[11-18-1991]
The authority of the Falmouth Board of Health is set forth in
numerous chapters of Massachusetts General Laws. Title 5, the Minimum
Requirements for the Subsurface Disposal of Sanitary Sewage, is codified
in MGL C. 111, § 31, and MGL C. 21A, § 13. Other
regulations contained herein shall have specific statutory authority
cited within the text of the regulation.
The following provisions shall apply to all actions of the Falmouth
Board of Health:
2.1
Adoption of Regulations. [Reserved]
2.2
Public Notice and Hearing. [Reserved]
2.3
Recordkeeping.
|
Records of all public meetings and hearings and other actions
of the Board of Health shall be maintained in the Health Department
office in Town Hall.
|
2.4
Enforcement.
|
The provisions of Title 1 of the State Environmental Code (310
CMR 11.00) shall govern the enforcement of these regulations.
|
2.5
Savings.
|
Each section of these rules and regulations shall be construed
as separate. If any section, regulation, paragraph, sentence, clause,
phrase or word of these rules and regulations shall be declared invalid
for any reason, the remainder of these rules and regulations shall
remain in full force and effect.
|
2.6
Hearings. [Reserved]
2.7
Effective Date.
|
The effective date of each regulation is shown at the end of
each section in [brackets].
|
Sec. 1.
Findings. The Board of Health of the Town of Falmouth finds
that:
1.
The groundwater under lying this town is the sole source of
its existing and future water supply, including drinking water;
2.
The groundwater aquifer is integrally connected with and flows
into the surface waters, lake, streams and coastal estuaries which
constitute significant recreational and economic resources of the
town used for bathing and other water-related recreation, and shellfishing
and fishing;
3.
Accidental spills and discharges of petroleum products and other
toxic and hazardous materials have repeatedly threatened the quality
of such groundwater supplies and related water resources on Cape Cod
and in other Massachusetts towns, posing potential public health and
safety hazard and threatening economic losses to the affected communities;
4.
Unless preventive measures are adopted to prohibit discharge
of toxic and hazardous materials and to control their storage within
the town, further spills and discharges of such materials will predictably
occur, and with greater frequency and degree of hazard by reason of
increasing construction, commercial and industrial development, population,
and vehicular traffic in the Town of Falmouth and on Cape Cod.
Sec. 2.
Authority. The Board of Health of the Town of Falmouth adopts
the following regulations under the provisions of MGL C. 111, § 31.
Sec. 3.
Definitions.
1.
The term, "discharge" shall mean the accidental or intentional
spilling, leaking, pumping, pouring, emitting, emptying or dumping
of toxic or hazardous material upon or into any land or waters in
the Town of Falmouth.
|
The term, "discharge," as used and applied in this regulation,
does not include the following:
|
a.
Proper disposal of any material in a sanitary or industrial
landfill that has received and maintained all necessary legal approvals
for that purpose;
b.
Application of fertilizers and pesticides in accordance with
label recommendations and with regulations of the Massachusetts Pesticide
Control Board.
c.
Disposal of "sanitary sewage" to subsurface sewage disposal
systems as defined and permitted by Title 5 of the Massachusetts Environmental
Code.
2.
The term, "toxic or hazardous material," means any substance
or mixture of such physical, chemical or infectious characteristics
as to pose a significant actual or potential hazard to water supplies,
or other hazard to human health, if such substance or mixture were
discharged onto land or in the waters of this town. "Toxic or hazardous
materials" include, without limitation: organic chemicals, petroleum
products, heavy metals, radioactive or infectious wastes, acids and
alkalies, and include products such as pesticides, herbicides, solvents
and thinners. The following activities, without limitation, are presumed
to involve the use of toxic or hazardous materials, unless and except
to the extent that anyone engaging in such an activity can demonstrate
the contrary to the satisfaction of the Board of Health:
|
Airplane, boat and motor vehicle service, repair and salvage.
| |
|
Motor and machinery service and assembly.
| |
|
Chemical and bacteriological laboratory operation.
| |
|
Painting, wood preserving and furniture stripping.
| |
|
Cabinetmaking.
| |
|
Dry cleaning.
| |
|
Printing.
| |
|
Photographic processing.
| |
|
Fiberglass and plastic products fabrication.
| |
|
Metal plating, finishing and polishing.
| |
|
Electronic circuit assembly.
|
3.
The term, "party," means any person, group of persons representing
a company, organization, any corporate entity, etc., or an individual
representing one's self.
4.
The Board of Health may, consistent with this definition and
by authority of MGL C. 111, § 31, issue regulations further
identifying specific materials and activities involving the use of
toxic or hazardous materials. Such regulations shall automatically
become a part of this definition.
Sec. 4.
Prohibitions.
1.
The discharge of toxic or hazardous materials upon the ground
or into any surface water or groundwaters within the Town of Falmouth
is prohibited.
2.
Outdoor storage of toxic or hazardous material is prohibited
unless stored in accordance with all applicable requirements of Section
5 of this regulation.
Sec. 5.
Storage controls.
1.
Any toxic or hazardous materials shall be held on the premises
in product-tight, properly-labelled containers in accordance with
the Massachusetts Hazardous Management Act, MGL C. 21C; MGL C. 148;
current regulations issued by the Massachusetts Department of Environmental
Protection; and applicable parts of Chapter 527 CMR of Massachusetts
Fire Prevention Regulations, and 310 CMR.
2.
The Board of Health may require that containers of toxic or
hazardous materials be stored on an impervious, chemical-resistant
surface compatible with the material being stored,
|
and that provisions be made to contain the product in case of
accidental spillage. Containers shall be stored in such a way as to
facilitate visual inspection of each container for damage and leakage.
|
3.
The aforementioned laws and regulations shall also apply to
the proper removal and disposal of such toxic and hazardous materials.
4.
The proprietor of the premises where automotive motor oil, brake
or transmission fluid is sold shall post in a conspicuous place a
sign no less than seventy-five (75) inches square reading as follows:
|
THIS STORE HAS STORAGE FACILITIES TO ACCEPT RETURN OF UP TO
2 GALLONS OF MOTOR OIL DAILY WITHOUT CHARGE WHEN ACCOMPANIED BY PROOF
OF PURCHASE.
|
Sec. 6.
Report of spills and leaks. Every spill, leak or other loss
of toxic or hazardous materials believed to be in excess of five (5)
gallons, shall be reported to the Board of Health or its agent within
two (2) hours of detection.
Sec. 7.
Enforcement.
1.
The provisions of these regulations shall be enforced by the
Board of Health and/or the Hazardous Materials Coordinator acting
as its agent. Either agent may, according to law, enter upon any premises
at any reasonable time to inspect for compliance.
2.
Upon request of an agent of the Board of Health, the owner or
operator of any premises at which toxic or hazardous materials are
used or stored shall furnish all information required to monitor compliance
with this regulation, including a complete list of all chemicals,
pesticides, fuels and other toxic or hazardous materials used or stored
on the premises, a description of measures taken to protect storage
containers from vandalism, corrosion and spillage, and the means of
disposal of all toxic or hazardous waste produced on the site. A sample
of wastewater disposed to on-site septic systems, drywells, or sewage
treatment system may be required by the agent of the Board of Health.
3.
All records pertaining to storage, removal and disposal of toxic
or hazardous waste shall be retained for no less than three (3) years,
and shall be made available for review by the agent of the Board of
Health upon request.
Sec. 8.
Violation.
1.
Written notice of any violation of these regulations shall be
given by the agent of the Board of Health, specifying the nature of
the violation; any corrective measures that must be undertaken, including
containment and cleanup of discharged materials; any preventive measures
required for avoiding future violations; and a time for compliance.
Requirements specified in such a notice shall be reasonable in relation
to the public health hazard involved and the difficulty of compliance.
The cost of containment and cleanup shall be borne by the party responsible
for the discharge of hazardous waste, as defined in Section 3, Definitions.
2.
If the party at fault cannot be identified, then the cost of
containment and cleanup shall be borne by the operator of the premises.
Sec. 9.
Penalty. Penalty for failure to comply with the provisions of
these regulations shall be in accordance with Chapter XVIII ENFORCEMENT
of the bylaws of the Town of Falmouth.[1] Each day in which any violation exists shall be deemed
to be a separate offense.
Sec. 10.
Severability. Each provision of these regulations
shall be construed as separate, to the end that if any part of it
shall be held invalid for any reason, the remainder shall continue
in full force and effect.
[Adopted 12-20-2010[1]]
Therefore, under the authority of MGL c. 111, § 31B,
the Board of Health of the Town of Falmouth hereby adopts the following
regulations:
1.
All commercial trash haulers operating in the Town of Falmouth must
be licensed by the Board of Health and must comply with all local
Board of Health regulations and all the rules and regulations and
subsequent amendments of the UCRTS Board of Managers.
2.
a)
All haulers licensed by the Board of Health in the Town of Falmouth
must transport refuse loads collected in the Town of Falmouth to the
UCRTS or, if the UCRTS is not in operation, to another facility approved
by the Board of Health. The UCRTS shall be deemed to be in operation
on any day it opens to receive refuse loads according to its regularly
scheduled operating hours.
b)
In the alternative, haulers may obtain prior written approval from
the Board of Health to transport refuse loads collected in the Town
of Falmouth to other facilities when the UCRTS is in operation upon
the following conditions:
i)
The hauler shall file a statement with the Board of Health identifying
all other facilities to which it intends to transport refuse loads
collected within the Town of Falmouth;
ii)
The hauler shall file with the Board of Health a sworn report
under the pains and penalties of perjury, according to a schedule
to be determined by the Board from time to time, that identifies all
refuse loads that were collected in the Town of Falmouth and transported
to another facility from the date of the previous report, the weight
of each refuse load, the identity of the other facility and such other
information as the Board may direct from time to time;
iii)
The hauler shall pay to the UCRTS a fee, corresponding to the
rail transportation fee at the current rate per ton, for refuse collected
within the Town of Falmouth that is transported to other facilities;
iv)
The Health Agent, upon conferring with the UCRTS Board of Managers,
may prepare a suitable form for the haulers to use to file the sworn
report referred to above and the Health Agent is further authorized
from time to time to audit and verify the truth and accuracy of any
sworn report filed hereunder; and
v)
Any sworn report filed hereunder which is reasonably believed
to be false or inaccurate may be referred to the appropriate authority
for investigation and/or prosecution under MGL c. 12, § 5A
et seq., the False Claims Act.
3.
This regulation shall be suspended for any period of time the UCRTS
is not in operation and will terminate on December 31, 2014.
4.
Any violation of any of these regulations
may, after a hearing before the Board of Heath, result in one or more
of the following penalties:
5.
Severability: In the event any section of these regulations is judged
invalid in a court of law, such sections shall be severed from the
remaining sections, which shall remain in full force and effect.
[1]
Editor's Note: This regulation also superseded former FHR
4.0, Refuse Regulation, adopted 6-3-1991.
[5-10-1988]
The following amendment to the regulation is promulgated to
protect the ground- and surface waters from contamination with liquid
toxic or hazardous materials:
Sec. 1.
Installation of underground storage tanks (UST).
[Amended 8-28-1989]
1.1
The United States Environmental Protection Agency has designated
the Town of Falmouth as overlying a sole source aquifer. Following
the effective date of this regulation, the installation of all underground
fuel, gasoline or other chemical storage tanks shall conform to the
following criteria:
1.2
Secondary containment and an approved in-tank or interstitial
space monitoring system shall be required for new or replacement tanks.
