A.
Variances may be granted only as follows: The Board
of Health may vary the application of any provisions of this chapter,
except where expressly forbidden elsewhere in this chapter, with respect
to any particular case when, in its opinion, the enforcement thereof
would do manifest injustice and the applicant has proved that the
same degree of environmental protection required under this chapter
can be achieved without strict application of the particular provision.
B.
Every request for a variance shall be made in writing
and shall state the specific variance sought and the reasons therefor.
No variance shall be granted for a new sewage disposal system, nor
for an enlargement to an existing system which increases the capacity
to accommodate additional flows, except after the applicant has notified
all abutters by certified mail at his own expense at least 10 days
before the Board of Health meeting at which the variance request will
be on the agenda. The notification shall state the specific variance
sought and the reasons therefor. Variance may be issued for the repair
of an existing sewage disposal system without the requirement of notification
of all abutters by the applicant.
C.
Any variance granted by the Board of Health shall
be in writing. Any denial of a variance shall also be in writing and
shall contain a brief statement of the reasons for the denial. A copy
of each variance shall be conspicuously posted for 30 days following
its issuance and shall be available to the public at all reasonable
hours in the office of the City or Town Clerk or the office of the
Board of Health while it is in effect. Notice of the grant of each
variance shall be filed with the Department of Environmental Quality
Engineering, which shall approve, disapprove or modify the variance
within 30 days from receipt thereof. If the Department fails to comment
within 30 days, its approval will be presumed. No work shall be done
under the variance until the Department approves it or 30 days elapse
without its comment, unless the Board of Health or the Department
certifies, in writing, that an emergency exists.
A.
Any variance or other modification authorized to be
made by this chapter may be made subject to such qualification, revocation,
suspension or expiration as the Board of Health or Department of Environmental
Quality Engineering expresses in its grant.
B.
A variance or other modification authorized to be
made by this chapter 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 Title 1 of the Environmental Code for orders
and hearings.
The provisions of Title 1 of the Environmental
Code shall govern the enforcement of this chapter as supplemented
by the following sections.
A.
If an examination, as provided for in Title 1, reveals
failure to comply with the provisions of this chapter, the Board of
Health or Department of Environmental Quality Engineering shall order
the persons responsible to comply with the violated provision.
B.
Every order authorized by this chapter shall be in writing. Orders issued under the provisions of Subsection A above shall be served on the designated person:
(1)
Personally, by any person authorized to serve civil
process;
(2)
By leaving a copy of the order at his last and usual
place of abode;
(3)
By sending him a copy of the order by registered or
certified mail, return receipt requested, if he is within the Commonwealth;
or
(4)
If his last and usual place of abode is unknown or
outside the Commonwealth, by posting a copy of the order in a conspicuous
place on or about the affected premises.
C.
Subject of the emergency provision of Title 1, any
order issued under the provisions of this chapter shall:
(1)
Include a statement of the violation or defect and
may suggest action which, if taken, will effect compliance with this
chapter;
(2)
Allot a reasonable time for any action it requires;
and
(3)
Inform the person to whom it is directed of his right
to a hearing and of his responsibility to request the hearing and
to whom the request shall be made.
A.
Procedure for requesting and holding hearing. Unless
otherwise specified in this chapter, the person or persons to whom
any order has been served pursuant to any section of this chapter
may request a hearing before the agency that issued the order by filing
with said agency, within seven days after the day the order was served,
a written petition requesting a hearing on the matter. Upon receipt
of such petition, the agency shall set a time and place for such a
hearing and shall inform the petitioner thereof in writing. The hearing
shall be commenced not later that 45 days after the day on which the
order was served. The agency, upon application of the petitioner,
may postpone the date of the hearing for a reasonable time beyond
such forty-five-day period if, in the judgment of the agency, the
petitioner has submitted a good and sufficient reason for such postponement.
B.
Hearing of petitioner. At the hearing, the petitioner
shall be given an opportunity to be heard and to show cause why the
order should be modified or withdrawn.
C.
Procedure by agency after the hearing. After the hearing,
the Board of Health or Department of Environmental Quality Engineering
shall sustain, modify or withdraw the order and shall inform the petitioner,
in writing, of its decision. If the Board of Health or Department
of Environmental Quality Engineering sustains or modifies the order,
it shall be carried out within the time period allotted in the original
order or in the modification.
D.
Public record. Every notice, order or other record
prepared by the Board of Health or Department of Environmental Quality
Engineering in connection with the hearing shall be entered as a matter
of public record in the office of the Clerk of the City or Town or
in the office of the Board of Health or Department of Environmental
Quality Engineering.
E.
Hearing petition not submitted or sustaining of order.
If a written petition for a hearing is not filed with the Board of
Health or the Department of Environmental Quality Engineering within
seven days after the day an order has been served or if, after a hearing,
the order has been sustained in any part, each day's failure to comply
with the order as issued or modified shall constitute an additional
offense.
Any person aggrieved by the decision of the
Board of Health or Department of Environmental Quality Engineering
may seek relief therefrom within 30 days in any court of competent
jurisdiction, as provided by the laws of this commonwealth.
A.
Any person who shall violate any provision of this
chapter for which penalty is not otherwise provided in any of the
General Laws or in any other provision of this chapter or Title 1
of the Environmental Code shall, upon conviction, be fined not less
than $10 nor more than $500.
B.
Any person who shall fail to comply with any order
issued pursuant to the provisions of this chapter shall, upon conviction,
be fined not less than $10 nor more than $500. Each day's failure
to comply with an order shall constitute a separate violation.
Each section of this chapter shall be construed
as separate to the end that if any section 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.
