Town of Falmouth, MA
Barnstable County
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Table of Contents
Table of Contents
[11-18-1991]

FHR-1.0 Jurisdiction.

The authority of the Falmouth Board of Health is set forth in numerous chapters of Massachusetts General Laws. Title 5, the Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, is codified in MGL C. 111, § 31, and MGL C. 21A, § 13. Other regulations contained herein shall have specific statutory authority cited within the text of the regulation.

FHR-2.0 General provisions.

The following provisions shall apply to all actions of the Falmouth Board of Health:
2.1 
Adoption of Regulations. [Reserved]
2.2 
Public Notice and Hearing. [Reserved]
2.3 
Recordkeeping.
Records of all public meetings and hearings and other actions of the Board of Health shall be maintained in the Health Department office in Town Hall.
2.4 
Enforcement.
The provisions of Title 1 of the State Environmental Code (310 CMR 11.00) shall govern the enforcement of these regulations.
2.5 
Savings.
Each section of these rules and regulations shall be construed as separate. If any section, regulation, paragraph, sentence, clause, phrase or word of these rules and regulations shall be declared invalid for any reason, the remainder of these rules and regulations shall remain in full force and effect.
2.6 
Hearings. [Reserved]
2.7 
Effective Date.
The effective date of each regulation is shown at the end of each section in [brackets].

FHR-3.0 Regulations to control toxic and hazardous materials.

Sec. 1. 
Findings. The Board of Health of the Town of Falmouth finds that:
1. 
The groundwater under lying this town is the sole source of its existing and future water supply, including drinking water;
2. 
The groundwater aquifer is integrally connected with and flows into the surface waters, lake, streams and coastal estuaries which constitute significant recreational and economic resources of the town used for bathing and other water-related recreation, and shellfishing and fishing;
3. 
Accidental spills and discharges of petroleum products and other toxic and hazardous materials have repeatedly threatened the quality of such groundwater supplies and related water resources on Cape Cod and in other Massachusetts towns, posing potential public health and safety hazard and threatening economic losses to the affected communities;
4. 
Unless preventive measures are adopted to prohibit discharge of toxic and hazardous materials and to control their storage within the town, further spills and discharges of such materials will predictably occur, and with greater frequency and degree of hazard by reason of increasing construction, commercial and industrial development, population, and vehicular traffic in the Town of Falmouth and on Cape Cod.
Sec. 2. 
Authority. The Board of Health of the Town of Falmouth adopts the following regulations under the provisions of MGL C. 111, § 31.
Sec. 3. 
Definitions.
1. 
The term, "discharge" shall mean the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying or dumping of toxic or hazardous material upon or into any land or waters in the Town of Falmouth.
The term, "discharge," as used and applied in this regulation, does not include the following:
a. 
Proper disposal of any material in a sanitary or industrial landfill that has received and maintained all necessary legal approvals for that purpose;
b. 
Application of fertilizers and pesticides in accordance with label recommendations and with regulations of the Massachusetts Pesticide Control Board.
c. 
Disposal of "sanitary sewage" to subsurface sewage disposal systems as defined and permitted by Title 5 of the Massachusetts Environmental Code.
2. 
The term, "toxic or hazardous material," means any substance or mixture of such physical, chemical or infectious characteristics as to pose a significant actual or potential hazard to water supplies, or other hazard to human health, if such substance or mixture were discharged onto land or in the waters of this town. "Toxic or hazardous materials" include, without limitation: organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalies, and include products such as pesticides, herbicides, solvents and thinners. The following activities, without limitation, are presumed to involve the use of toxic or hazardous materials, unless and except to the extent that anyone engaging in such an activity can demonstrate the contrary to the satisfaction of the Board of Health:
Airplane, boat and motor vehicle service, repair and salvage.
Motor and machinery service and assembly.
Chemical and bacteriological laboratory operation.
Painting, wood preserving and furniture stripping.
Cabinetmaking.
Dry cleaning.
Printing.
Photographic processing.
Fiberglass and plastic products fabrication.
Metal plating, finishing and polishing.
Electronic circuit assembly.
3. 
The term, "party," means any person, group of persons representing a company, organization, any corporate entity, etc., or an individual representing one's self.
4. 
The Board of Health may, consistent with this definition and by authority of MGL C. 111, § 31, issue regulations further identifying specific materials and activities involving the use of toxic or hazardous materials. Such regulations shall automatically become a part of this definition.