1.3
In Water Resource Protection Districts as shown on the Falmouth
Zoning Map and as defined in the Town Zoning Bylaws:[1]
a.
All new underground storage tanks must be constructed of double-walled
fiberglass reinforced plastic (FRP) and be equipped with a continuous
interstitial monitoring system with appropriate alarms.
b.
All piping from the UST to the interior of the premises must
have a secondary containment system with an interstitial monitoring
system and appropriate alarms.
c.
All plans for UST in the Water Resource Protection District
must be submitted to the Board of Health for approval prior to tank
installation.
Sec. 2.
Tank registration. The following regulations shall apply to
A) all underground tanks containing toxic or hazardous materials as
defined above which are not currently regulated under 527 CMR 9.24
- Tanks and Containers, to B) all tanks containing fuel oil, whose
contents are used exclusively for consumption on the premises, and
to C) farm and residential tanks of one-thousand-one-hundred-gallon
capacity, or less, used for storing motor fuel for noncommercial purposes.
2.1
Owners shall file with the Board of Health, on or before July
1, 1988, the size, type, age, and location of each tank, and the type
of fuel or chemical stored in them. Evidence of date of purchase and
installation, including Fire Department permit, if any, shall be included
along with a sketch map showing the location of such tanks on the
property. Upon registering the tank with the Board of Health, the
tank owner will receive a permanent metal or plastic tag, embossed
with a registration number unique to that tank. This registration
tag must be affixed to the fill pipe in such a location as to be visible
to any distributor when filling the tank and to any inspector authorized
by the town. Registration fee is five dollars ($5.).
2.2
Effective September 15, 1988, every petroleum and other chemical
distributor, when filling an underground storage tank, shall note
on the invoice or bill for the product delivered, the registration
number appearing on the tag affixed to the tank which was filled.
Every petroleum and other chemical distributor shall notify the Board
of Health of the existence and location of any unregistered or untagged
tank which they are requested to fill. Such notification must be completed
within two (2) working days of the time the distributor discovers
that the tank registration tag is not affixed to the fill pipe.
2.3
Prior to the sale of a property containing an underground storage
tank, the Fire Department must receive notification of a change of
ownership for the registration of the underground storage tank.
Sec. 3.
Testing.
3.1
The tank owner shall have each tank and its piping tested for
tightness fifteen (15) years after installation and annually after
twenty (20) years. A tank shall be tested by any final or precision
test, not involving air pressure, that can accurately detect a leak
of zero and five-hundredths (0.05) gallon per hour, after adjustment
for relevant variables, such as temperature change and tank end deflection,
or by any other testing system approved by the Board of Health, as
providing equivalent safety and effectiveness. Piping shall be tested
hydrostatically to one hundred fifty percent (150%) of the maximum
anticipated pressure of the system. Certification of the testing shall
be submitted to the Board of Health by the owner, at the owner's expense.
Those tanks subject to the testing requirements of this regulation
shall submit the certification of testing to the Board of Health by
September 15, 1988. Tanks which are currently tested under the provisions
of 527 CMR 9.18 are exempt from this section.
Sec. 4.
Report of Leaks or Spills.
4.1
Any person who is aware of a spill or loss of product shall
report such spill or loss immediately to the head of the Fire Department.
4.2
Service companies shall report to tank owners and the Board
of Health any unaccounted for increase in petroleum or chemical consumption
which may indicate a leak.
Sec. 5.
Tank Removal.
5.1
All fuel, gasoline or other chemical tanks not regulated under
527 CMR 9.00 [farm or residential tanks of one thousand one hundred
(1,100) gallons or less and underground tanks storing fuel for consumptive
use at the property] in service on the effective date of this regulation,
shall be removed thirty (30) years after the date of installation.
If the date of installation is unknown, it shall be assumed to be
January 1, 1973. All underground storage tanks currently subject to
the removal regulation [thirty (30) years or older] must be removed
by December 1, 1988.
5.2
Prior to the removal of an underground storage tank governed
by this regulation, the owner shall first obtain a permit from the
head of the Fire Department, pursuant to MGL C. 148.
5.3
Any person granted a permit by the Marshall or the head of a
local Fire Department to remove a tank under the provisions of MGL
C. 148, or 527 CMR 9.00, shall within seventy-two (72) hours provide
the permit granting authority with a receipt for delivery of said
tank to the site designated on the permit.
5.4
Before any person is granted a permit by the Marshall or the
head of a local Fire Department to remove a tank under the provisions
of MGL C. 148, or 527 CMR 9.00, and said tank is not being transported
to an approved tank yard, the person requesting the permit shall provide
the permit-granting authority with written approval from the owner/manager
of the disposal site. (Reference: 502 CMR 3.00 for tank removal and
disposal procedure.)
Sec. 6.
Costs.
6.1
In every case, the owner shall assume the responsibility for
costs incurred necessary to comply with this regulation.
Sec. 7.
Variances.
7.1
Variances from this regulation may be granted by the Board of
Health after a hearing at which the applicant establishes the following:
(1) the enforcement thereof would do manifest injustice; and (2) installation
or use of an underground storage tank will not adversely affect public
or private water resources. In granting a variance, the Board will
take into consideration the direction of the ground water flow, soil
conditions, depth to ground water, size, shape and slope of the lot,
and existing and known future water supplies.
Sec. 8.
Enforcement.
8.1
Any owner or operator who violates any provisions of this regulation
shall be subject to the penalties provided under MGL C. 111, § 31,
as amended. Each day during which such violation continues shall constitute
a separate violation. Upon request of the head of the Fire Department
or the Board of Health, the licensing authority and Town Counsel shall
take any legal action as may be necessary to enforce the provisions
of this regulation.
[Effective 2-23-2009;
amended 4-8-2016; 3-15-2021]
A.
Statement of purpose:
Whereas there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat[1];
Whereas the U.S. Department of Health and Human Services has
concluded that nicotine is as addictive as cocaine or heroin[2] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development,[3] and that it is addiction to nicotine that keeps youth
smoking past adolescence[4];
Whereas a Federal District Court found that Phillip Morris,
RJ Reynolds and other leading cigarette manufacturers "spent billions
of dollars every year on their marketing activities in order to encourage
young people to try and then continue purchasing their cigarette products
in order to provide the replacement smokers they need to survive"
and that these companies were likely to continue targeting underage
smokers[5];
Whereas more than 80 percent of all adult smokers begin smoking
before the age of 18, more than 90 percent do so before leaving their
teens, and more than 3.5 million middle and high school students smoke[6];
Whereas cigars and cigarillos, can be sold in a single "dose";
enjoy a relatively low tax as compared to cigarettes; are available
in fruit, candy and alcohol flavors; and are popular among youth[7];
Whereas research shows that increased cigar prices significantly
decreased the probability of male adolescent cigar use and a 10% increase
in cigar prices would reduce use by 3.4%[8];
Whereas 59% of high school smokers in Massachusetts have tried
flavored cigarettes or flavored cigars and 25.6% of them are current
flavored tobacco product users; 95.1% of 12 - 17 year old's who
smoked cigars reported smoking cigar brands that were flavored[9];
Whereas the Surgeon General found that exposure to tobacco marketing
in stores and price discounting increase youth smoking[10];
Whereas the U.S. Food and Drug Administration and the U.S. Surgeon
General have stated that flavored tobacco products are considered
to be "starter" products that help establish smoking habits that can
lead to long-term addiction[11];
Whereas the U.S. Surgeon General recognized in his 2014 report
that a complementary strategy to assist in eradicating tobacco-related
death and disease is for local governments to ban categories of products
from retail sale[12];
Whereas the U.S. Food and Drug Administration and the Tobacco
Products Scientific Advisory Committee concluded that menthol flavored
tobacco products increased nicotine dependence, decreased success
in smoking cessation[13];
Whereas menthol makes it easier for youth to initiate tobacco
use[14];
Whereas use of e-cigarettes among students in Massachusetts
is 20.1%, representing a 78% increase for high schoolers and a 48%
increase for middle schoolers from 2017 to 2018[15];
Whereas the Massachusetts Department of Environmental Protection
has classified liquid nicotine in any amount as an "acutely hazardous
waste"[16];
Whereas according to the CDC's youth risk behavior surveillance
system, the percentage of high school students in Massachusetts who
reported the use of cigars within the past 30 days was 10.8% in 2013[17];
Whereas data from the National Youth Tobacco Survey indicate
that more than two-fifths of U.S. middle and high school smokers report
using flavored little cigars or flavored cigarettes[18];
Whereas research indicates that point-of-purchase exposure to
tobacco products influences what products youths buy and use[19], and that children who shop two or more times a week at
stores with tobacco are 64% more likely to start smoking than their
peers[20].
Whereas educational institutions sell tobacco products to a
younger population, who is particularly at risk for becoming smokers
and such sale of tobacco products is incompatible with the mission
of educational institutions that educate a younger population about
social, environmental and health risks and harms; and
Whereas the Massachusetts Supreme Judicial Court has held that
"[t]he right to engage in business must yield to the paramount right
of government to protect the public health by any rational means"[21].
Now, therefore it is the intention of the Falmouth Board of
Health to regulate the sale of tobacco products.
[1]
Center for Disease Control and Prevention, (CDC) (2012), Health
Effects of Cigarette Smoking Fact Sheet. Retrieved from: http://www.cdc.gov/tobacco/data_statistice/fact_sheets/health_effects/effects_cig_smoking/index.htm.
[2]
CDC (2010), How Tobacco Smoke Causes Disease: The Biology
and Behavioral Basis for Smoking-Attributable Disease. Retrieved from:
http://www.cdc.gov/tobacco/data_statistics/sgr/2010/.
[3]
U.S. Department of Health and Human Services. 2014. The Health
Consequences of Smoking - 50 Years of Progress: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease Prevention
and Health Promotion, Office on Smoking and Health, p. 122. Retrieved
from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
[4]
Id. at Executive Summary p. 13. Retrieved from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/execsummary.pdf.
[5]
United States v. Phillip Morris, Inc., RJ Reynolds Tobacco
Co., et al., 449 F.Supp.2d 1 (D.D.C. 2006) at Par. 3301 and Pp. 1605-07.
[6]
SAMHSA, Calculated based on data in 2011 National Survey on
Drug Use and Health and U.S. Department of Health and Human services
(HHA).
[7]
CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR
2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.
[8]
Ringel, J., Wasserman, J., & Andreyeva, T. (2005) Effects
of Public Policy on Adolescents' Cigar Use: Evidence from the
National Youth Tobacco Survey. American Journal of Public Health,
95(6), 995-998, doi: 10.2105/AJPH.2003.030411 and cited in Cigar,
Cigarillo and Little Cigar Use among Canadian Youth: Are We Underestimating
the Magnitude of this Problem?, J. Prim. P. 2011, Aug: 32(3-4):161-70.
Retrieved from: www.nebi.nim.gov/pubmed/21809109.
[9]
Massachusetts Department of Public Health, 2015 Massachusetts
Youth Health Survey (MYHS); Delneve CD et al., Tobacco Control, March
2014: Preference for flavored cigar brands among youth, young adults
and adults in the USA.
