Read 310 CMR 15.302(4)—

Section 15.302 – Criteria for Inspection, 310 Mass. Reg. 15.302 | Casetext Search + Citator

Now watch and listen to Sterling Board of Health Assclown Autocrat Ann Marie Catalano–

STERLING BOARD OF HEALTH ERRONIOUS DEEP HOLE TEST ANGIOGRAM ANALOGY – YouTube

She’s up for re-election in May 2024. I’m asking for a competent, law-abiding candidate challenger so we can take her out.

J.G.

The Sterling Municipal Light Department did Sterling Board of Health dirty work by distributing the BOH’s false “deep observation hole” testing propaganda in the SMLD’s latest town-wide mailing. Former BOH member Gary Menin, fully licensed in Title V septic matters, responded in his open letter re-printed hereinbelow—

AN OPEN LETTER TO THE STERLING MUNICIPAL LIGHT DEPARTMENT

July 25, 2023

I was disappointed to find an insert in my monthly electric bill that: (1) Has nothing to do with the business of the SMLD and (2) Ironically further promulgates the misinformation (precipitated/promulgated by the BOH itself) surrounding the Sterling Board Of Health’s December 8, 2022 decision to require a Deep Observation Hole (DOH) based Soil Evaluation for all homes sales since that date.

FACT – This is the specific decision of concern:

FACT – The DOH is codified terminology of the Title 5 statute:

“Deep observation holes shall be excavated in two adjoining segments, the first ending at approximately the five-foot level to allow detailed examination by the Soil Evaluator without need for shoring, and an adjoining segment which shall extend to a minimum depth of four feet below the bottom elevation of the proposed soil absorption system but in no case less than ten feet below existing/natural grade …”

FACT – In order to perform a code compliant soil evaluation via the DOH process, excavation in accordance with the governing statute (310 CMR 15.000 per above quote) must be accomplished.   In this regard Title 5’s Form 11 (all five pages thereof) is the statutory working document that covers details the necessary observations of the DOH.  As per a preeminent MA-DEP Soil Evaluation instructor:

“(Soil Evaluators) need to completely fill out the form 11 sections A-E.”

FACT – When I forwarded all accepted/filed (though incomplete) Soil Evaluations that were available from January through June for pre-1996 home sales to the MA-DEP this was that MA-DEP Soil Evaluation instructor’s response:

  “ That (a completed Form 11) is what is required in Title 5 so they need to submit them.  I would ask for completed Form 11’s for all of these..“

Thus all those filed aforementioned “Soil Evaluations” are invalid.

FACT – With this SMLD insert the BOH is now apparently defining their own DOH.  If so they should once again revise their requirements since the previously depicted 120822 revision excerpt still stands.  

FACT – The aforementioned discussion of the specifics of what a DOH is and when it’s required notwithstanding – all that should be irrelevant – as the DOH is DEP statutorily intended ONLY for new construction. Further, for existing homes (as noted above) there are numerous other less invasive ways to determine the Seasonal High Ground Water level – and towards that end the MA-DEP indicates that the LEAST INVASIVE method should be chosen.  The DOH is the MOST invasive !  Those other methods have worked fine for decades in Sterling and in all other of the 350 Massachusetts Cities and Towns as I have not found one that requires a DOH for existing homes as a matter of course.*  Why should Sterling be singled out ?  There’s simply no data showing pre-’96 constructed homes are contaminating groundwater in Sterling as the linked letter alleges. 

*FACT –  Such onerous changes to bylaws/requirements affecting tenets that would normally be grandfathered should be offered greater public scrutiny than being  surreptitiously rushed through in an early December meeting that saw no citizen attendance and only two Board members present.  *RE:  The other 350 cities and Towns – Because of the preponderance of estuaries and embayments on Cape Cod and apparent water quality degradation thereon – Title 5 requirements for Cape Cod have been revised.  However these location specific revisions only took place after an extensive comment period for public input unlike in Sterling.