Sec. 4. 
Prohibitions.
1. 
The discharge of toxic or hazardous materials upon the ground or into any surface water or groundwaters within the Town of Falmouth is prohibited.
2. 
Outdoor storage of toxic or hazardous material is prohibited unless stored in accordance with all applicable requirements of Section 5 of this regulation.
Sec. 5. 
Storage controls.
1. 
Any toxic or hazardous materials shall be held on the premises in product-tight, properly-labelled containers in accordance with the Massachusetts Hazardous Management Act, MGL C. 21C; MGL C. 148; current regulations issued by the Massachusetts Department of Environmental Protection; and applicable parts of Chapter 527 CMR of Massachusetts Fire Prevention Regulations, and 310 CMR.
2. 
The Board of Health may require that containers of toxic or hazardous materials be stored on an impervious, chemical-resistant surface compatible with the material being stored,
and that provisions be made to contain the product in case of accidental spillage. Containers shall be stored in such a way as to facilitate visual inspection of each container for damage and leakage.
3. 
The aforementioned laws and regulations shall also apply to the proper removal and disposal of such toxic and hazardous materials.
4. 
The proprietor of the premises where automotive motor oil, brake or transmission fluid is sold shall post in a conspicuous place a sign no less than seventy-five (75) inches square reading as follows:
THIS STORE HAS STORAGE FACILITIES TO ACCEPT RETURN OF UP TO 2 GALLONS OF MOTOR OIL DAILY WITHOUT CHARGE WHEN ACCOMPANIED BY PROOF OF PURCHASE.
Sec. 6. 
Report of spills and leaks. Every spill, leak or other loss of toxic or hazardous materials believed to be in excess of five (5) gallons, shall be reported to the Board of Health or its agent within two (2) hours of detection.
Sec. 7. 
Enforcement.
1. 
The provisions of these regulations shall be enforced by the Board of Health and/or the Hazardous Materials Coordinator acting as its agent. Either agent may, according to law, enter upon any premises at any reasonable time to inspect for compliance.
2. 
Upon request of an agent of the Board of Health, the owner or operator of any premises at which toxic or hazardous materials are used or stored shall furnish all information required to monitor compliance with this regulation, including a complete list of all chemicals, pesticides, fuels and other toxic or hazardous materials used or stored on the premises, a description of measures taken to protect storage containers from vandalism, corrosion and spillage, and the means of disposal of all toxic or hazardous waste produced on the site. A sample of wastewater disposed to on-site septic systems, drywells, or sewage treatment system may be required by the agent of the Board of Health.
3. 
All records pertaining to storage, removal and disposal of toxic or hazardous waste shall be retained for no less than three (3) years, and shall be made available for review by the agent of the Board of Health upon request.
Sec. 8. 
Violation.
1. 
Written notice of any violation of these regulations shall be given by the agent of the Board of Health, specifying the nature of the violation; any corrective measures that must be undertaken, including containment and cleanup of discharged materials; any preventive measures required for avoiding future violations; and a time for compliance. Requirements specified in such a notice shall be reasonable in relation to the public health hazard involved and the difficulty of compliance. The cost of containment and cleanup shall be borne by the party responsible for the discharge of hazardous waste, as defined in Section 3, Definitions.
2. 
If the party at fault cannot be identified, then the cost of containment and cleanup shall be borne by the operator of the premises.
Sec. 9. 
Penalty. Penalty for failure to comply with the provisions of these regulations shall be in accordance with Chapter XVIII ENFORCEMENT of the bylaws of the Town of Falmouth.[1] Each day in which any violation exists shall be deemed to be a separate offense.
[1]
Editor's Note: See Chapter 1, General Provisions, Article I, Penalties.
Sec. 10. 
Severability. Each provision of these regulations shall be construed as separate, to the end that if any part of it shall be held invalid for any reason, the remainder shall continue in full force and effect.

FHR-4.0 Refuse regulation.

[Adopted 12-20-2010[1]]
Therefore, under the authority of MGL c. 111, § 31B, the Board of Health of the Town of Falmouth hereby adopts the following regulations:
1. 
All commercial trash haulers operating in the Town of Falmouth must be licensed by the Board of Health and must comply with all local Board of Health regulations and all the rules and regulations and subsequent amendments of the UCRTS Board of Managers.