[10]
U.S. Department of Health and Human Services. 2012. Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease Prevention
and Health Promotion, Office on Smoking and Health, p. 508-530, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[11]
Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco
Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf;
U.S. Department of Health and Human Services. 2012. Preventing Tobacco
Use Among Youth and Young Adults: A Report of the Surgeon General.
Atlanta: U.S. National Center for Chronic Disease Prevention and Health
Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[12]
See fn. 3 at p. 85.
[13]
www.fda.gov/downloads/ucm361598.pdf, Https://tobacco,ucsf.edu/tpsac-gave-fda-what-it-needs-to-ban-menthol.
[14]
www.tobaccofreekids.org/assets/factsheet/0390.pdf.
[15]
MA YRBS 2017.
[16]
310 CMR 30.136.
[17]
See fn. 7.
[18]
King BA, Tynan MA, Dube SR, et al. 2013. "Flavored-Little-Cigar
and Flavored-Cigarette Use Among U.S. Middle and High School Students."
Journal of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-1/abstract.
[19]
U.S. Dept. of Health and Human Services, Office of the Surgeon
General. Preventing Tobacco Use among Youth and Young Adults: A Report
of the Surgeon General, 2012. https://www.ncbi.nlm.nih.gov/books/NBK99237/;
[20]
Henriksen, L., Schleicher, N.C., Feighery, E.C., and Fortmann,
S.P. 2010. Pediatrics: The Official Journal of the American Academy
of Pediatrics. DOI:https://doi.org/10.1542/peds.2009-3021
[21]
Druzik et al v. Board of Health of Haverhill, 324 Mass. 129
(1949).
B.
Authority: This regulation is promulgated pursuant to the authority
granted to the Falmouth Board of Health by MGL c. 111, § 31
which states "Boards of health may make reasonable health regulations."
In addition to the Massachusetts General Laws, the Falmouth Board
of Health has promulgated additional regulations included in this
document, which will replace the current Town of Falmouth Sale of
Tobacco Regulation, as of the effective date the regulation passes.
C.
BLUNT WRAP
BUSINESS AGENT
CHARACTERIZING FLAVOR
CIGAR
COMPONENT PART
CONSTITUENT
COUPON
DISTINGUISHABLE
EDUCATIONAL INSTITUTION
ELECTRONIC NICOTINE DELIVERY SYSTEM
EMPLOYEE
EMPLOYER
FLAVORED TOBACCO PRODUCT
HEALTH CARE INSTITUTION
LIQUID NICOTINE CONTAINER
LISTED OR NON-DISCOUNTED PRICE
LOOSE TOBACCO
NON-RESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE
PERMIT HOLDER
PERSON
RETAIL TOBACCO STORE
SCHOOLS
SELF-SERVICE DISPLAY
SMOKE CONSTITUENT
SMOKING BAR
TOBACCO PRODUCT
TOBACCO PRODUCT FLAVOR ENHANCER
TOBACCO PRODUCT SALES PERMIT
VENDING MACHINE
Definitions: For the purpose of this regulation, the following words
shall have the following meanings:
Any tobacco product manufactured or packaged as a complete
or partial tobacco leaf, wrap or as a hollow tube made wholly or in
part from tobacco that is designed or intended to be filled by the
consumer with loose tobacco or other fillers regardless of any content.
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, imparted or detectable either prior to or during
consumption of a tobacco product or component part thereof, including,
but not limited to, tastes or aromas relating to any fruit, chocolate,
vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol,
mint, wintergreen, herb or spice; provided, however, that no tobacco
product shall be determined to have a characterizing flavor solely
because of the provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
Any roll of tobacco that is wrapped in leaf tobacco or in
any substance containing tobacco, with or without a tip or mouthpiece,
that is in a readily usable state immediately when removed from its
packaging without any modification, preparation or assembly required
as in a kit or roll-your-own package, and is not otherwise defined
as a cigarette under MGL c. 64c, § 1, Paragraph 1. Tobacco
leaf in such kits or roll-your-own packages shall be considered "blunt
wraps" for the purpose of this regulation.
Any element of a tobacco product, including, but not limited
to, the tobacco, filter and paper, but not including any constituent.
Any ingredient, substance, chemical or compound, other than
tobacco, water or reconstituted tobacco sheet, that is added by the
manufacturer to a tobacco product during the processing, manufacturing
or packaging of the tobacco product. Such term shall include a smoke
constituent.
Any card, paper, note, form, statement, ticket or other communication
distributed for commercial or promotional purposes to be later surrendered
by the bearer so as to receive an article, service or accommodation
without charge or at a discount price.
Perceivable by either the sense of smell or taste.
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
An electronic device, whether for one-time use or reusable,
that can be used to deliver nicotine or another substance to a person
inhaling from the device including, but not limited to, electronic
cigarettes (e.g., "e-cigarettes"), electronic cigars, electronic cigarillos,
electronic pipes, vaping pens, hookah pens and other similar devices
that rely on vaporization or aerosolization; provided, however, that
"electronic nicotine delivery system" shall also include any noncombustible
liquid or gel that is manufactured into a finished product for use
in such electronic device; provided further, that "electronic nicotine
delivery system" shall also include any component, part or accessory
of a device used during the operation of the device even if the part
or accessory was sold separately; provided further, that "electronic
nicotine delivery system" shall not include a product that has been
approved by the United States Food and Drug Administration for the
sale of or use as a tobacco cessation product or for other medical
purposes and is marketed and sold or prescribed exclusively for that
approved purpose.
Any individual who performs services for an employer.
Any individual, partnership, association, corporation, trust,
private club, fraternal organization or other organized group of individuals
that uses the services of one (1) or more employees.
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or indicia made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health care services
and employs health care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under MGL c. 112
or a retail establishment that provides pharmaceutical goods and services
and is subject to the provisions of 247 CMR 6.00. Health care institutions
include, but are not limited to, hospitals, clinics, health centers,
pharmacies, drug stores, doctor offices, optician/optometrist offices
and dentist offices.
A bottle or other vessel which contains nicotine in liquid
or gel form, whether or not combined with another substance or substances,
for use in a tobacco product, as defined herein. The term does not
include a container containing nicotine in a cartridge that is sold,
marketed, or intended for use in a tobacco product, as defined herein,
if the cartridge is prefilled and sealed by the manufacturer and not
intended to be opened by the consumer or retailer.
The higher of the price listed for a tobacco product on its
package or the price listed on any related shelving, posting, advertising
or display at the place where the tobacco product is sold or offered
for sale plus all applicable taxes if such taxes are not included
in the stated price, and before the application of any discounts or
coupons.
Any cut, chopped or granular tobacco sold in packages, but
does not include tobacco sticks, cigarettes, cigars, leaf tobacco,
rolls of tobacco or any other pre-rolled tobacco products.
A mechanical device made available for use (including to
an individual who produces cigars, cigarettes, smokeless tobacco,
pipe tobacco, or roll-your-own tobacco solely for the individual's
own personal consumption or use) that is capable of making cigarettes,
cigars or other tobacco products. RYO machines located in private
homes used for solely personal consumption are not Non-Residential
RYO machines.
Any person engaged in the sale or distribution of tobacco
products who applies for and receives a tobacco product sales permit
or any person who is required to apply for a tobacco product sales
permit pursuant to these regulations.
Any individual, firm, partnership, association, corporation,
company or organization of any kind, including but not limited to,
an owner, operator, manager, proprietor or person in charge of any
establishment, business or retail store.
An establishment that does not share space with another business,
that has a separate entrance, that does not sell food or alcohol,
that does not have a restaurant license or lottery license, whose
only purpose is to sell or offer for retail sale tobacco products
and/or tobacco product paraphernalia, in which the entry of persons
under the age of 21 is prohibited at all times, and which maintains
a valid tobacco sales permit from the Falmouth Board of Health and
applicable state licenses. Entrance to the establishment must be secure
so that access to the establishment is restricted to employees and
to those twenty-one (21) years or older. The establishment shall not
allow anyone under the age of 21 to work at the establishment.
Public or private elementary or secondary schools.
Any display from which customers may select a tobacco product,
as defined herein, without assistance from an employee of store personnel.
Any chemical or chemical compound in tobacco smoke that either
transfers from any component of the tobacco product to the smoke or
that is formed by the combustion or heating of tobacco, additives
or other component of the tobacco product.
An establishment that: (i) exclusively occupies an enclosed
indoor space and is primarily engaged in the retail sale of tobacco
products for consumption by customers on the premises; (ii) derives
revenue from the sale of food, alcohol or other beverages that is
incidental to the sale of a tobacco product and prohibits entry to
a person under twenty-one (21) years of age; and (iii) prohibits a
food or beverage not sold directly by the establishment from being
consumed on the premises. "Smoking bar" shall include, but not be
limited to, those establishments that are commonly known as "cigar
bars" and "hookah bars."
A product containing or made or derived from tobacco or nicotine
that is intended for human consumption, whether smoked, chewed, absorbed,
dissolved, inhaled, snorted, sniffed or ingested by any other means
including, but not limited to, cigarettes, cigars, little cigars,
chewing tobacco, pipe tobacco, loose tobacco, snuff, electronic cigarettes,
electronic cigars, electronic pipes, electronic nicotine delivery
systems or any other similar products that rely on vaporization or
aerosolization regardless of nicotine content in the product; provided,
however, that "tobacco product" shall also include any component,
part or accessory of a tobacco product; and provided further, that
"tobacco product" shall not include a product that has been approved
by the United States Food and Drug Administration for the sale of
or use as a tobacco cessation product or for other medical purposes
and is marketed and sold or prescribed exclusively for the approved
purpose.
Any product designed, manufactured, produced, marketed or
sold to produce a characterizing flavor when added to any tobacco
product.
Written authority granted to a person by the Falmouth Board
of Health to engage in the sale of tobacco products within the Town
of Falmouth as allowed by Massachusetts Department of Revenue.
Any automated or mechanical self-service device, which upon
insertion of money, tokens or any other form of payment, dispenses
or makes cigarettes or any other tobacco products, as defined herein.
D.
Tobacco sales to persons under twenty-one (21) years old:
(1)
Age requirement:
(a)
No person shall sell tobacco or nicotine delivery products or
permit tobacco or nicotine delivery products to be sold to a person
less than twenty-one (21) years of age.
(2)
Required signage:
(a)
All retail establishments and retail tobacco stores, shall conspicuously
post signage inside the establishment, in the form developed and made
available by the Massachusetts Department of Public Health. Such signage
shall include: (i) a copy of MGL c. 270, §§ 6 and 6A;
(ii) referral information for smoking cessation resources; (iii) a
statement that sale of tobacco products, including e-cigarettes, to
someone younger than twenty-one (21) years of age is prohibited; (iv)
health warnings associated with using electronic nicotine delivery
systems; (v) notice to consumers that the sale of flavored electronic
nicotine systems are prohibited at all times; and, (vi) notice to
consumers that the use of e-cigarettes at indoor establishments is
prohibited by local law. Such signage shall be posted conspicuously
in the retail establishment or other place in such a manner so that
it may be readily seen by a person standing at or approaching the
cash register. The notice shall directly face the purchaser and shall
not be obstructed from view or placed at a height of less than four
feet or greater than nine feet from the floor.
