Groundwater Protection Model Health Regulation
Regulatory Authority – M.G.L. c.111 s.31 and s.122
May 1995
Included is a Model Groundwater Protection Board of Health (BOH) Regulation for water supply protection. Because groundwater is a source of drinking water for 251 of 351 communities in the Commonwealth of Massachusetts the state and local governments share responsibility for maintaining high quality groundwater in sufficient quantities to meet current and future need. Board of Health regulations~ which are exemplified by the model regulation are one way to protect this most important resource at the local level.
The model regulation conforms with the requirements of the Massachusetts’ Drinking Water Regulations~ 310 CMR 22.21(2)~ for source approval and with the Water Management Act and its regulatory permit program for water withdrawals~ M.G.L. c.21G and 310 CMR 36.00. In sensitive water supply recharge areas not subject to the referenced regulations~ the
DEP Division of Water Supply recommends that each city or town apply zoning or non-zoning controls to the Zone II area or Interim Wellhead Protection Area (IWPA) for all public water supply sources within the boundaries of the municipality. This model contains all the elements required for source approval by 310 CMR 22.21(2) except floordrain controls~ for which a separate model board of health regulation is available from DEP. A model wellhead zoning bylaw covering the controls required by 310 CMR 22.21(2) is also available as an alternative to this model BOH regulation.
Bylaws and health regulations must be reviewed and approved by DEP for wells pumping above 100~000 gallons per day for compliance with DEP’s Source Approval regulations or Water Management Act permits. Although these regulations and permits require zoning and non-zoning controls within the DEP approved Zone II or IWPA~ a municipality may choose to expand the protective zones beyond the Zone II.
How does a community determine when it is appropriate to adopt a Board of Health regulation rather than a zoning bylaw~ ordinance~ or a local bylaw? Certain issues affecting implementation of bylaws and regulations need to be considered by the city or town to make this decision. Consultation with legal counsel about the consequences of choosing one mechanism over another is highly recommended.
1) A board of health regulation can apply to existing and future land uses~ for the purposes of protecting public health (see M.G.L. c. 111~ s.31). A board of health regulation does not come before Town Meeting~ so it may lack broad citizen support. Penalties in the form of fines are available for enforcement of the regulation.
2) Zoning bylaws and ordinances apply to future land uses~ while current land uses in conformance with existing zoning will continue to be legal. They require a public hearing~ a 2/3 vote of all members of the City Council/Board of Selectmen~ and a 2/3 vote at Town Meeting. The approval of the Attorney General (M.G.L. c.40~ s.32) is also required. An enforcement officer may be employed to monitor and control zoning bylaw implementation.
3) Local or general bylaws do not provide for grandfathering (pre-existing uses can be regulated)~ nor do they require public hearings for adoption. However~ a majority vote at Town Meeting (unless otherwise provided by law or ordinance)~ and the approval of the Attorney General (M.G.L. c.40~ s.32) are required
Moreover~ a city or town may want to consider whether it would be more effective to use zoning or local bylaw controls for some items~ while implementing a board of health regulation for other measures. For example~ a bylaw might be appropriate to regulate the siting of new facilities that generate hazardous waste~ and a health regulation could be useful for restricting how certain materials are stored. By carefully drafling zoning and local bylaws and health regulations~ a city or town can develop a full suite of water supply protection tools. In choosing whether to enact a health bylaw~ zoning bylaw~ or general bylaw~ enforcement consequences should be considered. Local enforcement of these controls in whatever form a municipality ultimately selects is essential to effective groundwater protection. Irrespective of the decision for zoning or non-zoning controls~ a city or town should always verify that any proposed bylaws or regulations will be compatible with existing municipal ordinances~ bylaws~ and regulations.
When a health regulation is passed that applies to a part of a water protection district~ the town needs to approve a locational map~ such as a zoning or assessors map~ to establish clearly the boundaries of the resource protection area covered by the regulation. The map should be readily available~ and a copy should be sent with the regulation to the DEP~ Division of Water Supply.
For further information or questions regarding these model regulations feel free to contact DEP~ Division of Water Supply at the address at the bottom of the first page~ or by phone at 617/292-5770.