FACT – None of the Board members are either Title 5 Inspection or Soil Evaluator certified. 

FACT – A petition is currently being circulated and will continue (through the summer) towards the holding of a Special Town Meeting this fall to request that the Board rescind their ill-advised decision. To date nearly 500 signatures have been collected.  

In fairness to these many tax paying citizens and certainly SMLD customers and to the debate at hand – and to STOP the misinformation once and for all – it would appropriate for the SMLD to include in their next billing – this letter as a public service.

Regards,

Gary Menin, Sr.

MA-DEP T5 Soil Evaluator and System Inspector

MANY THANKS TO TRUTH-TELLER GARY!

J.G.

In December 2022 Sterling’s overweening, lying, and corrupt Board of Health snuck through its local regulation requiring septic system “deep observation hole” tests for pre-April 1995 septic systems, applied at the time of property transfer/sale, in outright violation to 310 CMR 15.101, 102 and 310 CMR 15.301, 302.

SEE Part V, sub-part d.: 

Click to access 2022-12-08_boh_sds_regs_attested_copy.pdf

It had NO legal authority to do so.  NO other Massachusetts municipality has adopted such a bogus, ultra vires local regulation so far as we know.

SEE  310 CMR 15.00 (Title V Regulations) effective 7 July 2023– download (mass.gov)

Indeed, 310 CMR 15.302(4) provides as follows:

“(4) Determination of High Groundwater Elevation. A deep hole observation test is not required to determine high groundwater elevation during an inspection. High groundwater elevation shall be estimated by the inspector, using best professional judgment, based on the methods described in 310 CMR 15.302(4)(a) through (c).

(a) The inspector shall review local maps and records of groundwater elevation (previous deep hole observation tests or groundwater monitoring results) on the site and nearby properties, if available.

 (b) If the system includes a cesspool, the cesspool shall be pumped during the inspection and then examined to determine whether groundwater flows into the cesspool, indicating that the cesspool is below high groundwater elevation.

 (c) If the system includes a septic tank and distribution box, the condition of these components and the surrounding soil shall be observed for indications that groundwater has infiltrated the system. Care should be taken not to destabilize the distribution box or the piping to or from the box. These minimum requirements shall not prevent the use of additional methods. The elevation of nearby water bodies, or evidence of groundwater infiltration in other subsurface structures (for example, cellars), or hand augering to determine depth may aid in determining whether the system is located in the groundwater. The methods used to determine high groundwater elevation shall be described in the inspection report. A system owner may choose to have the high groundwater elevation determined by an observation well or deep hole observation test to confirm or disprove the results obtained by the minimum requirements of 310 CMR 15.302(4), or in place of the minimum requirements”(emphasis added).

Aware of public dissatisfaction with its totally illegal and ultra vires local regulation, the corrupt Board of Health posted this dishonest and deceptive letter on the Town of Sterling’s website, 28 June 2023—

2023_boh_letter_to_public_regarding_septic_test_holes.pdf (sterling-ma.gov)

Compounding its abuse and deception, the corrupt Board of Health, presumably using taxpayer money to do so, had that letter reproduced in the Sterling Meetinghouse News July edition.

YEAH, there has been a “considerable amount of misinformation” circulated about the Board of Health’s recent regulation, ALL of it spread by the lying and corrupt Board of Health itself.

Below is reproduced the email about these matters I sent to the Sterling Town Administrator, with ccs to Board of Health employees and the Town Clerk. It is now a public record (all text is ‘justified’ to left margin for this medium. Apologies for any spacing gaps imposed by this medium):

“Mr. Caldwell,

The following septic system ground water level determination guidance is re-printed from MassDEP’s website. Scrolling all the way down you will see that “Deep Observation Hole” testing, requiring holes dug to 12 feet below grade or 6 feet below the bottom of a leaching field, is the “last resort” in determining high groundwater levels at any particular site. The other listed and approved methodologies are to be employed and exhausted first.