(b)
All retail tobacco stores shall post signage, in the form developed
and made available by the Massachusetts Department of Public Health,
on the exterior of the door providing entrance to the retail tobacco
store and such sign shall not be obstructed from view or placed at
a height of less than four feet or greater than nine from the bottom
of the door. Such signage shall state that "No person younger than
twenty-one (21) years old is permitted on the premises at any time."
(3)
Identification: Each person selling or distributing tobacco
products, or admitting entrance into a retail tobacco store, shall
first verify the age of the purchaser by means of a valid government-issued
photographic identification containing the bearer's date of birth
that the purchaser is twenty-one (21) or older.
(4)
All retail sales of tobacco products, as defined herein, must
be face-to-face between the seller and the buyer and occur at the
permitted location.
E.
Tobacco product sales permit:
(1)
No person shall sell or otherwise distribute tobacco products,
as defined herein, within the town of Falmouth without first obtaining
a tobacco product sales permit issued annually by the Falmouth Board
of Health. Only owners of establishments with a permanent, non-mobile
location in Falmouth are eligible to apply for a tobacco product sales
permit and sell tobacco products, as defined herein, at the specified
location in Falmouth.
(2)
As part of the tobacco product sales permit application process,
the applicant will be provided with the Falmouth regulation. Each
applicant is required to sign a statement declaring that the applicant
has read said regulation and that the applicant is responsible for
instructing any and all employees who will be responsible for tobacco
product sales regarding federal, state and local laws about the sale
of tobacco and this regulation.
(3)
Each applicant who sells tobacco products is required to provide
proof of current tobacco retailer licenses issued by the Massachusetts
Department of Revenue, when required by state law, before a tobacco
product sales permit can be issued by the Town of Falmouth. Applicant
may be asked to provide evidence that a legitimate business transfer
or business purchase has taken place.
(4)
A separate tobacco product sales permit, displayed conspicuously,
is required for each retail establishment selling tobacco products,
as defined herein. The fee shall be determined by the Falmouth Board
of Health annually.
(5)
A tobacco product sales permit is non-transferable. A new owner
of an establishment that sells tobacco products, as defined herein,
must apply for a new permit. No new permit will be issued unless and
until all outstanding penalties incurred by the previous permit holder
are satisfied in full.
(6)
Renewal of a tobacco product sales permit shall be conditioned
on an applicant's consent to unannounced, periodic inspections
of his/her retail establishment to ensure compliance with this regulation.
(7)
A tobacco product sales permit will not be renewed if the permit
holder has failed to pay all fines issued and the time period to appeal
the fines has expired and/or the permit holder has not satisfied any
outstanding permit suspensions.
(8)
A tobacco product sales permit will not be renewed if the permit holder has sold a tobacco product to a person under the age of twenty-one (21) three (3) times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with Subsection S(4) of the Violations section.
(9)
The number of tobacco product sales permits in the Town of Falmouth
as of the date of this regulation is capped at thirty-five (35). It
is the intent of this regulation to gradually reduce the number of
tobacco product sales permits in the Town of Falmouth. The number
of permits on the cap will be reduced by two mechanisms:
(10)
An application for transfer of a tobacco product sales permit
to a new owner for the sale of tobacco products from an existing location
with a valid tobacco product sales permit will not be denied solely
onthe basis of the quota set forth in this section, provided, however,
that such an application will be treated as a new application in all
other respects. If the permit transfer application is not received
within said sixty (60) days of the transfer of the business, the permit
will be deemed surrendered.
F.
Prohibition of smoking bars: Smoking bars are prohibited in the town
of Falmouth. Smoking is not permitted in retail tobacco stores.
G.
Cigar sales regulated:
(1)
No person shall sell or distribute or cause to be sold or distributed
a single cigar unless such cigar is priced above or equal to one half
of the lowest price of a pack of cigarettes as regulated by the MA
Department of Revenue Annual Minimum Retail Price List.
(2)
No person shall sell or distribute or cause to be sold or distributed
any original factory-wrapped package of two or more cigars, unless
such package is priced above or equal to the lowest price of a pack
of cigarettes regulated by the MA Department of Revenue Annual Minimum
Retail Price List.
(3)
This section shall not apply to a person or entity engaged in
the business of selling or distributing cigars for commercial purposes
to another person or entity engaged in the business of selling or
distributing cigars for commercial purposes with the intent to sell
or distribute outside the boundaries of Falmouth.
H.
Sale of flavored tobacco products prohibited: No person shall sell
or distribute or cause to be sold or distributed any flavored tobacco
product, as defined herein, flavored electronic nicotine delivery
system, as defined herein, or any flavored tobacco product enhancer,
as defined herein. Per 105 CMR 665.010(E), retailers must obtain from
a manufacturer documentation certifying those products, sold by the
retailer, that do not meet the definition of a flavored tobacco product
or tobacco product flavor enhancer.
I.
(Reserved)
J.
Prohibition of the sale of blunt wraps: No person or entity shall
sell or distribute blunt wraps in Falmouth.
K.
Free distribution and coupon redemption: No person shall:
(1)
Distribute or cause to be distributed, any free samples of tobacco
products, as defined herein;
(2)
Accept or redeem, offer to accept or redeem, or cause or hire
any person to accept or redeem or offer to accept or redeem any coupon
that provides any tobacco product, as defined herein, without charge
or for less than the listed or non-discounted price; or
(3)
Sell a tobacco product, as defined herein, to consumers through
any multi-pack discounts (e.g., "buy-two-get-one-free") or otherwise
provide or distribute to consumers any tobacco product, as defined
herein, without charge or for less than the listed or non-discounted
price in exchange for the purchase of any other tobacco product.
L.
Out-of-package sales:
(1)
The sale or distribution of tobacco products, as defined herein,
in any form other than an original factory-wrapped package is prohibited,
including the repackaging or dispensing of any tobacco product, as
defined herein, for retail sale. No person may sell or cause to be
sold or distribute or cause to be distributed any cigarette package
that contains fewer than twenty (20) cigarettes, including single
cigarettes.
(2)
Permit holders who sell liquid nicotine containers must comply
with the provisions of 310 CMR 30.000, and must provide the Falmouth
Board of Health with a written plan for disposal of said product,
including disposal plans for any breakage, spillage or expiration
of the product.
(3)
All permit holders must comply with 940 CMR 21.05 which reads:
"It shall be an unfair or deceptive act or practice for any person
to sell or distribute nicotine in a liquid or gel substance in Massachusetts
after March 15,2016, unless the liquid or gel product is contained
in a child-resistant package that, at a minimum, meets the standard
for special packaging as set forth in 15 U.S.C. §§ 1471
through 1476 and 16 CFR § 1700 et. seq."
(4)
No permit holder shall refill a cartridge that is prefilled
and sealed by the manufacturer and not intended to be opened by the
consumer or retailer.
M.
Self-service displays: All self-service displays of tobacco products,
as defined herein, are prohibited. All humidors including, but not
limited to, walk-in humidors must be locked.
N.
Vending machines: All vending machines containing tobacco products,
as defined herein, are prohibited.
O.
Non-residential roll-your-own machines: All non-residential roll-your-own
machines are prohibited.
P.
Prohibition of the sale of tobacco products by health care institutions:
No health care institution located in Falmouth shall sell or cause
to be sold tobacco products, as defined herein. No retail establishment
that operates or has a health care institution within it, such as
a pharmacy, optician/optometrist or drug store, shall sell or cause
to be sold tobacco products, as defined herein.
Q.
Prohibition of the sale of tobacco products by educational institutions:
No educational institution located in Falmouth shall sell or cause
to be sold tobacco products, as defined herein. This includes all
educational institutions as well as any retail establishments that
operate on the property of an educational institution.
R.
Incorporation of state laws and state regulations:
(1)
The sale or distribution of tobacco products, as defined herein,
must comply with those provisions found at MGL c. 270, §§ 6,
6A, 7, 28, 29 and MGL c. 112, § 61A.
(2)
The sale or distribution of tobacco products, as defined herein,
must comply with those provisions found at 940 CMR 21.00 ("Sale and
Distribution of Cigarettes, Smokeless Tobacco Products, and Electronic
Smoking Devices in Massachusetts") and 940 CMR 22.00 ("Sale and Distribution
of Cigars in Massachusetts").
S.
Violations:
(1)
It shall be the responsibility of the establishment, permit
holder and/or his or her business agent to ensure compliance with
all sections of this regulation. For violations of this regulation
the following penalties apply:
(a)
In the case of a first violation, a fine of one thousand dollars
($1,000.00).
(b)
In the case of a second violation within thirty-six (36) months
of the date of the current violation, a fine of two thousand dollars
($2,000.00) shall be issued and the tobacco product sales permit shall
be suspended for seven (7) consecutive business days.
(c)
In the case of three (3) or more violations within a thirty-six-month
period, a fine of five thousand dollars ($5,000.00) shall be issued
and the tobacco product sales permit shall be suspended for thirty
(30) consecutive business days.
(2)
In the case of four violations or repeated, egregious violations
of any section of this regulation, as determined by the Board of Health
within a 36-month, the Board of Health shall hold a hearing in accordance
with this regulation and, after such hearing may permanently revoke
a tobacco sales permit.
(3)
Failure to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco product sales permit
for thirty (30) consecutive business days.
(4)
In addition to the monetary fines set above, any permit holder
who engages in the sale or distribution of tobacco products while
his or her permit is suspended shall be subject to the suspension
of all Board of Health issued permits for thirty (30) consecutive
business days or permanent revocation of their tobacco product sales
permit. Multiple tobacco product sales permit suspensions shall not
be served concurrently.
(5)
The Falmouth Board of Health shall provide notice of the intent
to suspend or revoke a tobacco product sales permit, which notice
shall contain the reasons therefor and establish a time and date for
a hearing which date shall be no earlier than seven (7) days after
the date of said notice. The permit holder or its business agent shall
have an opportunity to be heard at such hearing and shall be notified
of the Board of Health's decision and the reasons therefor in
writing. After a hearing, the Falmouth Board of Health shall suspend
or revoke the tobacco product sales permit if the Board of Health
finds that a violation of this regulation occurred. All tobacco products,
as defined herein, shall be removed from the retail establishment
upon suspension or revocation of the tobacco product sales permit.
Failure to remove all tobacco products, as defined herein, shall constitute
a separate violation of this regulation.
T.
Non-criminal disposition: Whoever violates any provision of this
regulation may be penalized by the non-criminal method of disposition
as provided in MGL c. 40, § 21D.
U.
Separate violations: Each day any violation exists shall be deemed
to be a separate offense.
V.
Enforcement: Enforcement of this regulation shall be by the Falmouth
Board of Health or its designated agent(s). Any resident who desires
to register a complaint pursuant to the regulation may do so by contacting
the Falmouth Board of Health or its designated agent(s) and the Board
shall investigate.
W.
Severability: If any provision of this regulation is declared invalid
or unenforceable, the other provisions shall not be affected thereby
but shall continue in full force and effect.
X.
Effective Date: This regulation shall take effect on June 1, 2021.
[Effective 11-2006; amended 2-22-2016; 3-15-2021]
7.1.
Purpose.
The purpose of this regulation is to protect the health of the employees
and general public in the Town of Falmouth.
7.2.