2. 
a) 
All haulers licensed by the Board of Health in the Town of Falmouth must transport refuse loads collected in the Town of Falmouth to the UCRTS or, if the UCRTS is not in operation, to another facility approved by the Board of Health. The UCRTS shall be deemed to be in operation on any day it opens to receive refuse loads according to its regularly scheduled operating hours.
b) 
In the alternative, haulers may obtain prior written approval from the Board of Health to transport refuse loads collected in the Town of Falmouth to other facilities when the UCRTS is in operation upon the following conditions:
i) 
The hauler shall file a statement with the Board of Health identifying all other facilities to which it intends to transport refuse loads collected within the Town of Falmouth;
ii) 
The hauler shall file with the Board of Health a sworn report under the pains and penalties of perjury, according to a schedule to be determined by the Board from time to time, that identifies all refuse loads that were collected in the Town of Falmouth and transported to another facility from the date of the previous report, the weight of each refuse load, the identity of the other facility and such other information as the Board may direct from time to time;
iii) 
The hauler shall pay to the UCRTS a fee, corresponding to the rail transportation fee at the current rate per ton, for refuse collected within the Town of Falmouth that is transported to other facilities;
iv) 
The Health Agent, upon conferring with the UCRTS Board of Managers, may prepare a suitable form for the haulers to use to file the sworn report referred to above and the Health Agent is further authorized from time to time to audit and verify the truth and accuracy of any sworn report filed hereunder; and
v) 
Any sworn report filed hereunder which is reasonably believed to be false or inaccurate may be referred to the appropriate authority for investigation and/or prosecution under MGL c. 12, § 5A et seq., the False Claims Act.
3. 
This regulation shall be suspended for any period of time the UCRTS is not in operation and will terminate on December 31, 2014.
4. 
Any violation of any of these regulations may, after a hearing before the Board of Heath, result in one or more of the following penalties:
A. 
Revocation or suspension of license to transport refuse in the Town of Falmouth;
B. 
Imposition of fines as authorized by MGL c. 111, § 31B or other law; or
C. 
Other legal or equitable remedy.
5. 
Severability: In the event any section of these regulations is judged invalid in a court of law, such sections shall be severed from the remaining sections, which shall remain in full force and effect.
[1]
Editor's Note: This regulation also superseded former FHR 4.0, Refuse Regulation, adopted 6-3-1991.

FHR-5.0 Underground storage tank regulations.

[5-10-1988]
The following amendment to the regulation is promulgated to protect the ground- and surface waters from contamination with liquid toxic or hazardous materials:
Sec. 1. 
Installation of underground storage tanks (UST).
[Amended 8-28-1989]
1.1 
The United States Environmental Protection Agency has designated the Town of Falmouth as overlying a sole source aquifer. Following the effective date of this regulation, the installation of all underground fuel, gasoline or other chemical storage tanks shall conform to the following criteria:
1.2 
Secondary containment and an approved in-tank or interstitial space monitoring system shall be required for new or replacement tanks.
1.3 
In Water Resource Protection Districts as shown on the Falmouth Zoning Map and as defined in the Town Zoning Bylaws:[1]
a. 
All new underground storage tanks must be constructed of double-walled fiberglass reinforced plastic (FRP) and be equipped with a continuous interstitial monitoring system with appropriate alarms.
b. 
All piping from the UST to the interior of the premises must have a secondary containment system with an interstitial monitoring system and appropriate alarms.
c. 
All plans for UST in the Water Resource Protection District must be submitted to the Board of Health for approval prior to tank installation.
[1]
Editor's Note: See Ch. 240, Zoning.
Sec. 2. 
Tank registration. The following regulations shall apply to A) all underground tanks containing toxic or hazardous materials as defined above which are not currently regulated under 527 CMR 9.24 - Tanks and Containers, to B) all tanks containing fuel oil, whose contents are used exclusively for consumption on the premises, and to C) farm and residential tanks of one-thousand-one-hundred-gallon capacity, or less, used for storing motor fuel for noncommercial purposes.