MODEL GROUNDWATER PROTECTION REGULATION
[city/town] BOARD OF HEALTH
[date of issuance]
1. This MODEL regulation has been designed to meet the requirements of the Massachusetts
Department of Environmental Protection’s Wellhead Protection “Source Approval”
Regulations, 310 CMR 22.21(2)(a)1,2,4,5,6, and 7 and 22.21(2)(b)1 ,2,3 ,4, 5, and 7 within
designated Zone II areas and the regulatory permit requirements of the Water Management
Act for new or increased water withdrawals of 100,000 gallons per day (gpd) or more, 310
CMR 36.00. Refer to 310 CMR 22.00 if your community is in the source approval process
for a new public drinking water supply.
2. The Department recommends that the BOARD OF HEALTH regulation cover the Zone
II or Interim Wellhead Protection Area for all of the (city/town)’s public water supply
wells.
3 The Department recommends that all cities/towns, not just those in the Source Approval
process, adopt and implement these regulations as a water resource protection tool.
4 The shaded text in this document identifies notations, and unshaded text is recommended
wording for the BOARD OF HEALTH regulation.
5. Language in the MODEL may be redrafied, modified, or omitted where appropriate to
clarify issues and meet the specific objectives of a city/town. Proposed regulations should be
submitted for DEP/DWS review for compliance with 310 CMR 22.21.
Section I. PURPOSE OF REGULATION
By defining a purpose for the regulation, a municipality has the opportunity to consider the
unique land use issues and problems that are of concern to a city/town. The text in this section
of the MODEL regulation corresponds with the land use prohibitions in 310 CMR 22.21(2)(a)
and (b), and as such, may be overly broad in scope relative to the problems of a municipality
enacting the controls independently of state requirements. If so, the purpose section of the
regulation should be redefined in accordance with the specific needs of a city/town.
Whereas:
ò siting of land uses that have the potential to release hazardous waste, petroleum products, or
other contaminants significantly increases the risk of contamination; and
ò poor management practices, accidental discharges, and improper maintenance of these
facilities may lead the release of pollutants; and
ò discharges of hazardous wastes, leachate, pathogens, and other pollutants have repeatedly
threatened surface and ground water quality throughout Massachusetts; and
surface and ground water resources in the City/Town of [city/town] contribute to the town’s
drinking water supplies; therefore, the City/Town of [city/town] adopts the following regulation, under its authority as
specified in Section II, as a preventative measure for the purposes of:
preserving and protecting the City/Town of [city/town]’s drinking water resources from
discharges of pollutants; and
ò minimizing the risk to public health and the environment to the City/Town due to such
discharges.
Section II. SCOPE OF AUTHORITY
The City/Town of [cittown] Board of Health adopts the following regulation pursuant to
authorization granted by M.G.L. c.111 s.31 and s.122. The regulation shall apply, as specified
herein, to all applicable facilities within the Zone Ils and/or the Interim Wellhead Protection
Areas (IWPA), (whichever is the accepted area of protection around the drinking water
resources of the city/town).
These regulations supersede all inconsistent regulations adopted by the Board of Health prior to
the effective date.
The effective date is the date of issuance on the front page.
Section III. DEFINITIONS
Terms used within the text of the document should be defined. The language in the definitions
below is suggested; a town should modify the text where appropriate.
For the purposes of this regulation, the following words and phrases shall have the following
meanings:
Commercial fertilizers: Any substance containing one or more recognized plant nutrients
which is used for its plant nutrient content and which is designed for use, or claimed by its
manufacturer to have value in promoting plant growth. Commercial fertilizers do not include
unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes, and gypsum.
Department: The Massachusetts Department of Environmental Protection.
Discharge: 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.
Hazardous Material: A product, waste or combination of substances which because of its
quantity, concentration, or physical, chemical, toxic, radioactive, or infectious characteristics
may reasonably pose a significant, actual, or potential hazard to human health, safety, welfare,
or the environment when improperly treated, stored, transported, used, disposed O{ or
otherwise managed. Hazardous materials include, without limitation, synthetic organic
chemicals, petroleum products, heavy metals, radioactive or infectious materials, and all
substances defined as “toxic” or “hazardous” under Massachusetts General Laws (M.G.L.)