Authority:
This regulation is promulgated under the authority granted to the
Falmouth Board of Health pursuant to MGL c. 111, § 31 that
"[b]oards of health may make reasonable health regulations." It is
also promulgated pursuant to MGL c. 270, § 22(j) which states
in part that "[n]othing in this section shall permit smoking in an
area in which smoking is or may hereafter be prohibited by law including,
without limitation: any other law or ordinance or by-law or any fire,
health or safety regulation. Nothing in this section shall preempt
further limitation of smoking by the Commonwealth or any department,
agency or political subdivision of the Commonwealth."
7.3.
Definitions.
A.
COMPENSATION
E-CIGARETTE
EMPLOYEE
EMPLOYER
ENCLOSED
MEMBERSHIP ASSOCIATION
(1)
(a)
(b)
(c)
(d)
(2)
MUNICIPAL BUILDING
SMOKING (or SMOKE)
TOBACCO PRODUCT
WORKPLACE
As used in this regulation, the following words shall have the
following meanings, unless the context requires otherwise:
Money, gratuity, privilege, or benefit received from an employer
in return for work performed or services rendered.
Any electronic device, not approved by the United States
Food and Drug Administration, composed of a mouthpiece, heating element,
battery and/or electronic circuits that provides a vapor of liquid
nicotine to the user, or relies on vaporization of any liquid or solid
nicotine. This term shall include such devices whether they are manufactured
as e-cigarettes, e-cigars, e-pipes, e-hookah or under any other product
name.
An individual or person who performs a service for compensation
for an employer at the employer's workplace, including a contract
employee, temporary employee, and independent contractor who performs
a service in the employer's workplace for more than a de minimus
amount of time.
An individual, person, partnership, association, corporation,
trust, organization, school, college, university or other educational
institution or other legal entity, whether public, quasi-public, private,
or non-profit which uses the services of one (1) or more employees
at one (1) or more workplaces, at any one (1) time, including the
Town of Falmouth.
A space bounded by walls, with or without windows or fenestrations,
continuous from floor to ceiling and enclosed by one (1) or more doors,
including but not limited to an office, function room or hallway.
A not-for-profit entity that has been established and operates,
for a charitable, philanthropic, civic, social, benevolent, educational,
religious, athletic, recreation or similar purpose, and is comprised
of members who collectively belong to:
a society, organization or association of a fraternal nature
that operates under the lodge system, and having 1 or more affiliated
chapters or branches incorporated in any state; or
a corporation organized under chapter 180; or
an established religious place of worship or instruction in
the commonwealth whose real or personal property is exempt from taxation;
or
a veterans' organization incorporated or chartered by the
Congress of the United States, or otherwise, having 1 or more affiliated
chapters or branches incorporated in any state.
Except for a religious place of worship or instruction, an entity
shall not be a membership association for the purposes of this definition,
unless individual membership is required for all members of the association
for a period of not less than 90 days.
Any building owned, leased, rented or operated by Falmouth.
The inhaling, exhaling, burning or carrying of a lighted
or heated cigar, cigarette, pipe or other tobacco product intended
for inhalation in any manner or form, including the use of electronic
cigarettes, electronic cigars, electronic pipes or other similar products
that rely on vaporization or aerosolization.
A product containing or made or derived from tobacco or nicotine
that is intended for human consumption, whether smoked, chewed, absorbed,
dissolved, inhaled, snorted, sniffed or ingested by any other means
including, but not limited to, cigarettes, cigars, little cigars,
chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic
cigars, electronic pipes, electronic nicotine delivery systems or
any other similar products that rely on vaporization or aerosolization
regardless of nicotine content in the product; provided, however,
that "tobacco product" shall also include any component, part or accessory
of a tobacco product; and provided further, that "tobacco product"
shall not include a product that has been approved by the United States
Food and Drug Administration for the sale of or use as a tobacco cessation
product or for other medical purposes and is marketed and sold or
prescribed exclusively for the approved purpose.
Any indoor area, structure or facility or a portion thereof,
at which one (1) or more employees perform a service for compensation
for an employer; other enclosed spaces rented to or otherwise used
by the public; and where the employer has the right or authority to
exercise control over the space.
B.
Terms not defined herein shall be defined as set forth in MGL
c. 270, § 22 and/or 105 CMR 661. To the extent any of the
definitions herein conflict with MGL c. 270, § 22 or 105
CMR 661, the definition contained in this regulation shall control.
7.4.
Smoking
prohibited.
A.
It shall be the responsibility of the employer to provide a
smoke-free environment for all employees working in an enclosed workplace
as well as those workplaces listed in Subsection C below.
B.
Smoking is hereby prohibited in the Town of Falmouth in accordance
with MGL c. 270, § 22 (commonly known as the "Smoke-Free
Workplace Law") and 105 CMR 661.
C.
Pursuant to MGL c. 270, § 22(j) smoking is also hereby
prohibited in any enclosed location open to the public including,
without limitation, public transportation, taxis, livery and other
ride-sharing vehicles. Additionally, smoking is hereby prohibited
in schools and school property; public transportation, taxi, livery,
and ride-sharing waiting areas; Town-owned parks, playgrounds, athletic
fields and beaches; municipal buildings; and any location that hosts
indoor or outdoor events or performances. Smoking is also hereby prohibited
in membership associations and outdoor areas where food and/or beverages
are served to the public by employees of restaurants, bars, and taverns
locations.
D.
The use of e-cigarettes is prohibited wherever smoking is prohibited
per MGL c. 270, § 22 and § 7.4C of this regulation.
7.5.
Enforcement.
A.
An owner, manager, or other person in control of a building,
vehicle or vessel who violates this section, in a manner other than
by smoking in a place where smoking is prohibited, shall be punished
by a fine of:
B.
Each calendar day on which a violation occurs shall be considered
a separate offense.
C.
This regulation shall be enforced by the Board of Health and
its designees.
D.
Violations of § 7.4B shall be disposed of by a civil
penalty using the non-criminal method of disposition procedures contained
in MGL c. 40, § 21D without an enabling ordinance or by-law.
The disposition of fines assessed shall be subject to MGL c. 111,
§ 188.
E.
Violations of § 7.4C and D may be disposed of by a
civil penalty using the non-criminal method of disposition procedures
contained in MGL c. 40, § 21D.
F.
If an owner, manager or other person in control of a building,
vehicle or vessel violates this regulation repeatedly, demonstrating
egregious noncompliance as defined by regulation of the Department
of Public Health, the Board of Health may revoke or suspend any Board
of Health-issued permit to operate and shall send notice of the revocation
or suspension to the Department of Public Health.
G.
Any person may register a complaint to initiate an investigation
and enforcement with the Board of Health, the local inspection department
or the equivalent.
7.6.
Severability.
If any paragraph or provision of this regulation is found to be illegal
or against public policy or unconstitutional, it shall not affect
the legality of any remaining paragraphs or provisions.
7.7.
Conflict
with other laws or regulations. Notwithstanding the provisions of
§ 7.4 of this regulation, nothing in this regulation shall
be deemed to amend or repeal applicable fire, health or other regulations
so as to permit smoking in areas where it is prohibited by such fire,
health or other regulations.
7.8.
Effective
date. This regulation shall be effective as of June 1, 2021.
[5-31-1983]
1.
Statutory authority. Under the authority of MGL c. 111, § 31,
the Town of Falmouth Board of Health hereby adopts the following regulations
to take effect on date of publication (May 31, 1983).
2.
Restrictions on use. Any nondomestic and/or licensed application
of pesticides, except for agricultural purposes, whose manufacturer's
label restricts application where ground- or surface waters of public
or private water supplies may be endangered is prohibited except as
allowed by special permit.
1.
Permit required. No land in the Town of Falmouth, whether privately
owned or devoted to any public use, shall be used for trailer camps
or overnight parking of inhabited trailers, or for camping in conjunction
with trailers, unless the owner or lessee thereof, has first obtained
a permit from the Board of Health.
2.
Required equipment. Before any land shall be used for a trailer camp,
or overnight parking of inhabited trailers, or for camping as aforesaid,
such land shall first be adequately and sufficiently equipped with
the following:
A.
An incinerator or incinerators sufficient to take care of all waste
material, which can and may properly be burned.
B.
An adequate method or methods of sewerage disposal of a type approved
by the Board of Health, or its agent.
C.
All land so used, shall be adequately and properly cleared or cleaned,
and shall at all times be kept free of paper, cans, litter, garbage,
junk and other waste material, or debris of every kind.
3.
Placement. In no case shall the number or placement of inhabited
trailers, or any particular parcel of land, be such as to constitute
crowding or congestion, and no owner or lessee of land used for trailer
camps or for overnight parking of inhabited trailers or for camping
as aforesaid, shall permit the placement or location of such trailers
within thirty (30) feet of each other.
4.
Violations and penalties. Any person or persons violating these regulations
shall be punishable by a fine not exceeding one hundred dollars ($100.).
1.
Statutory authority. Under the provision of MGL c. 111, § 31,
the Board of Health has adopted the following regulation applicable
to the Town of Falmouth.
2.
Well drillers certificate. Effective July 1, 1980, anyone drilling
a private well which will provide the primary source of water to a
dwelling or building and such water is to be used for human consumption
must file a current well drillers certificate with the Board of Health.
3.
Permit required. Prior to drilling a private well within the Town
of Falmouth for the purpose described herein, a permit must first
be obtained from the Board of Health. Upon applying for the permit,
the driller must submit a plot plan of the lot or area showing the
exact location of where the well is to be drilled, the location of
the individual sewage disposal system on the lot or area and the sewage
systems on immediate abutting lots. A distance of no less than one
hundred (100) feet must be maintained between the well and all subsurface
sewage disposal system in the area. A private well can only be utilized
to service those dwellings on a single lot or single bounded area.
The use of a single well to supply water to buildings on two (2) or
more lots is unauthorized. The regulations covering the authority
and operation of community or noncommunity water systems are covered
in the Drinking Water Regulations of Massachusetts which became effective
on June 24, 1977.
4.
Fee; variances. Cost of a permit for the drilling of a single private
well shall be five dollars ($5.). No variances will be granted from
these regulations.
5.
Violations and penalties. Failure to comply with the provisions contained
herein shall be punishable by a fine of no less than one hundred dollars
($100.) nor more than five hundred dollars ($500.).
[1-10-1992]
1.
Hiring of outside consultants; fee. When reviewing an application
for a variance to Title 5 or permit for another regulation, the Board
may determine that the assistance of outside consultants is warranted
due to the size, scale or complexity of a proposed project or because
of a project's potential impacts. The Board may require that applicants
pay a consultants fee consisting of the reasonable costs incurred
by the Board for the employment of outside consultants engaged by
the Board to assist in the review and analysis of an application.
2.
Payment of fee. The fee shall be paid for each application or subsequent
submittal which the Board deems necessary to have reviewed or analyzed
by outside consultants.
3.
Engagement of professionals. In hiring outside consultants, the Board
may engage engineers, planners, lawyers, hydrogeologists or other
appropriate professionals who can assist the Board in analyzing a
project to ensure compliance with all relevant laws, bylaws and regulations.
4.
Deposit of funds. Funds received by the Board pursuant to this Article
shall be deposited with the Municipal Treasurer who shall establish
a special account for this purpose. Expenditures from this special
account shall be made to carry out the Board's responsibilities under
state and location regulations and only in connection with the specific
project or projects for which a consultant's fee has been or will
be collected from the applicant.
5.
Failure to pay fee. Failure of an applicant to pay a consultant's
fee shall be grounds for denial of the variance or permit.