 Ground Water Determination

Location of the bottom of the leaching facility compared to the HIGH ground water elevation is the most common reason for the failure of systems inspected. It is also the most important reason that sewage is not adequately treated before it enters the ground water table. For these reasons it is most important that the HIGH ground water elevation be properly determined.

The phrase High ground water elevation is used throughout this section because the ground water elevation can vary significantly throughout the year, from year to year and in different types of soil.

High ground water is defined in Title 5 (310 CMR 15.00) in the definition section (15.002) as follows:

1. Inland – The elevation above which in eight out of ten consecutive years the ground water table does not rise. This elevation is commonly but not invariably reached during the months of December through April.
2. Coastal – For ground water influenced by tidal action, the average of the monthly spring high tide ground water level as recorded over the most recent consecutive 19 year period.

At the present time the most reliable method of determining the high ground water elevation is to excavate a deep test hole and have it evaluated by a certified soil evaluator. This method is probably beyond a routine system inspection and should be used only in rare cases where there is disagreement among the inspector, the homeowner and the Board of Health and then only after consultation with the homeowner and the Board of Health.

Acceptable methods of estimating high ground water elevation are as follows:

a. READ IT FROM PLANS:
If plans of the disposal system are available they should show the ground water elevation on which the plan was based. Unfortunately, many older systems have no plans available and some have plans that merely recorded the ground water elevation at the time of testing. This may or may not be the HIGH ground water elevation. Be aware of the date these tests were performed, and how that fits into the water year.

b. OBSERVATION ON SITE:
Look for infiltration into the septic tank, cesspool or distribution box…even leaching pits, galley, or chambers if appropriate. Investigate the surrounding soil by the use of hand augers to determine ground water elevation.

c. DETERMINE IT FROM LOCAL CONDITIONS:
Observe the elevation of nearby wetlands; check for ground water elevations on plans for systems located nearby; see if there is a sump pump in the building whose system you are inspecting; look for water marks on cellar walls. NEARBY is of course a subjective word. Be prepared to justify this use.

d. CHECK WITH THE LOCAL BOARD OF HEATLH:
Many towns maintain a network of ground water monitoring wells that show relative ground water elevations.

e. Check with the USDA:
The Unites States Department of Agriculture, Natural Resources Conservation Service often has maps, records and soil surveys, along with knowledgeable staff, which may be helpful in determining high ground water elevation.

f. Check FEMA MAPS:
These flood plain maps, from the Federal Emergency Management Agency can be useful. They are often available from the local Conservation Commission.

g. CHECK, PUMPING RECORDS:
If the system you are inspecting is pumped each spring it is possible this is needed due to high ground water.

h. CHECK WITH LOCAL DIGGERS:
Talk with the local water department and sewer department to learn if they have any first hand knowledge of water depths. Do the same with local excavators and installers, also, gas, telephone and electronic companies.

i. Subscribe to USGS:
Subscribe to USGS ground water records available at their website below.

j. KNOW THE CURRENT STATE OF GROUND WATER
Ground water elevations are recorded monthly by the USGS throughout New England, including over 100 wells within Massachusetts. Examination of the records from these wells shows water elevation changes varying from less than a few feet to more than seventeen feet in a given well. These records are available from: http://ma.water.usgs.gov/

Methods k through n below constitute more invasive means of determining high ground water elevation. This guidance does not suggest that these methods are required in all cases. However, in instances where methods a through h have failed to provide adequate information for determining high ground water elevation, it may be necessary to employ these methods as described below.

k. Small diameter wellpoints can be driven to monitor ground water elevation. Use appropriate adjustments to determine high ground water elevation. This method may not be suitable for all soil conditions.

l. After observing effluent water levels, pump the leaching facility and monitor to see if ground water rises to the bottom (may be more applicable to pits, chambers and galleries than trenches and fields).This approach should be taken with caution. If done during the dry season, the results do not guarantee that subsequent ground water level rise will not inundate the leaching system. Best professional judgment must be used in order to determine at what point backflow into the system is due to ground water infiltration or other factors. Also, in some soils, ground water may take some time to stabilize. In these instances proper precautions must be taken to insure that the open area around the leaching facility is properly secured to prevent injury.