Chapter 21C and 21E, using the Massachusetts Oil and Hazardous Substance List (310 CMR
40.0000). The definition may also include acids and alkalis, solvents, thinners, and pesticides.
Historical High Groundwater Table Elevation: A groundwater elevation which is determined
from monitoring wells and historical water table fluctuation data compiled by the United States
Geological Survey.
Interim Wellhead Protection Areas (IWPA): For public supply wells or wellfields that lack a
Department approved Zone II, the Department will apply an interim wellhead protection area.
This interim wellhead protection area shall be a one-half mile radius measured from the well or
wellfield for sources whose approved pumping rate is 100,000 gpd or greater. For wells that
pump less than 100,000 gpd, the IWPA radius is proportional to the well’s approved daily
volume following the IWPA Chart as referenced in Division Water Supply Policy 92-01
Landfill: A facility established (in accordance with a valid site assignment) for the purposes of
disposing solid waste into or on the land, pursuant to 310 CMR 19.006.
Non-sanitarv wastewater: Wastewater discharges from industrial and commercial facilities
containing wastes from any activity other than collection of sanitary sewage, including, but not
limited to, activities specified in the Standard Industrial Classification (SIC) Codes set forth in
310 CMR 15.004(6).
Open Dump: A facility which is operated or maintained in violation of the Resource
Conservation and Recovery Act (42 U.S.C. 4004(a)(b)), or the regulations and criteria for solid
waste disposal.
Septage: The liquid, solid, and semi-solid contents of privies, chemical toilets, cesspools,
holding tanks, or other sewage waste receptacles. Septage does not include any material which
is a hazardous waste, pursuant to 310 CMR 30.000.
Sludge: The solid, semi-solid, and liquid residue that results from a process of wastewater
treatment or drinking water treatment. Sludge does not include grit, screening, or grease and
oil which are removed at the headworks of a facility.
Treatment Works: Any and all devices, processes and properties, real or personal, used in the
collection, pumping, transmission, storage, treatment, disposal, recycling, reclamation, or reuse
of waterborne pollutants, but not including any works receiving a hazardous waste from off the
site of the works for the purpose of treatment, storage, or disposal.
Use of Toxic or Hazardous Material: The handling, generation, treatment, storage, or
management of toxic or hazardous materials.
Very Small Quantity Generator: Any public or private entity, other than residential, which
produces less than 27 gallons (100 kilograms) a month of hazardous waste or waste oil, but not
including any acutely hazardous waste as defined in 310 CMR 30.136.
Waste Oil Retention Facility: A waste oil collection facility for automobile service stations,
retail outlets, and marinas which is sheltered and has adequate protection to contain a spill,
seepage, or discharge of petroleum waste products in accordance with M.G.L. c. 21.5. 52A.
Section IV. PROHIBITIONS
A. Notwithstanding any land uses which are otherwise permitted by local, state, and/or other
federal laws, the siting of any of the following is prohibited in the Zone II or IWPA:
1. landfills,
2. open dumps,
3. sludge and septage monofils, and
4. stockpiles (disposal) of chemically treated snow and ice
that have been removed from highways and roadways outside
the Zone II.
B. Facilities for the treatment or disposal of non-sanitary wastewater are prohibited, with the
following exceptions:
1. Replacement or repair of an existing system is exempt if the existing design
capacity is not exceeded.
2. Treatment works approved and in compliance with M.G.L. c.21E and 310
CMR 40.000 designed for the treatment of contaminated ground or surface
waters.
The city/town should consider whether it is more appropriate to control hazardous waste
facilities with a zoning bylaw. Under Chapter 40A, industrial zones are permitted and industrial
facilities within an industrial zone may expand.
C. Facilities that generate, treat, store, or dispose of hazardous waste are prohibited, with the
following exceptions:
1. very small quantity generators,
2. household hazardous waste collection centers or collection events,
3. waste oil retention facilities, and
4. treatment works for the restoration of contaminated ground or surface
waters in compliance with M.G.L. c.21E and 310 CMR 40.000.