2.1 
Owners shall file with the Board of Health, on or before July 1, 1988, the size, type, age, and location of each tank, and the type of fuel or chemical stored in them. Evidence of date of purchase and installation, including Fire Department permit, if any, shall be included along with a sketch map showing the location of such tanks on the property. Upon registering the tank with the Board of Health, the tank owner will receive a permanent metal or plastic tag, embossed with a registration number unique to that tank. This registration tag must be affixed to the fill pipe in such a location as to be visible to any distributor when filling the tank and to any inspector authorized by the town. Registration fee is five dollars ($5.).
2.2 
Effective September 15, 1988, every petroleum and other chemical distributor, when filling an underground storage tank, shall note on the invoice or bill for the product delivered, the registration number appearing on the tag affixed to the tank which was filled. Every petroleum and other chemical distributor shall notify the Board of Health of the existence and location of any unregistered or untagged tank which they are requested to fill. Such notification must be completed within two (2) working days of the time the distributor discovers that the tank registration tag is not affixed to the fill pipe.
2.3 
Prior to the sale of a property containing an underground storage tank, the Fire Department must receive notification of a change of ownership for the registration of the underground storage tank.
Sec. 3. 
Testing.
3.1 
The tank owner shall have each tank and its piping tested for tightness fifteen (15) years after installation and annually after twenty (20) years. A tank shall be tested by any final or precision test, not involving air pressure, that can accurately detect a leak of zero and five-hundredths (0.05) gallon per hour, after adjustment for relevant variables, such as temperature change and tank end deflection, or by any other testing system approved by the Board of Health, as providing equivalent safety and effectiveness. Piping shall be tested hydrostatically to one hundred fifty percent (150%) of the maximum anticipated pressure of the system. Certification of the testing shall be submitted to the Board of Health by the owner, at the owner's expense. Those tanks subject to the testing requirements of this regulation shall submit the certification of testing to the Board of Health by September 15, 1988. Tanks which are currently tested under the provisions of 527 CMR 9.18 are exempt from this section.
Sec. 4. 
Report of Leaks or Spills.
4.1 
Any person who is aware of a spill or loss of product shall report such spill or loss immediately to the head of the Fire Department.
4.2 
Service companies shall report to tank owners and the Board of Health any unaccounted for increase in petroleum or chemical consumption which may indicate a leak.
Sec. 5. 
Tank Removal.
5.1 
All fuel, gasoline or other chemical tanks not regulated under 527 CMR 9.00 [farm or residential tanks of one thousand one hundred (1,100) gallons or less and underground tanks storing fuel for consumptive use at the property] in service on the effective date of this regulation, shall be removed thirty (30) years after the date of installation. If the date of installation is unknown, it shall be assumed to be January 1, 1973. All underground storage tanks currently subject to the removal regulation [thirty (30) years or older] must be removed by December 1, 1988.
5.2 
Prior to the removal of an underground storage tank governed by this regulation, the owner shall first obtain a permit from the head of the Fire Department, pursuant to MGL C. 148.
5.3 
Any person granted a permit by the Marshall or the head of a local Fire Department to remove a tank under the provisions of MGL C. 148, or 527 CMR 9.00, shall within seventy-two (72) hours provide the permit granting authority with a receipt for delivery of said tank to the site designated on the permit.
5.4 
Before any person is granted a permit by the Marshall or the head of a local Fire Department to remove a tank under the provisions of MGL C. 148, or 527 CMR 9.00, and said tank is not being transported to an approved tank yard, the person requesting the permit shall provide the permit-granting authority with written approval from the owner/manager of the disposal site. (Reference: 502 CMR 3.00 for tank removal and disposal procedure.)
Sec. 6. 
Costs.
6.1 
In every case, the owner shall assume the responsibility for costs incurred necessary to comply with this regulation.
Sec. 7. 
Variances.
7.1 
Variances from this regulation may be granted by the Board of Health after a hearing at which the applicant establishes the following: (1) the enforcement thereof would do manifest injustice; and (2) installation or use of an underground storage tank will not adversely affect public or private water resources. In granting a variance, the Board will take into consideration the direction of the ground water flow, soil conditions, depth to ground water, size, shape and slope of the lot, and existing and known future water supplies.
Sec. 8. 
Enforcement.
8.1 
Any owner or operator who violates any provisions of this regulation shall be subject to the penalties provided under MGL C. 111, § 31, as amended. Each day during which such violation continues shall constitute a separate violation. Upon request of the head of the Fire Department or the Board of Health, the licensing authority and Town Counsel shall take any legal action as may be necessary to enforce the provisions of this regulation.