6.
Payment of account excesses. At the completion of the Board's review
of a project, any excess amount in the account including interest,
attributable to a specific project, shall be repaid to the applicant
or the applicant's successor in interest. A final report of said account
shall be made available to the applicant or the applicant's successor
in interest. For the purpose of this regulation, any person or entity
claiming to be an applicant's successor in interest shall provide
the Board with documentation establishing such succession in interest.
7.
Appeals. Any applicant may take an administrative appeal from the
selection of the outside consultant to the Board of Selectmen within
fourteen (14) days of notice of the selection. The grounds for such
an appeal shall be limited to claims that the consultant selected
has a conflict of interest or does not possess the minimum required
qualifications. The minimum qualifications shall consist either of
an educational degree in or related to, the field at issue or three
(3) or more years of practice in the field at issue or a related field.
8.
Time limit for action. The required time limit for action upon an
application by the Board shall be extended by the duration of the
administrative appeal. In the event that no decision is made by the
Board of Selectmen within one (1) month following the filing of the
appeal, the selection made by the Board shall stand.
[4-28-1992]
1.
Statutory authority. Under the authority of MGL c. 111, § 31,
the Board of Health hereby adopts the following regulation to protect
the health of the residents of the Town of Falmouth, effective immediately.
2.
Prohibition. Within the area of Falmouth affected by the Ashumet
Plume, as shown on a plan on file in the office of the Board of Health,
Town Hall, Falmouth, Massachusetts, entitled "Appendix 1 - Limits
of the National Guard Bureau liability in agreements signed in 1986,
1989 and 1991 and drawn on Assessors' Map Nos. 8, 9, 10, 17, 18, 20,
21 and 26 (August 1991)," plan dated September 3, 1991, sheet 1 of
1, no person shall drill a well for the purpose of obtaining water.
No person shall disconnect a building or structure from the municipal
water system and connect the building or structure to a well within
the area of defined on the referenced plan (above) to obtain water.
Wells may not be located on any portion of a lot located within the
boundary of said area.
[November 1, 1978; December 21, 1979; April 3, 1989; April
4, 2005]
15.1
Purpose and authority. The Falmouth Board of Health adopts these
regulations in accordance with Massachusetts General Laws, Chapter
111 Section 31, Chapter 21A Section 13, and the regulations contained
in 310 CMR 15.000 et seq. (as amended in 1995) to provide for the
protection of the public health. The supplements to 310 CMR 15.000
et. seq. are adopted due to the unique conditions in Falmouth including
among others, rapidly percolating soils, the abundance of recreational
and shellfish harvesting resources, extensive fresh water and salt
water wetlands, public drinking water supply wells and the occasional
presence of private drinking water wells.
15.2
Conditions that shall apply to all septic systems.
(1)
Septic Systems on Lot Served. All septic
systems and septic system components designed to dispose of sanitary
wastes shall be constructed on the same lot as the structure or structures
that they serve except that shared systems pursuant to 310 CMR 15.290-291
shall be allowed. No easements or right-of-way for the installation,
maintenance or service of any septic system on a different lot than
the lot to be served shall suspend, diminish or invalidate this regulation.
(2)
Manhole Covers. All septic tanks, cesspools,
pump chambers and leaching pit covers on existing and new individual
sewage disposal systems shall be of sound and durable materials. [December
21, 1979] Cement covers shall be free of all cracks and chips and
in good repair. Septic systems having covers at grade level shall
be of cement or steel construction. Cement covers must be a minimum
of twenty-four (24) inches in diameter and weigh at least 150 lbs.
The cover shall be set flush to the ground and not tilt when stepped
on. The rim of a steel manhole cover shall be firmly cemented in and
the steel cover removable only with the use of some type of implement.
For safety purposes, a cement cover may be used on top of a steel
cover. Failure to comply with the regulation is punishable by a fine
of twenty dollars ($20.). [December 21, 1979].
(3)
Observation Ports Required on Leaching Facilities. A minimum of two (2) observation ports, enabling the inspection
of effluent ponding levels, shall be installed in each leaching facility.
The observation port shall have a minimum two-inch diameter and shall
extend from the bottom of the leaching facility to within six (6)
inches of final grade. All observation ports shall have securely sealed
caps. If installed below grade, a metal object that will allow detection
with a metal detector shall be placed immediately on top of the end
cap. The location of all observation ports shall be noted on the septic
plan and accurately indicated on an as-built illustration. Any structure,
such as a gallery or chamber, having an observation port extended
to within six (6) inches of surface grade may substitute for a separately
installed observation port, provided that at least two (2) ports are
present and are evenly spaced in the soil absorption area. All observation
ports shall be labeled or otherwise marked to provide identification
and prevent misuse.
(4)
As-Built Illustrations Required. At the
time of final inspection, legible illustrations shall be submitted
to the Board of Health inspector that show the location of all components
of a septic system. Each reference on the illustrations shall contain,
at minimum, the distance from two (2) points on permanent structures
for each of the following: all observation ports, the center of two
(2) manholes for all tank or watertight structures, the four (4) corners
of the leaching facility or the beginning and end of each trench if
applicable, and the signature of the installer. As-built illustrations
shall be submitted on five-inch-by-seven-inch format, and a copy of
the as-built illustration shall be supplied to the homeowner.
(5)
Engineered Plans.
a)
The locus of the property on which a septic system is proposed
shall be provided on the septic system site plan. The locus shall
identify the nearest intersection and nearest three (3) streets to
the locus. A separate sheet containing the locus shall not satisfy
the requirement of this regulation.
b)
An electronic copy of the approved plan, in a format specified
by the Health Department, shall be submitted to the Board of Health
prior to the issuance of a certificate of compliance.
15.3
Approval of alternative onsite septic systems.
(1)
Purpose. In certain situations alternative
septic systems, when properly designed, constructed, operated, and
maintained, may provide enhanced protection of the public health and
the environment. Notwithstanding the sound technical basis of many
alternative technologies, the Falmouth Board of Health seeks, through
these regulations, to ensure that those alternative on-site septic
systems installed within its jurisdiction are operated in compliance
with the appropriate Commonwealth of Massachusetts approvals for these
technologies. In addition by ensuring the completion of all required
monitoring, the Board of Health seeks to gain information on the efficacy
of such technologies and modify its approval process accordingly.
(2)
Application Requirement.
a.
All applications for disposal system construction permits involving
the use of alternative septic system components purporting enhanced
treatment shall be submitted to the Board of Health which shall hold
a hearing to consider their approval. No abutter notification shall
be required for this approval except as otherwise required. The Board
of Health may deny the use of an alternative septic system if in its
opinion the installation of said system is not in the interest of
public health.
b.
All applications for alternative septic systems shall be accompanied
by a copy of the approval letter appropriate for the technology indicating
the level of approval (general use, remedial use, provisional use,
piloting use, or site-specific pilot approval).
c.
All applications for piloting approval shall be accompanied
by performance data from all piloting sites where the alternative
system has been similarly configured.
(3)
Requirements on Plans. All alternative
septic systems shall have sampling ports appropriate for obtaining
a representative sample and that are easily accessible and secured
from unauthorized tampering. The design plans incorporating the use
of alternative septic systems shall contain a clear illustration of
all sampling ports, accompanied by an illustration and explanation
for their use.
(4)
Monitoring Requirements. The Board of
Health may require monitoring of any alternative septic system that
exceeds monitoring specified in the approval letter issued by the
Massachusetts Department of Environmental Protection. The results
of all such monitoring shall be subject to the requirements of Section
15.3(5)
(5)
Reporting Requirements. Any person or
entity that owns, operates, inspects or monitors an alternative on-site
septic system or pressure dosed septic system in Falmouth shall cause
the results of all monitoring and inspections to be submitted to the
Barnstable County Department of Health and Environment in a format
designated by that department. All reports regarding maintenance,
monitoring or inspections of alternative septic systems shall be submitted
within thirty (30) days of the time when the maintenance, inspection
or monitoring was initiated.
(6)
Notification With Registry of Deeds. No
certificate of compliance for a septic system that incorporates an
alternative septic system that has any regular inspection or service
requirement under the Massachusetts Department of Environmental Protection
approval letter, shall be issued until the applicant has filed with
the deed for the property a notice indicating the presence of an alternative
septic system and the requirement for a service contract for the life
of the system.
(7)
Requirement for Use of Shared Systems. All subdivisions subject to the requirement of denitrification by
any Board or Commission in the Town of Falmouth, shall be required
to construct a shared septic system as defined in 310 CMR 15.002 and
shall meet a limit of twelve (12) mg/l Total Nitrogen at the point
where the treatment unit discharges to the soil absorption system.
Individual on-site denitrifying septic systems shall be prohibited
in subdivisions subject to denitrifying requirements.
15.4
Conditions that shall apply to pressure-dosed systems.
(1)
General Requirements. All pressure-dosed
systems shall be designed in accordance with the most recent guidelines
for the design and construction of pressure-dosed systems as available
through the Massachusetts Department of Environmental Protection.
(2)
The calculations for the sizing of pumps, diameter of discharge
orifices, diameter of all wastewater conveyance lines and the spacing
of orifices shall be provided at the time of application for a works
disposal permit. The permit application shall be considered incomplete
until this information is submitted.
(3)
The reports of inspection of all pressure-dosed systems shall
be submitted to the Barnstable County Department of Health and Environment
in a format designated by that Department.
15.5
Variances.
(1)
General Requirements. Variances may be
granted only as follows: The Board of Health may vary the application
of any provisions of this regulation with respect to any particular
case when, in its opinion the applicant has demonstrated that (1)
the enforcement thereof would do manifest injustice after considering
all the relevant facts and circumstances of the individual case; and
(2) a level of public health and environmental protection, that is
at least equivalent to that provided under these regulations, can
be achieved without strict enforcement of the provision of the regulation
from which a variance is being sought.
|
Every request for a variance shall be made in writing and shall
state the specific variance requested and the reasons therefor. All
variances required shall be noted on the plan and specify which restrictive
distance in 310 CMR 15.000 or Falmouth Board of Health regulations
can not be met. Any variance granted by the Board of Health shall
be in writing. Any denial of a variance shall also be in writing and
contain a brief statement of the reasons for the denial. A copy of
any variance granted shall be available to the public at all reasonable
hours in the office of the Town Clerk or the Board of Health while
it is in effect.
| |
|
Any variance or other modification authorized to be made by
these regulations may be subject to such qualification, condition,
revocation, suspension or expiration as the Board of Health expresses
in its grant. A variance or modification authorized to be made by
these regulations 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 an opportunity to be heard in conformity
with the requirements of 310 CMR 11.00 for orders and hearings.
| |
|
All variances to Title 5 granted by the Board of Health shall
be recorded at the Barnstable Registry of Deeds in the chain of title
of the subject property. The cost of recording shall be paid by the
applicant. A copy of the recorded variance shall be returned to the
Health Department. Variances shall be valid for two (2) years unless
a certificate of compliance for the associated construction works
permit application has been obtained.
|
(2)
Abutter Notification - 100 Feet. For
the purpose of notifying property abutters required by an action of
the Board of Health as provided by Massachusetts General Laws or a
Commonwealth of Massachusetts Regulation, abutters to a property shall
include all owners of property falling entirely or in part within
a one-hundred-foot radius taken from any point on the property line
of the subject lot. Abutters shall be identified through a certified
list of abutters obtained from the Falmouth Board of Assessor's and
said list shall be presented at the Board of Health hearing as evidence
that the abutters have all been properly identified.