D. Removal of soil, loam, sand, gravel, or any other mineral substances within four feet of the
historical high groundwater table elevation is prohibited with the following exceptions:
1. substances which are removed and redeposited within 45 days of removal
on site to achieve a final grade greater than four feet above the historical high
water mark; and
2. excavations for the construction of building foundations or the installation
of utilities.
E. Land uses that result in impervious cover of more than 15% or 2500 feet of any lot,
whichever is greater, are prohibited; unless a system of artificial recharge of precipitation is
provided that will not result in the degradation of groundwater quality.
Section V. CONDITIONAL PROHIBITIONS
The storage of certain waste materials, chemicals, and petroleum products is prohibited except
if contained in accordance with the following requirements.
1. Storage of sludge and septage is prohibited unless storage is in compliance with
310 CMR32.00.
2. Storage of roadway de-icing chemicals (sodium chloride, chemically treated abrasives,
or other chemicals) and the storage of chemical fertilizers are both prohibited, unless the
storage is in a structure that prevents the generation and release of contaminants or
contaminated runoff.
3. Storage of animal manure is prohibited unless covered or contained in accordance with
the standards and guidelines of the US Soil Conservation Service.
Note that there are provisions in the Zoning Act which do not permit regulation of agriculture.
While this does not apply directly to a health regulation, an argument could be raised regarding
this issue in the future. It could have an effect on this regulation and on regulation No.5
below, which covers petroleum products.
4. Storage of liquid hazardous materials is prohibited unless the materials are either in a
free standing container within a building outdoors or in a free standing covered container
above ground level with spill containment capacity of 100 % of the volume stored.
The DEP recommends that the BOH regulation require containment of 110 % of the volume
stored, but 100 % will satisfy the regulations.
5. Storage of any type of liquid petroleum products is prohibited, unless any of the
following applies:
a. the products are incidental to normal household use, including outdoor
maintenance, or for the heating of a structure;
b. waste oil retention facilities;
c. emergency generators; and
d. treatment works in compliance with M.G.L. c.21E and 310 CMR 40.000
designed for the restoration of contaminated ground or surface waters.
Storage of the exempted liquid petroleum products (5 .a through S.d) must be either in a
free standing container within a building outdoors or in a free standing covered container
above ground level with spill containment capacity of 100 % of the volume stored.
The DEP recommends that the BOH regulation require containment of 110 % of the volume
stored, but 100 % will satisfy the regulations. Also, refer to the note for the storage of animal
manure (No.3 above); it is applicable to any agricultural use of liquid petroleum products.
6. Compliance with all provisions of this regulation must be accomplished in a manner
consistent with Massachusetts Plumbing, Building, and Fire Code requirements.
Section 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.
1. As of the effective date of the regulation, all new construction and/or applicable change
of use within the City/Town of [city/town] shall comply with the provisions of thisregulation.
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.
The Building Inspector should be notified once a regulation is approved by the Board of
Health.
Section VII. PENALTIES
Penalties may be used as a means to achieve compliance with the BOH regulations. Effective
1992, maximum fines for health violations increased. Under Chapter 111, Section 31 (violation
of health regulation) the maximum penalty has increased from $500 to $1000 and Section 122
(violation of nuisance regulations) the maximum penalty has increased from $100 to $1000.
Public education and training may make it unnecessary to institute a significant penalty
program. If sufficient attention is given to education and training of those affected by the
regulation and if enough lead time is provided for program implementation, it may be possible
to avoid dependency on a penalty system for compliance. Nonetheless, local enforcement is an
essential component of this regulation and it is necessary for effective groundwater protection.
Failure to comply with provisions of this regulation will result in the levy of fines of not less
than $ 200.00, but no more than $1000.00. Each day’s failure to comply with the provisions of
this regulation shall constitute a separate violation.
Section VIII. SEVERABILITY
The following is considered standard language for either a health regulation or bylaw.
Each provision of this regulation shall be construed as separate to the end that, if any provision,
or sentence, clause or phrase thereo{ shall be held invalid for any reason, the remainder of that
section and all other sections shall continue in full force and effect.