The system owner may choose to have the high ground water elevation determined by the methods described in m and n below to confirm or disprove the results obtained by other methods or in place of the minimum requirements.

m. Drive an observation well with a powered auger, observe the ground water elevation and make appropriate adjustments to determine high ground water elevation. The maximum depth of the well should be twelve feet below grade at the lowest natural elevation on the site or, six feet below the bottom of the leaching facility.

n. Dig a deep observation hole (generally the last resort) and use appropriate adjustments to determine maximum high ground water elevation. The maximum depth of the hole should be twelve feet below grade at the lowest natural elevation on the site or six feet below the bottom of the leaching facility.

THE STERLING BOARD OF HEALTH’S DECEMBER 2022 “DEEP OBSERVATION HOLE” LOCAL REGULATION IS IN CONTRAVENTION OF, AND VIOLATES, MASSACHUSETTS TITLE V SEPTIC SYSTEM REGULATIONS AND MASSDEP GUIDANCE:

The Sterling Board of Health’s December 2022 local regulation requiring “Deep Observation Hole” Testing is set forth as “V. SYSTEM INSPECTION AT TIME OF TRANSFER,” sub-part “d.,” here:

 2022-12-08_boh_sds_regs_attested_copy.pdf (sterling-ma.gov) 

As you can see, that local regulation violates Massachusetts Title V and MassDEP guidance by requiring “deep observation hole” testing rather than reserving “deep observation hole” testing as the “last resort.”

THE STERLING BOARD OF HEALTH’S 25 JUNE 2023 “LETTER TO THE PUBLIC REGARDING SEPTIC TEST HOLES”:

 The Sterling Board of Health has placed this letter on the Town of Sterling website:

 2023_boh_letter_to_public_regarding_septic_test_holes.pdf (sterling-ma.gov)

As you can see, the Sterling BOH, by that letter, in blatantly dishonest fashion, misrepresented and misconstrued Massachusetts Title V groundwater level evaluation standards and requirements and MassDEP guidance, AND unilaterally derogated from its own December 2022 local regulation and Title V “Deep Observation Hole” depth requirements by reducing them markedly.

CONCLUSION:

In this matter the Sterling Board of Health has demonstrated its autocratic arbitrariness and capriciousness, its dishonesty, and its incompetence. It is now readily apparent to Sterling residents that Sterling Board of Health members don’t even know the difference between their own asses and holes in the ground.

Sincerely, 

James F. Gettens, Esq.”

LIKE A NEGLECTED, UN-PUMPED-OUT SEPTIC SYSTEM, THE STERLING BOARD OF HEALTH IS FULL OF SH*T.

IT’S TIME TO TAKE OUT THESE JACKASSES. LET’S START DURING THE 2024 MUNICIPAL ELECTIONS.

J.G.

GEE, what could possibly go wrong in the Town of Sterling when its self-serving weasel-developer Planning Board Chair, Carl Corrinne, and superfluous Town Planner, Stephen Wallace, the latter looking for ways to justify his continued feeding from the Sterling taxpayer-funded public mammary gland, announce their intentions to “overhaul” Sterling’s Protective [Zoning] By-Laws???

SEE  4-27-2023_minutes.pdf (sterling-ma.gov)

That little weasel Corrinne, in conjunction with the Packards, failed in two recent, successive Sterling Annual Town Meetings to get “Performance Zone 1,” along Route 140, re-zoned to “Commercial,” the Packards having bought up many of the parcels on both sides of Route 140 southeasterly of the Dana Hill Road intersection. They want another bite at the apple– Wallace, Corrinne, and the remainder of the Planning Board being avid pro-development cheerleading tools.