(3)
Standard Conditions. The following conditions may be applied to variances granted from
the requirements of Title 5 and these regulations. The Board of Health
shall have the discretion to apply the conditions as they deem appropriate.
The purpose of these conditions is to attain the same degree of environmental
protection as would have been if the system conformed to Title 5.
The Board may add other conditions which it deems necessary to mitigate
environmental damage considering all the relevant facts and circumstances
of the individual case. For any variances the Board of Health may
require:
a.
The installation of flow-restrictor devices on all faucets and
shower fixtures in the house.
b.
A retrofitting of the toilets in the house to low-volume flush
toilets in addition to the placement of flow-restrictor devices on
all faucets and shower fixtures in the house.
c.
Design changes to the proposed plan which reduce the application
rate of the septic effluent.
d.
That there shall be no increase in the number of bedrooms or
rooms that could be adapted for use as an additional bedroom. A bedroom
is defined in DEQE [now DEP] correspondence 935- 2160, dated 22 October,
1985, which states "Bedroom" means any portion of a dwelling which
is so designed as 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 or unfinished cellar.
e.
That the existing system must be pumped dry and filled with
clean soil before the new system is in service, or the system removed
and the resulting void filled.
f.
That the excavation area must be adequately shored during construction
so as to prevent the roadway from caving in or being undermined.
g.
That the septic tank must be pumped at two-year intervals.
h.
That no garbage grinder shall be allowed.
i.
That the leaching area must be redesigned to provide a distribution
line to each leaching component.
j.
That wells near the property must be moved to meet the one-hundred-foot
lateral separation.
k.
That irrigation wells located within fifty (50) feet must be
decommissioned and their use discontinued.
(4)
Penalties
|
Penalty for failure to comply with any provision of this regulation
shall be governed by Massachusetts General Laws, Chapter 111, Section
31. Each day's failure to comply with an order shall constitute a
separate violation.
| |
|
Further, the Board of Health, after notice to and after a hearing
thereon, may suspend, revoke, or modify any permit issued hereunder
for cause shown.
|
15.6
Septic system location and construction.
|
Septic Systems Near Surface Waters and Wetlands
| |
|---|---|
|
Purpose: On-site sewage disposal systems designed to meet 310
CMR, 15.00: The State Environmental Code Title 5, Minimum Requirements
for the Subsurface Disposal of Sanitary Sewage have not proven to
be adequate protection from viruses, pathogens, and other contaminants
of groundwater and surface water particularly in areas where there
is a lack of filtration due to rapidly percolating soils. Scientists
have observed virus entrainment in groundwater to distances of greater
than two hundred (200) feet from where they were introduced to the
subsurface through a conventional on-site sewage disposal system,
and in saturated or groundwater flow, viruses can travel unattenuated
in medium-to-coarse sands for distances exceeding the minimum requirements
set forth in 310 CMR 15.211. Human consumption of viruses, pathogens,
and other contaminants which enter shellfish resource areas, swimming
areas, and/or within zones of contribution to public water supply
wells can place the public at risk to disease.
|
1.
Prohibition of Systems within one hundred (100) feet of Resource
Areas that Serve New Construction
|
No septic system leaching facility serving new construction
as defined in 310 CMR 15.002 shall be constructed within one hundred
(100) feet of a surface water or wetlands (as defined in 310 CMR 15.002
The State Environmental Code, Title 5: Minimum Requirements for the
Subsurface Disposal of Sanitary Sewage) or within one hundred (100)
feet of a water body or a bordering vegetated wetland as described
in 310 CMR 10.00: Wetlands Protection. Further, no system shall be
located on a coastal beach, barrier beach or dune as described in
310 CMR 10.00: Wetlands Protection Act. The minimum distance of a
completely sealed septic tank shall be fifty (50) feet from a surface
water or wetland as defined above.
|
2.
Conditions that Shall Apply to Repair of Septic Systems Within one
hundred (100) feet of Surface Waters or Wetlands.
|
The following conditions shall be required for the repair of
those septic systems proposed within one hundred (100) feet of surface
waters or wetlands. These regulations proceed on the principle that
localized hydraulic loading resulting from gravity fed soil absorption
systems results in decreased hydraulic retention, decreased wastewater
treatment and removal of pathogens. This situation compromises the
public health near sensitive receptor sites such as surface waters,
including wetlands. This regulation incorporates the principle that
increased vertical separation between the bottom of the soil absorption
system or equalized loading over the soil absorption system, afforded
by pressure distribution networks, or alternative technologies may
compensate for horizontal setback deficiencies. Accordingly, where
the health agent has determined that all feasible means have been
taken to minimize the incursions toward the resource area, the following
design features shall be incorporated. Notwithstanding the incorporation
of the following design features, the health agent may, at his/her
discretion refer any plan to the Board of Health for a hearing when,
in their opinion, the applicant has not adequately demonstrated that
all feasible means have been taken to minimize excursions toward resource
areas.
|
a)
Where no increased design flow is proposed and where the bottom
elevation of the soil absorption system (SAS) is greater than ten
(10) feet from the adjusted seasonal high groundwater and where the
maximum achievable horizontal separation between the SAS and a surface
water or wetland is at least fifty (50) feet, but less than one hundred
(100) feet, the applicant shall demonstrate that they have achieved
the maximum separation between the soil absorption system and the
resource area and the approval shall be subject to the conditions
of FHR 15.5(3) a,d,g,h,i,j and k.
b)
Where no increased flow is proposed and the bottom elevation
of the soil absorption system (SAS) is less than ten (10) feet but
at least five (5) feet from the adjusted seasonal high groundwater
(but is otherwise in compliance with 310 CMR 15.202) and where the
maximum achievable horizontal separation between the SAS and a surface
water or wetland is at least seventy-five (75) feet but less than
one hundred (100) feet the applicant shall demonstrate that they have
achieved the maximum separation between the soil absorption system
and the resource area and the approval shall be subject to the conditions
of FHR 15.5(3) a,b,d,g,h,i,j and k.
c)
Where no increased flow is proposed and the bottom elevation
of the soil absorption system (SAS) is less than ten (10) feet but
at least five (5) feet from the adjusted seasonal high groundwater
(but otherwise in compliance with 310 CMR 15.202) and where the maximum
achievable horizontal separation between the SAS and a surface water
or wetland is at least fifty (50) feet but less than seventy-five
(75) feet a pressure distribution system shall be required that conforms
to guidelines issued by the Massachusetts Department of Environmental
Protection. The approval shall be subject to the conditions of FHR
15.5(3) a,b,d,g,h,i,j and k.
d)
Where no increased design flow is proposed and where the bottom
elevation of the soil absorption system (SAS) is greater than ten
(10) feet from the adjusted seasonal high groundwater and where the
maximum achievable horizontal separation between the SAS and a surface
water or wetland is less than fifty (50) feet but at least forty (40)
feet, a pressure distribution system shall be required that conforms
to guidelines issued by the Massachusetts Department of Environmental
Protection. The approval shall be subject to the conditions of FHR
15.5(3) a,b,d,g,h,i,j and k.
e)
Where no increased design flow is proposed and where the bottom
of the soil absorption system (SAS) is less than ten (10) feet from
the adjusted seasonal high groundwater (but otherwise in compliance
with 310 CMR 15.202) and where the maximum achievable horizontal separation
between the SAS and a surface water or wetland is less than fifty
(50) feet but at least forty (40) feet, an alternative on-site septic
system in conjunction, a disinfection unit having no chemical residual,
and a pressure distribution system shall be required that conforms
by the Massachusetts Department of Environmental Protection. The approval
shall be subject to the conditions of FHR 15.5(3) a,b,d,g,h,i,j and
k.
15.7
Criteria for determining a septic
system repair or replacement. To protect the public health against
potential sources of contamination of the ground and surface waters
in the Town of Falmouth, the Board of Health adopts the following
regulation. The Board of Health may require the repair or replacement
of a septic system if any of the following apply:
1)
The results of an inspection of the septic system pursuant to 310
CMR 15.300- 310 CMR 15.304 reveal that the system is failed.
2)
Any of the following observations is made independent of a complete
inspection pursuant to 310 CMR 15.300- 310 CMR 15.3: there is evidence
of sewage flow to the surface of the ground, there is structural damage
to the components of the system which prevent it from functioning
as required, the system was pumped more than two (2) times in a ninety-day
period (excluding maintenance pumping of grease traps), there is evidence
of breakout, there was sewage back-up into the house resulting from
a non-functioning leaching area, the standing liquid level in the
leaching facility(s) is indicated to have persisted by staining within
two (2) inches of the invert pipe elevation, the system is damaged
or destroyed by storm or flood.
3)
In the case where the septic system serving a facility is located
less than one hundred (100) feet from a surface water or wetland and
the system is comprised of a cesspool or cesspools and where the estimated
seasonal high groundwater is less than two (2) feet from the bottom
elevation of any cesspool, the system shall be considered failed and
shall be replaced with a system in compliance with 310 CMR 15.000
et seq. Observations of these conditions in the course of an inspection
pursuant to 310 CMR 15.300 - 15.305 shall be referenced on the certification
statement part of the inspection form in the words "Needs Further
Evaluation by Approving Authority."
4)
Soil absorption systems equipped with monitoring ports installed
pursuant to FHR 15.2(3) shall be deemed failed if the ponding level
is indicated to be eighty percent (80%) or greater in height compared
to the effective designed sidewall depth in the case of trenches or
greater than five (5) inches in height in the case of leaching bed
designs. For purpose of this calculation, the inspector shall measure
from the soil or soil-aggregate interface to the lowest invert elevation
of the discharge lateral. This latter elevation may be calculated
from the design plan and take into consideration the location of the
observation port relative to the lowest invert elevation of the discharge
lateral.
[Added 2-6-2006]
I.
Purpose of regulation. Whereas: floor drains in industrial and commercial
facilities are often tied to a system leading to a leaching structure
(e.g., dry well, cesspool, leach field) or a septic system; and poor
management practices and accidental and/or intentional discharges
may lead petroleum and other toxic or hazardous materials into these
drainage systems in facilities managing these products; and improper
maintenance or inappropriate use of these systems may allow the passage
of contaminants or pollutants entering the drain to discharge from
the leaching structure or septic system to the ground; and discharges
of hazardous wastes and other pollutants to floor drains leading to
leaching structures and septic systems have repeatedly threatened
surface and ground water quality throughout Massachusetts; and surface
and ground water resources in the Town of Falmouth contribute to the
Town's drinking water supplies; the Town of Falmouth adopts the following
regulation, under its authority as specified in Section II as a preventative
measure for the purposes of: preserving and protecting the Town of
Falmouth's drinking water resources from discharges of pollutants
to the ground via floor drains, and minimizing the threat of economic
losses to the Town due to such discharges.
II.
Scope of authority. The Town of Falmouth Board of Health adopts the
following regulation pursuant to authorization granted by MGL c. 111
§§ 31 and 122. The regulation shall apply, as specified
herein, to all applicable facilities, existing and new, within the
Town of Falmouth.
III.