FHR-6.0 Tobacco sales to minors prohibited by Massachusetts General Laws.

[Effective 2-23-2009]
A. 
Statement of purpose: Whereas there exists conclusive evidence that tobacco smoke causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat; and whereas more than eighty percent (80%) of all smokers begin smoking before the age of eighteen (18) years [Centers for Disease Control and Prevention, "Youth Surveillance - United States 2000," 50 MMWR 1 (Nov. 2000)]; and whereas nationally in 2000, sixty-nine percent (69%) of middle school age children who smoke at least once a month were not asked to show proof of age when purchasing cigarettes (ID); and whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; and whereas despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major problem; now, therefore it is the intention of the Falmouth Board of Health to curtail the access of tobacco products by minors.
B. 
Authority: The Falmouth Board of Health pursuant to MGL c. 270, § 22, and MGL c. 111, § 31, adopts these regulations as reasonable health regulations designed to protect and improve the health of its residents. This regulation supersedes the Falmouth Board of Health regulations promulgated on September 1, 1998.
C. 
Definitions: For the purpose of these regulations, the following definitions shall apply:
BUSINESS AGENT
An individual who has been designated by the owner or operator of any establishment to be the manager or otherwise in charge of said establishment.
EMPLOYEE
Any individual who performs services for an employer.
EMPLOYER
Any individual, partnership, association, corporation, trust, private club, fraternal organization or other organized group of individuals that uses the services of one (1) or more employees.
FIRST VIOLATION
The first violation by an establishment. This would become a series of violations if an additional violation occurs within two years of a prior violation.
MINOR
Any individual who is under the age of eighteen (18).
PERMIT HOLDER
Any person engaged in the sale or distribution of tobacco products directly to consumers who applies for and receives a tobacco sales permit or any person who is required to apply for a tobacco sales permit pursuant to these regulations, or his or her business agent.
PERSON
An individual, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale or distribution of tobacco products directly to consumers.
SELF-SERVICE DISPLAY
Any display from which customers may select a tobacco product without assistance from an employee or store personnel, excluding vending machines.
TOBACCO PRODUCT
Cigarettes, cigars, chewing tobacco, pipe tobacco, snuff or tobacco in any of its forms.
VENDING MACHINE
Any automated or mechanical self-service device, which upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.
D. 
Tobacco sales to minors prohibited:
(1) 
No person shall sell tobacco products or permit tobacco products to be sold to a minor; or not being the minor's parent or legal guardian, give tobacco products to a minor.
(2) 
In conformance with and in addition to MGL c. 270, § 7, a copy of MGL c. 270, § 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Falmouth Board of Health. The notice shall be at least forty-eight (48) square inches and shall be posted conspicuously by the permit holder in the retail establishment or other place in such a manner so that it may be readily seen by a person standing at or approaching the cash register. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four (4) feet or greater than nine (9) feet from the floor.
(3) 
Identification: Each person selling or distributing tobacco products shall verify the age of the purchaser by means of government-issued photographic identification containing the bearer's date of birth that the purchaser is eighteen (18) years old or older. Verification is required for any person under the age of twenty- seven (27).
(4) 
All retail sales of tobacco must be face-to-face between the seller and the buyer.
E. 
Tobacco sales permit:
(1) 
No person shall sell or otherwise distribute tobacco at retail within Falmouth without first obtaining a tobacco sales permit issued annually by the Falmouth Board of Health.
(2) 
As part of the tobacco sales permit application process, the applicant will be provided with the Falmouth Board of Health regulation. Each applicant is required to sign a statement declaring that the applicant has read said regulation and that the applicant is responsible for instructing any and all employees who will be responsible for tobacco sales regarding both state laws regarding the sale of tobacco and this regulation.
(3) 
Each applicant is required to provide proof of a current tobacco sales license issued by the Massachusetts Department of Revenue before a tobacco sales permit can be issued.
(4) 
The fee for a tobacco sales permit shall be determined annually by the Falmouth Board of Selectmen and shall be renewed by December 31.
(5) 
A separate permit is required for each retail establishment selling tobacco.
(6) 
Each tobacco sales permit shall be displayed at the retail establishment in a conspicuous place.
(7) 
No tobacco sales permit holder shall allow any employee to sell cigarettes or other tobacco products until such employee reads this regulation and state laws regarding the sale of tobacco and signs a statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation and applicable state laws.
