Systems Failing to Protect Public Health and Safety and the Environment

(1) If one or more of the following conditions exist as documented by inspection by an approved System Inspector, or determined by the local Approving Authority or the Department, the system is failing to protect public health and safety and the environment and shall be upgraded in accordance with the timeframes of 310 CMR 15.305(1) and the standards of 310 CMR 15.404 and 15.405: (a) Conditions applicable to all systems: 1. there is backup of sewage into the facility served by the system or any component of the system as a result of an overloaded and/or clogged soil absorption system or cesspool; 2. there is a discharge of effluent directly or indirectly to the surface of the ground through ponding, surface breakout or damp soils above the disposal area or to a surface water of the Commonwealth; 3. the static liquid level in the distribution box is above the level of the outlet invert; 4. the liquid depth in a cesspool is less than six inches from the inlet pipe invert or the remaining available volume within a cesspool above the liquid depth is less than ½ of one day's design flow; 5. the septic tank or cesspool requires pumping more than four times a year; 6. the septic tank and/or the tight tank is made of metal, unless the owner or operator has provided the System Inspector with a copy of a Certificate of Compliance indicating that the tank was installed within the 20 year period prior to the date of the inspection; or the septic tank and/or the tight tank is cracked or is otherwise structurally unsound, indicating that substantial infiltration or exfiltration is occurring or is imminent; 7. a cesspool, privy or any portion of the soil absorption system extends below the high groundwater elevation; (b) Conditions applicable to cesspools and privies: 1. A cesspool or privy is located: a. within 100 feet of a surface water supply or tributary to a surface water supply; b. within a Zone I of a public well; c. within 50 feet of a private water supply well; d. less than 100 feet but 50 feet or more from a private water supply well, unless a well water analysis, conducted at a laboratory that is certified by the Department for the parameters analyzed, indicates an absence of fecal coliform bacteria, the presence of ammonia nitrogen and nitrate nitrogen is equal to or less than five ppm. The laboratory’s sampling protocols shall be followed and its chain of custody forms shall be signed and completed. If water well analysis is conducted, the System Inspector shall attach a copy of the chain of custody forms and the laboratory results to the System Inspection Form. 2. Evaluation of cesspools and privies near water resources: A cesspool or privy is failing to protect public health and safety, welfare and the environment if any portion of it is within any of the dimensional criteria below and the local Approving Authority in its professional judgment determines the system is not functioning in a manner to protect the public health and safety, welfare and the environment: a. within 50 feet of a surface water; b. within 50 feet of a bordering vegetated wetland or a salt marsh. In making a determination pursuant to 310 CMR 15.303(1)(b), the local Approving Authority shall consider: 1. the condition, design, and treatment provided by the existing system; 2. the vertical separation of the existing soil absorption system from groundwater; 3. the horizontal separation of the existing soil absorption system from the water body; 4. the soil characteristics of the site; and 5. the condition of the waterbody or wetland, including any sensitive use areas such as beaches or shellfish beds. (c) Evaluation of systems with septic tanks and soil absorption systems near drinking water supplies: If any portion of the soil absorption system is within any of the dimensional criteria listed in 310 CMR 15.303(1)(c), unless the Approving Authority in its professional judgment, with the concurrence of the public water supplier, if any, determines the system is functioning in a manner to protect the public health and safety, welfare and the environment. 1. within 100 feet of a surface water supply or tributary to a surface water supply; 2. within a Zone I of a public well; 3. within 50 feet of a private water supply well; 4. less than 100 feet but 50 feet or more from a private water supply well, unless a well water analysis, conducted at a laboratory that is certified by the Department for the parameters analyzed, indicates an absence of fecal coliform bacteria, and the presence of ammonia nitrogen and nitrate nitrogen is equal to or less than 5 ppm. The laboratory’s sampling protocols shall be followed and its chain of custody forms shall be signed and completed. If water well analysis is conducted, the System Inspector shall attach a copy of the chain of custody forms and the laboratory results to the System Inspection Form. (d) In making a determination pursuant to 310 CMR 15.303(1)(c), the Approving Authority shall consider: 1. the condition, design, and treatment provided by the existing system; 2. the vertical separation of the existing soil absorption system from groundwater; 3. the horizontal separation of the existing soil absorption system from the water body; 4. the soil characteristics of the site; and 5. the condition of the water supply, including a water supply analysis that meets the requirements of 310 CMR 15.303(1)(c) for fecal coliform bacteria and whether the presence of ammonia nitrogen and nitrate nitrogen is equal to or less than five ppm. Where available, existing data may be used for this analysis. (2) Any system shall be upgraded upon the order of the Department or the Local Approving Authority if either determines that a specific circumstance exists by which any system threatens public health, safety, welfare or the environment, causes or threatens to cause damage to property or creates a nuisance. The Local Approving Authority or the Department may require that such upgrades be completed within a shorter period of time than specified in 310 CMR 15.305. Where necessary to protect public health, safety, welfare and the environment, the Department or the Local Approving Authority may require the owner to install a recirculating sand filter or equivalent alternative technology in accordance with 310 CMR 15.202 or to obtain a groundwater discharge permit in accordance with 314 CMR 5.00: Ground Water Discharge Permit Program. (3) A cesspool serving a facility with a design flow of 2000 gpd or greater but less than 10,000 gpd is failing to protect public health, safety, welfare and the environment. The owner of such Facility is required, pursuant to 310 CMR 27.04(4) to notify the Department’s Underground Injection Control Program and the Local Approving Authority 30 days prior to upgrading the cesspool and to have completed the upgrade of the cesspool by April 5, 2005.