:
(3)
If the septic design plan calls for a new well or municipal water
system connection, approval for the septic permit will not be granted
until:
(a)
The new well is installed and certification is submitted, including
routine and volatile organic compounds analysis of the well by a state
approved laboratory; or
(b)
An existing municipal water system connection is verified and
water lines are shown on the septic design plan; or
(c)
A new municipal water system connection, the water connection
application must be approved. A certificate of compliance will not
be issued for the septic permit until the water connection application
is closed.
(4)
The submitted plans must show, at a minimum:
(a)
The lot to be served.
(b)
Location and dimensions of the system (including reserve area).
(c)
Design calculations.
(d)
Existing and proposed contours.
(e)
Location and log of deep observation holes.
(f)
Location and results of percolation tests.
(g)
Location of any streams, surface and subsurface drains, and
wetlands within 100 feet of the sewage disposal system.
(h)
Known sources of water supply within 200 feet of the sewage
disposal system.
(i)
Location of any proposed well to serve the lot.
(j)
Location of water lines on the property.
(k)
Maximum groundwater elevation in the area of the sewage disposal
system.
(l)
A profile of the system.
(m)
Bench mark.
(n)
Slope calculations and requirements.
(o)
Variances from Title V and/or Board of Health requirements.
(p)
The plan must be prepared by a professional engineer, or other
professional authorized by law to prepare such plans.
(q)
All plans and as-builts should be provided to scale.
(r)
Plan must be no larger than 11 inches by 17 inches. If necessary,
an eleven-inch-by-seventeen-inch not-to-scale plan may be submitted
in conjunction with a larger plan to scale.
(s)
All plastic and concrete septic tanks shall be required to have
watertight risers with covers over inlet and outlet ports to within
six inches of finished grade. Manholes brought to final grade shall
be secured to prevent unauthorized access.
(t)
All plastic and concrete distribution boxes shall be required
to have watertight risers with covers over inlet and outlet ports
to within six inches of finish grade. Manholes brought to final grade
shall be secured to prevent unauthorized access.
(5)
Upon approval of the application for disposal works construction
permit, the Health Agent shall sign and date two copies of the engineered
site and sewage plan, and the disposal works construction permit.
(6)
Upon completion of the construction and prior to backfilling, the
installer will notify the Health Agent that the system is ready for
inspection. The Health Agent will inspect the system prior to backfilling.
After approval by Health Department the system can be backfilled.
(7)
The Engineer/Sanitarian will provide an "as-built" plan to the Board
of Health. The plan must be stamped by a Land Surveyor. An "as-built
plan" will be required to have the seal of a registered land surveyor,
or other professional authorized by law to prepare such plans showing
the location of the foundation, septic system, and well relative to
lot lines, wetlands, water courses, and other buildings and structures
on the lot.
(a)
As-built plans submitted for the above purpose shall not contain
any disclaimers.
(8)
Following receipt and review of the as-built plan and any documentation
required as a condition of approval, the Health Agent will date and
sign the certificate of compliance.
C.
General construction requirements.
(1)
Building materials.
(a)
Clay, terra cotta, and other such materials shall not be used.
At time of transfer or increase in flow any portion of the existing
system that utilized these materials must be replaced. All system
components shall conform to requirements in 310 CMR 15.211.
(2)
Minimum setback distances.
(a)
Unless otherwise specified by the Board of Health, septic tank
disposal fields, or other sewage disposal methods hereafter constructed,
shall be so located that distance of not less than 100 feet shall
intervene between any potable well or spring and any septic tank disposal
field. A distance of not less than 25 feet shall intervene between
any nonpotable well and any septic tank disposal field.
(b)
No soil absorption system shall be located within 100 feet of
any water body, water course, either permanent or intermittent, any
vegetated wetland, fresh or salt, as determined by predominance of
vegetational species; the top of any coastal bank; the landward toe
of any primary dune or the spring high water mark on any salt water
body or estuary; or the annual flood level of any freshwater body.
(c)
No septic tank shall be located within 50 feet of any water
body, water course, either permanent or intermittent, any vegetated
wetland, fresh or salt, as determined by predominance of vegetational
species; the top of any coastal bank; the landward toe of any primary
dune or the spring high water mark on any salt water body or estuary;
or the annual flood level of any freshwater body.
D.
New construction/increase in flow.