COMMERCIAL AND INDUSTRIAL FACILITY
DEPARTMENT
DISCHARGE
FLOOR DRAIN
LEACHING STRUCTURE
OIL/WATER SEPARATOR
TOXIC OR HAZARDOUS MATERIAL
USE OF TOXIC OR HAZARDOUS MATERIAL
Definitions. For the purposes of this regulation, the following
words and phrases shall have the following meanings:
A public or private establishment where the principal use
is the supply, sale, and/or manufacture of services, products, or
information, including but not limited to: manufacturing, processing,
or other industrial operations; service or retail establishments;
printing or publishing establishments; research and development facilities;
small or large quantity generators of hazardous waste, laboratories,
hospitals.
The Massachusetts Department of Environmental Protection.
The accidental or intentional disposal, deposit, injection,
dumping, spilling, leaking, incineration, or placing of toxic or hazardous
material or waste upon or into any land or water so that such hazardous
waste or any constituent thereof may enter the land or waters of the
commonwealth. Discharge includes, without limitation, leakage of such
materials from failed or discarded containers or storage systems and
disposal of such materials into any on-site leaching structure or
sewage disposal system.
An intended drainage point on a floor constructed to be otherwise
impervious which serves as the point of entry into any subsurface
drainage, treatment, disposal, containment, or other plumbing system.
Any subsurface structure through which a fluid that is introduced
will pass and enter the environment, including, but not limited to,
drywells, leaching catch basins, cesspools, leach fields, and oil/water
separators that are not watertight.
A device designed and installed so as to separate and retain
petroleum based oil or grease, flammable wastes as well as sand and
particles from normal wastes while permitting normal sewage or liquid
wastes to discharge into the drainage system by gravity. Other common
names for such systems include MDC traps, gasoline and sand traps,
grit and oil separators, grease traps, and interceptors.
Any substance or mixture of physical, chemical, or infectious
characteristics posing a significant, actual, or potential hazard
to water supplies or other hazards to human health if such substance
or mixture were discharged to land or water of the Town of Falmouth.
Toxic or hazardous materials include, without limitation, synthetic
organic chemicals, petroleum products, heavy metals, radioactive or
infectious waste acids and alkalis, and all substances defined as
toxic or hazardous under MGL c. 21C and 21E or Massachusetts Hazardous
Waste regulations (310 CMR 30.000), and also include such products
as solvents, thinners, and pesticides in quantities greater than normal
household use.
The handling, generation, treatment, storage, or management
of toxic or hazardous materials.
IV.
Prohibitions. With the exception of discharges that have received
(or have applied and will receive) a Department issued permit prior
to the effective date of this regulation, no floor drain(s) shall
be allowed to discharge, with or without pretreatment (such as an
oil/water separator), to the ground, a leaching structure, or septic
system in any industrial or commercial facility if such floor drain
is located in either:
A.
An industrial or commercial process area,
B.
A petroleum, toxic, or hazardous materials and/or waste storage
area, or
C.
A leased facility without either A or B of this section, but
in which the potential for a change of use of the property to a use
which does have either A or B is, in the opinion of the Board of Health
or its agent, sufficient to warrant the elimination of the ground
discharge at the present.
V.
Requirements for existing facilities.
A.
The owner of a facility in operation prior to the effective date
of this regulation with a prohibited (as defined under Section IV)
floor drain system shall:
(1)
Disconnect and plug all applicable inlets to and outlets from
(where possible) applicable leaching structures, oil/water separators,
and/or septic systems;
(2)
Remove all existing sludge in oil/water separators, septic systems,
and where accessible, leaching structures. Any sludge determined to
be a hazardous waste shall be disposed of in accordance with state
hazardous waste regulations (310 CMR 30.000). Remedial activity involving
any excavation and/or soil or groundwater sampling must be performed
in accordance with appropriate Department policies;
(3)
Alter the floor drain system so that the floor drain shall be
either:
(a)
Connected to a holding tank that meets all applicable
requirements of Department policies and regulations, with hauling
records submitted to the Falmouth Board of Health at the time of hauling;
(b)
Connected to a municipal sanitary sewer line, if
available, with all applicable Department and local permits; or
(c)
Permanently sealed. (Any facility sealing a drain
shall be required to submit for approval to the Board of Health a
hazardous waste management plan detailing the means of collecting,
storing, and disposing any hazardous waste generated by the facility,
including any spill or other discharge of hazardous materials or wastes.)
B.
Any oil/water separator remaining in use shall be monitored weekly,
cleaned not less than every ninety (90) days, and restored to proper
conditions after cleaning so as to ensure proper functioning. Records
of the hauling of the removed contents of the separator shall be submitted
to the Board of Health at the time of hauling.
C.
Compliance with all provisions of this regulation must be accomplished
in a manner consistent with Massachusetts Plumbing, Building, and
Fire code requirements.
D.
Upon complying with one of the options listed under Section VA3,
the owner/operator of the facility shall notify the Department of
the closure of said system by filing the Department's UIC Notification
Form (which may be obtained by calling 617/292-5770) with the Department,
and sending a copy to the Falmouth Board of Health.
VI.
Effective dates for all facilities. The effective date of this regulation
is the date posted on the front page of the regulation, which shall
be identical to the date of adoption of the regulation.
A.
Existing facilities:
(1)
Owners/Operators of a facility affected by this regulation shall
comply with all of its provisions within one hundred twenty (120)
days of the effective date;
(2)
All applicable discharges to the leaching structures and septic
systems shall be discontinued immediately through temporary isolation
or sealing of the floor drain.
B.
New facilities:
(1)
As of the effective date of the regulation, all new construction
and/or applicable change of use within the Town of Falmouth shall
comply with the provisions of this regulation.
(2)
Certification of conformance with the provisions of this regulation
by the Board of Health shall be required prior to issuance of construction
and occupancy permits.
(3)
The use of any new oil/water separator shall comply with the
same requirements as for existing systems, as specified above in Section
VB.
VII.
Penalties. Failure to comply with provisions of this regulation
will result in the levy of fines of not less than two hundred dollars
($200), but no more than one thousand dollars ($1,000). Each day's
failure to comply with the provisions of this regulation shall constitute
a separate violation.
|
Note: Effective 1992, under MGL c. 111, § 31 (violation
of health regulation), maximum fines increased from five hundred dollars
($500) to one thousand dollars ($1,000) and § 122 (violation
of nuisance regulations) maximum fines increased from one hundred
dollars ($100) to one thousand dollars ($1,000).
|
VIII.
Severability. Each provision of this regulation shall be construed
as separate to the end that, if any provision, or sentence, clause
or phrase thereof, shall be held invalid for any reason, the remainder
of that section and all other sections shall continue in full force
and effect.
[Added 2-5-2018]
A.
Statement of purpose: In an effort to provide additional safety at
Falmouth semi-public pools, the Falmouth Board of Health has adopted
a local regulation for public and semi-public pools in addition to
the Massachusetts state code 105 CMR 435. These regulations are required
for licensing; in addition to the regulations already defined by Massachusetts
Department of Public Health which are currently enforced by the Falmouth
Board of Health.
B.
Authority: The Falmouth Board of Health pursuant to MGL c. 270, § 22,
and MGL c. 111, § 31, adopts these regulations as reasonable
health regulations designed to protect and improve the health of its
residents.
C.
HARD-WIRED
MANAGEMENT
OWNER
SECURE LOCKING MECHANISM
Definitions.
A communication system as per Massachusetts state code 105
CMR 435 with direct access through a landline or otherwise automatic
connection provides emergency location identification of caller to
emergency personnel.
The person or entity responsible for compliance with swimming
pool regulations; may also be synonymous with owner.
The person or entity responsible for compliance with swimming
pool regulations; may also be synonymous with management.
A device that prohibits entry through a gate without the
use of a key, padlock, key card (or equivalent) to a reasonable extent.
D.
Amendments to state pool regulations.
1.
In
addition to the required latches per Massachusetts state code 105
CMR 435, a secure locking mechanism is to be in use with a self-closing
system for the gate with the intent to prevent unaccompanied child
entry. All gates shall open outward from pool enclosure and shall
not open inward. When pools are not available for use, they shall
be locked.
2.
A hardwired
communication system with direct access to Falmouth emergency dispatch
shall be tested at annual inspection to ensure tracking call origin
for emergency personnel. The communication system shall be placed
at the specified height, per Massachusetts building code access 521
CMR 37.
3.
Plans
with the listed address, actual location of pool/pools on each property,
and instructions for the quickest access for emergency personnel are
to be provided to the Falmouth Board of Health and Falmouth Fire and
Rescue with the annual licensing application. Any change to the access
at any time must be provided to the Falmouth Board of Health and Falmouth
Fire and Rescue.
4.
Management/owners
are to inform residents and guests, upon arrival to the property,
of emergency procedure information and basic instructions for use
of the emergency equipment on site. Provision of this verbal or written
information will be in addition to posted signage of pool safety rules,
and a copy of the method of information is to be provided to the Board
of Health with each annual license application.
5.
Pool
lighting systems require visibility to the bottom of the pool for
all operating hours including evening hours and are to be checked
for level of visibility by the management. Compliance will be noted
with each annual licensing application.
6.
All
children under sixteen (16) shall be supervised by a responsible adult.
There shall be at least one adult for every five (5) children or fraction
thereof, in the absence of a dedicated on-duty lifeguard. When a dedicated
on-duty lifeguard is present it is recommended that the ratio of swimmers
to lifeguard(s) not exceed 25:1, in accord with Massachusetts state
code recommendation.
E.
Signage. Signage, in addition to required Massachusetts code signage,
shall include the phrase: A responsible adult may supervise no more
than 5 children under the age of 16 at the pool.
G.
Enforcement.
1.
1.
Enforcement of these regulations shall be by the Board of Health of
Falmouth or its designated agent(s).
2.
2.
Any citizen who desires to register a complaint pursuant to the regulation
may do so by contacting the Board of Health of Falmouth or its designated
agent(s) and the Board shall investigate.
H.
Severability: If any provision of these regulations is declared invalid
or unenforceable, the other provisions shall not be affected thereby,
but shall continue in full force and effect.
I.
Effective date is 30 days from published date.
J.
Variances.
|
General requirements: Variances may be granted only as follows:
the Board of Health may vary the application of any provisions of
this regulation with respect to any particular case when, in its opinion
the applicant has demonstrated that (1) the enforcement thereof would
do manifest injustice after considering all the relevant facts and
circumstances of the individual case; and (2) a level of public health
and protection, that is at least equivalent to that provided under
these regulations, can be achieved without strict enforcement of the
provision of the regulation from which a variance is being sought.
|
|
Every request for a variance shall be made in writing and shall
state the specific variance requested and the reasons therefor from
the Falmouth Board of Health regulations only. All variances granted
by the Falmouth Board of Health shall be in writing. Any denial of
a variance shall also be in writing and contain a brief statement
of the reasons for the denial. A copy of any variance granted shall
be available to the public at all reasonable hours in the office of
the Town Clerk or the Board of Health while it is in effect.
|
|
Any variance or other modification authorized to be made by
these regulations may be subject to such qualification, condition,
revocation, suspension or expiration as the Board of Health expressed
in its grant. A variance or modification authorized to be made by
these regulations may otherwise be revoked, modified or suspended,
in whole or in part, only after the hold thereof has been notified
in writing and has been given an opportunity to be heard in conformity
with the requirements of Massachusetts state code 105 CMR 435 for
orders and hearings.
|