(8) 
A tobacco sales permit is nontransferable. A new owner of an establishment that sells tobacco must apply for a new tobacco sales permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full.
(9) 
Issuance of a tobacco sales permit shall be conditioned on an applicant's consent to unannounced, periodic inspections of his/her retail establishment to ensure compliance with this regulation.
F. 
Free distribution: No person, business, business entity, business agent, society, organization or association shall distribute, or cause to be distributed, any free samples of tobacco products.
G. 
Out-of-package sales: No person, business, business entity, business agent, society, organization or association may sell or cause to be sold or distribute or cause to be distributed, any cigarette package that contains fewer than twenty (20) cigarettes, including single cigarettes.
H. 
Self-service displays: All self-service displays of tobacco products are prohibited. All humidors including, but not limited to, walk-in humidors, must be locked.
I. 
Tobacco vending machines: All tobacco vending machines are prohibited.
J. 
Violations:
(1) 
It shall be the responsibility of the permit holder and/or his or her business agent to ensure compliance with all sections of these regulations pertaining to his or her distribution of tobacco. Violators of these regulations shall receive:
(a) 
In the case of a first violation, a fine established under state law, but in no case less than twenty-five dollars ($25.) each, for both the sales person and the holder of the license for the establishment.
(b) 
In the case of a second violation within two (2) years of a first violation, a fine established under state law, but in no case less than twenty-five dollars ($25.) for the sales person, a fine of fifty dollars ($50.) for the permit holder and the tobacco sales permit may be suspended for up to seven (7) consecutive business days.
(c) 
In the case of a third or additional violations to occur within two (2) years of a prior violation, a fine established under state law, but in no case less than twenty-five dollars ($25.) for the sales person, one hundred dollars ($100.) for the permit holder and the tobacco sales permit may be suspended for up to thirty (30) consecutive business days.
(2) 
Refusal to cooperate with inspections pursuant to these regulations may result in the suspension of the tobacco sales permit for up to thirty (30) consecutive business days.
(3) 
In addition to the monetary fines set by the state, any permit holder who engages in the sale or distribution of tobacco products directly to a consumer while his or her permit is suspended shall be subject to the suspension of all Board of Health issued permits for up to thirty (30) consecutive business days.
(4) 
The Falmouth Board of Health shall provide notice of the intent to suspend a tobacco sales permit, which notice shall contain the reasons therefor and establish a time and date for a hearing, which date shall be no earlier than seven (7) days after the date of said notice. The permit holder or its business agent shall have an opportunity to be heard at such hearing and shall be notified of the Board of Health's decision, and the reasons therefor in writing. The Falmouth Board of Health, after a hearing, may suspend the tobacco sales permit. All tobacco products shall be removed from the retail establishment upon suspension of the tobacco sales permit. Failure to remove all tobacco products shall constitute a violation of this regulation. Each day of noncompliance shall constitute a separate violation subject to a fine established under state law, but in no case less than twenty-five dollars ($25.).
(5) 
Any permit holder who does not pay the assessed fine within twenty-one (21) days from fine issuance may be subject to criminal proceedings.
K. 
Noncriminal disposition:
(1) 
Whoever violates any provision of these regulations may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D, or by filing a criminal complaint at the appropriate venue.
(2) 
Each day any violation exists shall be deemed to be a separate offense.
L. 
Enforcement:
(1) 
Enforcement of these regulations shall be by the Board of Health of Falmouth or its designated agent(s).
(2) 
Any citizen who desires to register a complaint pursuant to the regulation may do so by contacting the Board of Health of Falmouth or its designated agent(s) and the Board shall investigate.
M. 
Severability: If any provision of these regulations is declared invalid or unenforceable, the other provisions shall not be affected thereby, but shall continue in full force and effect.
N. 
Effective date: These regulations shall take effect on February 23, 2009.

FHR-7.0 Exposure to environmental tobacco smoke.

[Effective 11-2006]
7.1. 
Findings.
A. 
The 1986 Surgeon General's Report on "The Health Consequences of Involuntary Smoking" clearly documents that nonsmokers are placed at risk for developing disease as a result of exposure to environmental tobacco smoke or secondhand smoke. In 1993, the Environmental Protection Agency classified environmental tobacco smoke as a known human carcinogen. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke may be a cause of disease, including lung cancer, in nonsmokers.