(1)
Building permit review. No person shall apply for or obtain a building
permit, foundation permit or occupancy permit allowing an increase
to the habitable area or number of bedrooms of a residential dwelling
or an increase to the area or occupancy of any nonresidential building
until the Board of Health or its agent has determined that the existing
sewage disposal system is adequate for the proposed increase or change
in use. Prior to applying for any of the foregoing permits to increase
the habitable area or number of bedrooms of a residential dwelling
or to increase the area of occupancy or change the use of a nonresidential
building, the owner or its representative shall file with the Board
of Health a site and sewage plan prepared by a registered professional
engineer or sanitarian. Said plan shall indicate whether a sewage
disposal system that complies with the requirements of Title V of
the State Environmental Code, 310 CMR 15.000, and the Board's
septic system regulations and well regulations, currently exists on
file or can be installed on the property to accommodate the existing
dwelling or building and the proposed increase or change in use.
(2)
Existing system capacity. The size of any existing system shall not be considered in determining the number of bedrooms currently allowed for the existing or new dwelling. If needed, the number of bedrooms existing can be verified by the Health Department in a site visit. The maximum number of bedrooms allowed shall be determined by the number of bedrooms in the existing house, if there is one, or the size of the lot as per 310 CMR 15.214, Nitrogen Loading, whichever is greater. Whether the property is served by municipal water or not, new construction or increase in flow shall be limited to 440 GPD per 40,000 square feet or ratio thereof as stated in § 301-6, Nitrogen Loading Limitations (3) or as otherwise provided in this regulation.
A.
Criteria for inspection.
(1)
The sewage disposal system shall be inspected by a licensed inspector
approved by the Massachusetts DEP whenever a property containing such
a system is transferred by sale, exchange, gift, or bequest to a new
ownership, unless inspected previously within two years under the
terms of this regulation and results approved by the Health Agent.
This regulation shall not be effective at the conveyance or devise
of the property to the surviving spouse. Any other transfer of ownership
will trigger the requirement that a septic inspection be performed.
(2)
A copy of the report of such inspection is to be furnished to the
Health Department by the prospective new owner prior to the closing.
The Health Department shall evaluate all such reports and determine
whether or not it requires an upgrade of said disposal system to meet
Title V and Board of Health regulations to the maximum feasible compliance.
(a)
Mandatory inspection requirements.
[1]
Septic inspection must include uncovering an inspection port
for the soil absorption system to evaluate distance to groundwater
or ponding.
[2]
The septic inspector is required to complete the soil absorption
system section of the state inspection form and include size of components
(tank, soil absorption system), amount of stone and consistency with
the existing plan.
[3]
All system components shall be required to install risers to
within six inches of final grade if not already on site including
the septic tank inlet and outlet, d-box and the soil absorption system
(fields are exempt).
(b)
Criteria for Health Department review.
(3)
A system that passes inspection shall be deemed to have met the standards
of Title V that were in place when the system was permitted considering
all of the following:
(a)
Vertical separation between the bottom of the leaching facility
and adjusted observed groundwater meets the minimum of four feet for
existing 1978 Code systems and five feet for 1995 Code systems;
(b)
Location of abutting wells and septic systems of abutting properties;
(c)
Distance to wetlands;
(d)
Compliance with Title V when installed;
(e)
Evidence of overflow or filling;
(f)
Pumping records;
(g)
Engineered plan on file.
B.
Failure of a septic system. In addition to general provisions of
310 CMR 15.303, a septic system will be considered failed when:
(1)
Any component does not function as intended according to criteria
set forth in these regulations for each type of system in 310 CMR
15.303, or leading to the system failing to protect the public health.
(2)
The system caused effluent to be discharged to the surface of the
ground, stream or other watercourse; or
(a)
A tank or cesspool is pumped to remove septic more than twice
in any twelve-month period, except that grease traps may be pumped
in accordance with Title V, 310 CMR 15.05(13). Laundromats, athletic
clubs, food service or other establishments, determined to be high
water users by the Board of Health, and that are pumped frequently,
shall be reviewed on a case-by-case basis.
(b)
As a result of an inspection as per 310 CMR 15.000, Subsection
15.301(1), Inspection at time of transfer, if inspection reveals that
the sewage disposal system consists of a cesspool, the system shall
be deemed substandard by the Board of Health and must be upgraded
to comply with 310 CMR 15.404, the State Environmental Code, Title
V, Minimum Requirements for the Subsurface Disposal of Sewage, as
applicable.
(c)
Properties served by cesspool systems will be considered to
have failed, and upgrade of that system will be required whenever
a septic system inspection is required. The septic system will be
required to be upgraded to Title V conformance whenever a building
permit is issued concerning increase to the shadow or footprint or
volume of the dwelling or any redesign.
(d)
If the minimum standard of a pre-existing Title V plan is not
met, the system will be considered to be failed.
A.
Buildable upland. In order to calculate the land area available for
recharge, the Board of Health shall only consider "buildable upland"
as defined by these regulations in order to calculate nitrogen loading
limitations for new construction or increase in flow.