Zoom in on that mapped area and check the “layers” boxes “Conservation 1,” “Conservation 2,” and “Resource Protection Maps” — Sterling, MA (axisgis.com)

As you can see, “Performance Zone 1” is, essentially, surrounded by MassDCR watershed protection lands protecting the Stillwater River and Wachusett Reservoir Watersheds. THAT’S WHY “Performance Zone 1” was zoned the way it was MANY years ago rather than being zoned “Commercial” or “Industrial.” Obviously, the pro-development hacks populating what passes for ‘Sterling Town Government’ don’t care about such niceties. That’s why, for example, self-serving pro-development hacks Carl Corrinne, and Zoning Board of Appeals Vice-Chair Joe Curtin, the latter employed as an engineer by development-dependent Pandolf-Perkins Quarry/Sterling Concrete– E.H Perkins Construction (ehperkins.com)–spearheaded the effort, approximately three years ago, to have the North Sterling Wekepeke Aquifer Wellhead Protection Zone reduced in size– while the Town of Sterling seeks, desperately, another Town wellfield. Nice going, A$$h—s.

“Performance Zone 1” re-zoning is not the only item—by a longshot– on the pro-development hacks’ checklist, as you can see from the April 2023 Planning Board Minutes, link above. Of course, among other aims, that transparently self-serving PoS Corrinne wants ‘Special Permit’ granting authority transferred from the Zoning Board of Appeals, where it has resided for decades, to his Planning Board. OF COURSE HE DOES.

It behooves good, responsible Sterling citizens to monitor the Planning Board and the Town Planner between now and the 2024 Sterling Annual Town Meeting when, doubtless, the proposed Zoning By-Laws changes these clowns come up with will appear on the Town Meeting Warrant. You can expect the Zoning Board of Appeals to roll over. They always do. It’ll be up to 2024 Sterling Annual Town Meeting voters to show up in droves and shoot down the proposed changes.

It’s past time to take back OUR Town.

Stay tuned.

J.G.

In March 2023 I sent the following letter to bloviating Massachusetts Attorney General Andrea Campbell who, back then, was threatening to sue into submission the four (4) principled, courageous, and legally justified Massachusetts municipalities refusing to adopt so-called ‘MBTA High Density Affordable Housing Zoning Districts’ under the spurious and illegal 17 pages of ‘Guidelines’ put out by MassDHCD that ‘interpreted,’ falsely, new Mass. Gen. Laws Ch. 40A, Section 3A:

P.O. Box 1149

Sterling, MA 01564-1149

21 March 2023

Attorney General Andrea Campbell

1 Ashburton Place, 20^th Floor

Boston, MA 02108

RE:  Mass. Gen. Laws Ch. 40A, Sec. 3A

In 2022 the Massachusetts Department of Housing and Community Development (DHCD) promulgated 17 pages of completely arbitrary and capricious so called ‘Guidelines’ (see link, below) in an effort to extort the many so-called ‘MBTA Communities’ into creating ‘Multifamily affordable housing zoning districts.’ In other words, to do what DHCD wants or face the cut-off of three (3) state funding sources. The REAL villains behind all this are the gutless cretins constituting the Massachusetts Legislature. In drafting Mass. Gen. Laws Ch. 40A, Section 3A they failed to set forth any meaningful limits, standards, parameters, or definitions because they did not want to face any blowback. In true cowardly fashion they directed DHCD to ‘promulgate’ the ‘Guidelines.’

The DHCD “Guidelines Team,” in turn, vomited out the 17 pages’ worth of completely arbitrary and capricious junk. It is not inaccurate to say that that ‘Team’ pulled the ‘Guidelines’ entirely out of their asses. The so-called ‘MBTA Communities’ willing to prostitute themselves under those ‘Guidelines,’ in return for purported state funding that can be limited or zeroed-out by the very same gutless Legislature in any future budget, face dire economic, infrastructure, schooling, transportation, traffic, water, and sewer consequences from high density so-called ‘affordable housing.’