B. 
Exposure to environmental tobacco smoke presents a serious and substantial public health risk. Of particular concern is the workplace environment of nonsmokers, where they may be subjected to sustained, involuntary exposure.
7.2. 
Authority. The Town of Falmouth pursuant to Massachusetts General Laws, Chapter 270, Section 22 and Chapter 111, Section 31, adopts these regulations as reasonable health regulations designed to protect and improve the health of its residents. These regulations supersede Falmouth Board of Health regulations promulgated on September 1, 1998.
7.3. 
Definitions.
COMPENSATION
Means money, gratuity, privilege, or benefit received from an employer in return for work performed or services rendered.
EMPLOYEE
Means an individual or person who performs a service for compensation for an employer at the employer's workplace, including a contract employee, temporary employee, and independent contractor who performs a service in the employer's workplace for more than a de minimis amount of time.
EMPLOYER
Means an individual, person, partnership, association, corporation, trust, organization, school, college, university or other educational institution or other legal entity, whether public, quasi-public, private, or nonprofit which uses the services of one (1) or more employees at one (1) or more workplaces, at any one (1) time, including the commonwealth or its agencies, authorities or political subdivisions.
ENCLOSED
Means a space bounded by walls, with or without windows or fenestrations, continuous from floor to ceiling and enclosed by one (1) or more doors, including but not limited to an office, function room or hallway.
FUNCTION ROOM/HALL
Means a separate, enclosed room used for public or private functions, including hotel and motel conference/meeting rooms.
MINOR
Means a person under eighteen (18) years of age.
OUTDOOR SPACE
Means an outdoor area, open to the air at all times and cannot be enclosed by a wall or side covering.
PUBLIC PLACE
Means an enclosed, indoor area that is open to and used by the general public, including but not limited to the following facilities: restaurants/food service establishments; bars/lounges; any function rooms/halls; private clubs and fraternal organizations when open to the general public; licensed child-care facilities; educational facilities, including school grounds; hospitals; clinics; nursing homes; all elevators, stairwells, halls, lobbies, and entranceways accessible to the public; common areas (not including actual sleeping quarters) of guest houses, bed-and-breakfasts, inns, hotels, and motels; public restrooms; laundromats; hair salons and barbershops; libraries; municipal buildings; museums; retail food establishments; indoor sports arenas; enclosed shopping malls; theaters; auditoriums.
PUBLIC TRANSPORTATION CONVEYANCE
Means a vehicle or vessel used in mass public transportation or in the transportation of the public including but not limited to the following: a train, passenger bus, school bus or other vehicle used to transport pupils, taxi, passenger ferry boat, water shuttle or a vehicle or vessel open to the public and operating within the boundaries of the Town of Falmouth.
SMOKING or SMOKE
Means the lighting of a cigar, cigarette, pipe or other tobacco product or possessing a lighted cigar, cigarette, pipe or other tobacco or nontobacco product designed to be combusted and inhaled.
SMOKING BAR
Means an establishment that occupies exclusively an enclosed indoor space and that primarily is engaged in the retail sale of tobacco products for consumption by customers on the premises
TOBACCO
Means cigarettes, cigars, snuff, chewing tobacco, or tobacco in any of its forms.
WORKPLACE
Means an indoor area, structure or facility or a portion thereof, at which one (1) or more employees perform a service for compensation for the employer, other enclosed spaces rented to or otherwise used by the public; and where the employer has the right or authority to exercise control over the space.
WORK SPACE or WORK SPACES
Means an enclosed area occupied by an employee during the course of his employment.
7.4. 
Workplace.
A. 
It shall be unlawful for any person to smoke in any workplace, work space or common work areas, including but not limited to, classrooms, conference and meeting rooms, offices, elevators, hallways, medical facilities, cafeterias, employee lounges, staircases, restrooms, restaurants, cafes, coffee shops, food courts or concessions, private clubs and fraternal organizations, retail tobacco stores, smoking bars, supermarkets or retail food outlets, bars, taverns, or in a place where food or drink is sold to the public and consumed on the premise as part of a business required to collect state meals tax; or in a theater, concert hall, exhibition hall, convention center, auditorium, arena, or stadium open to the public; or in a school, college, university, museum, library, health-care facility, group child-care center, school-age child-care center, family child-care center, school-age day or overnight camp building, or in or upon any public transportation conveyance or in any, bus station, transportation passenger terminal, or enclosed outdoor platform.
