Mass. DEP Crushed by Massachusetts Health Boards in Septic Systems Dispute


Mass. DEP Crushed by Massachusetts Health Boards in Septic Systems Dispute

by Kristen Brissette

The Massachusetts Department of Environmental Protection (DEP) has proposed to amend the state’s regulations regarding Title 5, the septic system code. DEP is mandating that tens of thousands of Massachusetts residents who own a single-family home install nitrogen-filtering septic systems in the next five years which could cost up to $35,000 per household.

The Massachusetts Association of Health Boards (MAHB) is the legal technical assistance provider contracted by the State Department of Public Health to support boards of health in meeting their statutory and service responsibilities. In a letter obtained by the Broadside, MAHB detailed why DEP’s proposed regulation mandate is wrong since there is no data, evidence, or proof to support the upgrade.

On January 30, 2023, Cheryl Sbarra, executive director and senior staff attorney for MAHB, and Michael Hugo, director of policy and government relations for MAHB, wrote and sent a letter to DEP Acting Commissioner Gary Moran. Representing MAHB, Sbarra and Hugo addressed DEP’s proposed regulations governing nitrogen-sensitive areas. The letter also addressed MAHB, a member of the Title 5/Groundwater Discharge Stakeholder Group, being excluded from reviewing all public comments that DEP received regarding this subject.

In the letter, MAHB asserted, “The regulation as proposed is a textbook example of an unfunded mandate. DEP is proposing a program that will require hundreds of thousands if not millions of dollars to establish on a local level, and is placing enforcement within local boards of health, as they are statutorily obligated to. The agency is foisting a program upon local boards without any consideration for the actual, real-life, foreseeable hardships that this proposed regulation will bring to local boards. No consideration has been given to funding the staff for education, community outreach, or other staff-driven functions. There is nothing in the DEP regulation to establish any revenue sources to carry out what is arguably the largest undertaking aimed at local public health ever, even considering the demands COVID-19 placed on our boards. On the Cape and Islands, as well as other coastal communities, this undertaking will be unprecedented.”

DEP’s proposed regulation fails to acknowledge exemptions under the state’s general laws regarding areas such as 40B affordable housing exemptions, grandfathering exemptions, and agricultural property exemptions.

The letter commenced with, “As you are aware, in 2017, DEP created and began engaging with a Title 5/Groundwater Discharge Stakeholder Group representing a diverse range of interests to review comments received on the Title 5 regulations and consider potential revisions including discussion of a solution to address excessive nitrogen in embayments and estuaries. Although MAHB is listed on your online Frequently Asked Questions sheet as a member of the stakeholder group, we cannot locate any correspondence where we were informed of such inclusion and have no record of our participation to this point.”

MAHB wrote, “We have exhaustively reviewed every one of your public forums held on this issue and wish to offer the following comments. In addition, we have conferred with several of our constituent members, and have reviewed several submissions by various boards of health, select boards, and other municipal bodies in the formation of these comments.”

MAHB confined the scope of their comments to the most pressing issues affecting the 351 local boards of health focusing on the coastal areas of the south coast region, Plymouth County, and the Cape and Islands.

Areas of utmost concern to MAHB which are a threat to public health are environmental pollution, abatement of the existential threat of global warming, and the toxic pollution of estuaries and the water supply. These issues in the proposed regulations must be properly addressed before they harm the economy of the Cape and Island’s through a decline in tourism, fishing, and property values.

In viewing issues through a public-health lens, MAHB noted, “From our review of data upon which this proposed regulation is based, we cannot see any evidence of analysis addressing social determinants of public health flowing from the proposed regulations.”

Economic Burden to Implement and Regulate

“The shifting of substantial economic burdens of implementing the proposed regulations to local boards of health without any anticipated resource allocation allowing local public health to recapture the extraordinary expenses that will be incurred in establishing the mandated programs. While DEP is mandating many steps by local health department staff to both initiate these programs and to later enforce them, there is no mention of the potential additional hundreds of millions of dollars that will likely be obligated nor is there any evidence of financial analysis to determine what those additional resources will likely involve. Coming off of COVID-19, the ranks of the 351 boards of health have thinned considerably from what they were at the time this program was conceived by DEP. The strains on staff that did not exist and that were not even imaginable in 2017 when this idea was first advanced,” MAHB claimed. The funding streams and ideas that formed the inception of this proposal are no longer feasible.

DEP failed to address the legal enforcement responsibility leading MAHB to ask, “How much legal staff will DEP supply versus town counsel for the enforcement? Clearly not everyone will comply. There are going to be as many good reasons not to comply as there are homeowners in the affected areas. One commentator has raised the possibility of a 70% compliance rate and has made a case for how the remaining 30% can overwhelm municipal finances not to mention an already badly backlogged court docket. We fail to see any indemnity provision where DEP is obligating itself to enforce judicial actions. This is unsatisfactory.”

Financial Burden to Homeowners

MAHB conveyed in the letter that a mandated upgrade to homeowners will cause an unnecessary financial burden writing, “The assumption that individual homeowners will be minimally impacted because they can attain interest-free financing is as humane as it is shortsighted. Throughout the process, the role of the individual homeowner has been downplayed, and the public health impacts have been totally ignored. As homeowners on fixed incomes are confronted with the potential of a $35,000 (a number that is used repeatedly as the base cost of a per-home upgrade, but for which we can find no support either way) interest-free improvement, we cannot find a single public health impact analysis and that raises several questions. Not everyone living in the affected areas own their property as a second or beach house. The overwhelming majority of properties are nowhere near the beach and belong to those living on the edge. The reality is that adding this obligation to their cycle of monthly bills will destroy their household in many ways.”

Enforcement of Reasonable Health Regulations

“In Massachusetts, local boards of health have never had a single rational health regulation overturned by a court and sustained on appeal. This regulation, if adopted and enforced by our boards, will certainly change all of that! Boards of health are empowered by General Law Chapter 111 Section 31 to make reasonable health regulations. The courts have held that ‘The right to engage in business must yield to the paramount right of government to protect the public health by any rational means.’ Courts recognize that board of health regulations stand on the same footing as a statute, ordinance, or by-law. In order to overturn a health regulation in Massachusetts, the party challenging must prove it is illegal, arbitrary or capricious and must establish an absence of grounds the regulation may be upheld. When applying the arbitrary and capricious standard, the reviewing court is not authorized to weigh evidence, find facts, exercise discretion or substitute its judgment for that of the administrative body, there must be a rational underpinning to the regulation or action by the board of health.

The case of Glass v. Town of Marblehead Board of Health is a decision by a trial judge that comes from the Marblehead Board of Health attempting to enforce a DEP regulation from which the CMR (Code of Massachusetts Regulations) issued a regulation that was not based upon a quantifying definition of the underlying amount of noise that would constitute a violation of a regulation. The similarities are striking and chilling in the implementation of this proposed regulation. The proposed regulation by the department mandates that all on-site systems installed must be a Best Available Nitrogen-Reducing Technology with no definition or other quantification of what that is,” MAHB communicated.

The letter concluded with “MAHB cannot endorse this proposed regulation as it stands. It has been driven by a need for the DEP to meet a settlement of ancillary litigation and because of impending deadlines in that litigation. MAHB respectfully submits DEP has put its needs ahead of the science, an economic analysis and the good of public health.”  ♦



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