BBP 1993 Comment Letter on Title 5 RevisionsNovember 29, 1993
Mr. Brian Donahoe, Director
Division of Water Pollution Control
Department of Environmental Protection
One Winter Street
Boston, MA 02108
re: Proposed Title 5 Regulations
Dear Mr. Donahoe:
As we stated in our 12/24/92 comment letter and despite the public comment received, the Buzzards Bay NEP (BBP) strongly supports the direction the Department of Environmental Protection is pursuing in its proposed Title 5 regulations. Upon review of the regulations it is clear that the Department has proposed a code more protective of public health and the environment. However, based on our review of the proposed regulations and in light of the public comment received, the BBP would like to offer the following comments for your consideration.
INSPECTION AND MAINTENANCE OF SYSTEMS
Clearly the proposed requirements in this section of the proposed regulations were some of the most controversial, but the Department's desire to address preexisting inadequate systems is a necessary goal if the Commonwealth is to reverse some of the environmental degradation which has already occurred. The Buzzards Bay NEP suggests the Department keep its goal of addressing preexisting inadequate systems but take a longer view for the solution. The Department should eliminate all calendar deadlines for the inspection and upgrade of these systems. Instead the trigger for upgrade should be the sale of the property or the expansion or conversion of its use. A number of communities have already adopted local regulations with these requirements.
The Department should rely on the local Boards' of Health discretion for determining what variances are necessary, but should also list certain requirements that must be met if at all possible during upgrade and if varied will require special DEP approval for example: 4 feet separation to maximum groundwater and 4 feet naturally occurring pervious material.
CONSTRUCTION IN ENVIRONMENTALLY SENSITIVE AREAS
The proposed requirements for construction in environmentally sensitive areas (ESA's) where excess nitrogen is likely to be a problem were also very controversial. It is also worth noting that the requirements as proposed were too generalized to guarantee protection of any of the identified ESA's. For these reasons the Buzzards Bay NEP suggests that DEP make this section of the regulations applicable at the discretion of the local Board of Health and following a local nomination and DEP approval process.
Currently there are some Boards of Health that are hesitant to regulate excessive nitrogen loading especially to areas other than Zone II's because they are unsure if their existing regulatory authority allows them to regulate for environmental protection like it does for public health protection. Including a section as described below would give Boards the green light to regulate ESA's for nitrogen loading should they determine it to be necessary.
How this might work is that in the regulations DEP would identify possible categories of ESA's; the four currently identified may be sufficient. DEP would state the need for special nitrogen management strategies in these areas, but also recognize that each ESA is a unique ecological system and therefore it is impossible to accurately predict the standards necessary to protect each. DEP would then identify the appropriate methodology for determining what the necessary standard is in a certain type of ESA. Peer reviewed methodologies currently exist and are described in the Buzzards Bay Comprehensive Conservation and Management Plan and the Cape Cod Commission's Technical Bulletin # 91-001. Local Boards of Health would then be responsible, should they choose, for working through the methodology to determine the necessary nitrogen loading rate and then nominating areas to DEP for this special protection. The required nitrogen loading standards would then be recognized conditions are not and should not be the sole reason for adopting a local regulation. Often the scientific and technical questions are not clear cut and there is disagreement between two informed groups about the need for a particular regulation. One example is that the Buzzards Bay NEP and the Barnstable County Health Department disagree with DEP on the likely distance of virus travel from a leaching facility. Should Boards of Health have a special concern and wish to be more conservative in their protection of public health in their community they should have the ability. The existing avenue of legal challenge will ensure that Boards of Health are held accountable for their actions and interpretations of the available scientific and technical information.
The Buzzards Bay NEP also does not support the proposed regulations regarding community systems. We are strongly opposed to the use of community systems for new construction as proposed in the regulations. The Department recognizes that Title 5 has wrongly been used by communities as a land use tool. The Department also recognizes that the land use limitations of Title 5 can not be removed immediately because communities need time to put in place other tools for proper land use management within their communities. Allowing community systems for new construction can have the same growth impacts as increasing the allowable perc rate to 60 minutes/inch or widespread use of certain innovative technologies.
If a developer is currently holding a ten acre lot with only one acceptable sight for wastewater disposal, he and the town realize that only one house is likely to be constructed. If the proposed regulation which allows community system for new construction is promulgated this developer now has the potential for a ten or twenty lot subdivision assuming zoning of either one acre or one half acre respectively. If this scenario is multiplied by dozens or even hundreds of locations in a municipality, the potential for a land use disaster exists.
The Buzzards Bay NEP recommends community systems only be permitted for repair or replacement situations where individual systems are impossible or impractical. This would give DEP time to better understand community systems and their special design, construction, operation and maintenance requirements.
We support DEP in its efforts to require certified site evaluators be used to determine if a lot is suitable for onsite disposal and where the appropriate location for disposal is located on that lot. Part of this effort is the increased use of soil morphology as a tool for the proper sighting of systems. This proposed system will significantly increase the level of expertise as well as standardize the information considered when siting systems.
The Project also encourages DEP to consider training courses for system designers and installers, especially as alternative systems become more widely used.
MAXIMUM PERC RATES AND DOSING
The BBP is also concerned that a maximum perc rate in very course soils has not been addressed in the proposed regulations. We believe that any move to limit development in areas with coarse very fast percing sand would be difficult. We also believe requiring the coarse material to be removed and replaced by less permeable material would be expensive and difficult. One possible way to address this issue would be by requiring the dosing of systems, especially in the very fast percing soils such as those with perc rates of faster than one or two minute per inch.
It is widely recognized that gravity distribution is extremely inefficient and that it results in parts of the leaching structure receiving much higher loadings and therefore providing poorer effluent treatment. Dosing of systems results in more efficient distribution and better pollutant removal, especially with respect to viruses. Dosing can alternative systems;
The BBP would like to thank DEP for its efforts to upgrade Title 5 and make it more protective of the Commonwealth's public health and environment. If you have any questions regarding these comments, or if you would like to discuss any other issues relating to onsite wastewater disposal do not hesitate to contact myself or David Janik at our office.
Joseph E. Costa, Ph.D.