B.
Ten thousand square feet per bedroom. No disposal system construction permit serving new construction or increase in flow shall be issued by the Board of Health or its agent unless the proposed system is designed to receive or shall receive 440 gallons per day or less per 40,000 square feet of lot area or ratio thereof except as otherwise provided as stated in § 301-4D(2) of this regulation.
C.
Applicability nitrogen reducing septic systems.
(1)
The following shall require the use of nitrogen reduction technology
such that the effluent does not exceed 19 ppm nitrate-nitrogen on
residential properties or 25 mg/l for commercial properties:
(a)
New commercial structures with a Title V design sewage flow
for existing use of under 10,000 gallons per day that exceed 440 gpd/40,000
square feet.
(b)
Existing commercial development with a total Title V 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
commercial treatment flow but still less than 10,000 gallons per day,
or existing commercial developments with flows in excess of 440 gpd/40,000
square feet where the existing system has failed.
(c)
New residential or commercial development, or multiunit housing
resulting in three or more dwelling units, including but not limited
to hotels, motels, cluster developments, planned developments, residential
subdivision, nursing homes, cottage colonies and hospitals.
(d)
Any lot determined to be an environmentally sensitive lot or
when the following variances are present:
[1]
Less than 100 feet separation distance exists between a drinking
water supply well and a soil absorption system.
[2]
Soil absorption system is located less than 100 feet from a
salt marsh or any marine surface water, or fresh surface water body.
[3]
Distance to adjusted high groundwater is less than five feet.
(2)
Innovative alternative septic systems that comply with the terms
and conditions in 310 CMR 15.271 and 310 CMR 15.281 through 310 CMR
15.288 may be permitted by the Board of Health to allow an increase
in the calculated allowable nutrient loading per acre on lots served
by private wells or municipal water supply.
(3)
Whenever an alternative or pressure dosed system is permitted by
the Board of Health, the licensed certified operator must submit operation,
maintenance and testing results via internet (when available) to Barnstable
County Department of Health and Environment Data Base or report directly
to Eastham Board of Health if data base is not available.
A.
Disposal of sewage.
B.
Permit required. No septic tank or other means of sewage disposal
shall be constructed or installed in this Town until a permit has
been obtained from the Board of Health.
C.
Transportation and disposal. All holders of permits granted by the
Board of Health, under MGL c. 111, § 31a, as amended for
the removal and transport of contents of cesspools, septic tanks or
leach pits shall provide themselves with a watertight tank truck or
vehicle to be used for this purpose. Final disposal of contents of
tank trucks or other vehicles shall be at an approved facility and
in such a manner as provided by the Board of Health.
Any person aggrieved by the final decision of the Board of Health
may seek relief therefrom within 30 days in any court of competent
jurisdiction, as provided by the laws of the commonwealth.
A.
Violation of regulations. Any person who shall violate any provision
of 310 CMR 11.00 and this regulation for which penalty is not otherwise
provided in any of the General Laws or in any other provision of this
regulation or Title 1 of the State Environmental Code shall, upon
conviction, be fined not less than $10 nor more than $500.
B.
Noncompliance with order. Any person who shall fail to comply with
any order issued pursuant to the provisions of 310 CMR 11.00 and this
regulation shall be fined not less than $10 nor more than $50 for
each offense. Each day's failure to comply with an order shall
constitute a separate offense.
A.
The Board of Health may vary the application of any provisions of 310 CMR 15.000 and Eastham Board of Health Regulations Ch. 301, Septic Systems, with respect to any particular case except those listed in 310 CMR 15.415. Variances shall be granted only when, in the opinion of the Board of Health:
(1)
The person requesting a variance has established that enforcement
of the provision of 310 CMR 15.000 and the Eastham Board of Health
Regulations from which a variance is sought would be manifestly unjust,
considering all the relevant facts and circumstances of the individual
case; and
(2)
The person requesting a variance has established that a level of
environmental protection that is at least equivalent to that provided
under 310 CMR 15.000 and the Eastham Board of Health Regulations can
be achieved without strict application of the provision of 310 CMR
15.000 and the Eastham Board of Health Regulations from which a variance
is sought.
B.
With regard to variances for new construction, enforcement of the
provision from which a variance is sought must be shown to deprive
the applicant of substantially all beneficial use of the subject property
in order to be manifestly unjust.
If any provision of this regulation is declared invalid by a
court of competent jurisdiction, such invalidity shall not affect
any remaining provisions of this regulation. Any part of these regulations
subsequently invalidated by a new state law or modification of an
existing state law shall automatically be brought into conformity
with the new or amended law and shall be deemed to be effective immediately.