For the definition of so-called ‘MBTA communities’ see Mass. Gen. Laws Ch. 161A, Section 1 — https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter161A/Section1

Massachusetts General Laws Ch. 40A, Section 3A provides:

“Section 3A. (a)(1) An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.

(b) An MBTA community that fails to comply with this section shall not be eligible for funds from: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE of chapter 29; or (iii) the MassWorks infrastructure program established in section 63 of chapter 23A.

[ Subsection (c) effective until July 29, 2021. For text effective July 29, 2021, see below.]

(c) The department, in consultation with the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, shall promulgate guidelines to determine if an MBTA community is in compliance with this section.

[ Subsection (c) as amended by 2021, 29, Sec. 10 effective July 29, 2021. For text effective until July 29, 2021, see above.]

(c) The department of housing and community development, in consultation with the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, shall promulgate guidelines to determine if an MBTA community is in compliance with this section” (emphasis added).

Section 3A refers to “An MBTA community,” NOT “All MBTA communities.” It is clear from the language actually employed, therefore, that ONLY AN ‘MBTA community’ that has land 0.5 miles or closer to one of the relevant stations or terminals is subject to the ‘Multifamily’ districting dictates and that Sec. 3A is not “applicable” to municipalities that have no land within that specified proximity to a pertinent station or terminal.

The Department of Housing and Community Development ignored and subverted that clear language and the clear legislative intent in its so-called ‘Guidelines’ by attempting to extort ALL ‘MBTA communities’ into adopting ‘Multifamily’ zoning districts, even the cities and towns having NO land 0.5 miles or closer to any relevant station or terminal.

SEE:  https://www.mass.gov/doc/data-sources-and-methodology-document-link/download

The Town of Sterling, where I reside, is a so-called ‘MBTA community’ having NO land 0.5 miles or closer to any station or terminal referred to in Section 3A. The Town of Sterling, therefore, and other cities and towns like it, ARE NOT subject to the bogus DHCD ‘Guidelines’ referred to above.

The ONLY statutory sanction permitted against any city or town upholding its territorial integrity by refusing to implement those bogus DHCD ‘Guidelines’ is the cut-off of funds referred to in Sec. 3A(b). Your threats to impose additional sanctions constitute empty bluster.

I applaud the four (4) Massachusetts municipalities resisting your gasbag threats.

Sincerely,

James F. Gettens, Esq.

cc:

Peter Luke, Town Manager, Holden, MA

Select Board, Town of Middleborough, MA

Town Planner, Sterling, MA

Greg Vasil, CEO, Greater Boston Real Estate Board

NOTE: All letter text is ‘justified’ to left margin for this medium. Apologies for the spacing irregularities in this medium.

As you can see, I sent a cc to Sterling’s very own superfluous ‘Town Planner’ who is looking for ways to justify his continued feeding from the Sterling taxpayer-funded public mammary gland.

Previously, in response to my public records request, the Sterling Town Administrator admitted that the Town of Sterling had NEVER received ANY state funding from the sources listed in Ch. 40A, Section 3A(b).

Immediately after I mailed out that letter AG Andrea Campbell shut her yap about this issue and went silent. Moreover, the Town of Holden and the Town of Middleborough, in essence, told Campbell to ‘shove’ the ultra vires DHCD ‘Guidelines.’

SEE  Holden will seek solution to MBTA zoning law (spectrumnews1.com)

SEE  https://jgpr.net/2023/04/04/town-of-middleborough-shares-statement-regarding-towns-legal-compliance-to-mbta-communities-zoning-law/

Notwithstanding all of that, the Sterling Planning Board, Chaired by Self-Serving Weasel Developer Carl Corrinne, has decided to re-visit this discredited matter during its 22 June 2023 meeting.

SEE  Planning Board meeting | Sterling MA (sterling-ma.gov)

More intellectual dishonesty in Sterling Town Government and, perhaps, a potential future construction opportunity for Corrinne himself.  SURPRISED?

J.G.