B. 
It shall be the responsibility of the employer to provide a smoke-free environment for all employees working in an enclosed workplace.
7.5. 
Public places. No person shall smoke in any public place or on any public transportation conveyance.
7.6. 
Exceptions. Notwithstanding any other provision of these regulations, the following areas may be exempted from the smoking restrictions of these regulations:
A. 
Private residences, except during such time when the residence is utilized as part of a business, as a group child-care center, school-age day-care center, school-age day or overnight camp, or a facility licensed by the Office of Child Care Services or as a health-care-related office or facility.
B. 
Hotel and motel rooms when rented to guests, unless designated as "nonsmoking." A designated smoking room in a hotel, motel, inn, bed-and-breakfast and lodging home shall be clearly marked as a designated smoking room on the exterior of all entrances from a public hallway and public spaces; and in the interior of the room. Instead of marking each room, an establishment may designate an entire floor of residential rooms as smoking. The floor shall be conspicuously designated as smoking at each entranceway on to the floor. Smoking shall not be allowed in the common areas of the floor, such as halls, vending areas, ice machine locations and exercise areas.
C. 
A nursing home, licensed pursuant to Section 71 of Chapter 111 and any acute care substance abuse treatment center. When under the jurisdiction of the commonwealth, these facilities may apply to the local board of health having jurisdiction over the facility for designation of part of the facility as a residence.
(1) 
All applications shall designate the residential area of the facility. The residential area shall not contain an employee workspace, such as offices, restrooms or other areas used primarily by employees.
(2) 
The entire facility may not be designated as a residence.
(3) 
The designated residential area must be for the sole use of permanent residents of the facility. No temporary or short-term resident may reside in the residential portion of the facility.
(4) 
All areas in the designated residential area in which smoking is allowed shall be conspicuously designated as smoking areas and be adequately ventilated to prevent the migration of smoke to nonsmoking areas.
(5) 
The facility shall provide suitable documentation, acceptable to the local board of health, that the facility is the permanent domicile of the residents residing in that portion of the facility, that information on the hazards of smoking and secondhand smoke have been provided to all residences and that smoking cessation aids are available to all residents who use tobacco products.
(6) 
All areas of a nursing home not designated as a residence shall comply with the smoking regulations.
(7) 
The nursing home shall make reasonable accommodations for an employee, resident or visitor who does not wish to be exposed to tobacco smoke.
(8) 
Upon compliance with this section, submission of the required documentation and satisfactory inspection, the local board of health shall certify the designated portion of the facility as a residence. The certification shall be valid for one (1) year from the date of issuance. No fewer than thirty (30) days before the expiration of the certification, the facility may apply for recertification. If the local board of health does not renew the certification before its expiration or provide notice that it has found sufficient cause to not recertify the residence portion of the nursing home as such, the certification shall be considered to continue until the time as the local board of health notifies the nursing home of its certification status.
D. 
Outdoor spaces. Smoking may be permitted in an outdoor space, provided that the outdoor space is physically separated from an enclosed space and there is no migration of smoke into the work space, in accordance with the following requirements.
(1) 
Any outdoor space that has a structure capable of being enclosed, regardless of the materials or removable nature of the walls or covers, shall be regarded as an enclosed space when the walls or covers are in place.
(2) 
The outdoor space shall be open to the air at all times. This shall mean that the space has thorough, unobstructed circulation of outside air to all parts of the outdoor space. An outdoor space shall be presumed to meet this test if:
(a) 
The space has a ceiling and at least one-half (1/2) of the total surface area of the walls and other vertical boundaries of the space permits unobstructed flow of outside air into the space; or
(b) 
The space has no ceiling and no more than two (2) walls or other vertical boundaries of the space that obstruct the flow of air into the space exceed eight (8) feet in height.
(c) 
A ceiling shall include any top or covering that is placed or may be placed over a space, or any other structure or arrangement above the space (including substantial coverage by umbrellas or awnings) that may impede the flow of air into the space, regardless of the type or nature of the materials or the partial or removable nature of the covering.
(3) 
The local board of health shall be notified in writing prior to initiating construction or renovation of an outdoor space for the purpose of permitting smoking, if such construction or renovation requires notification of the local building department or a licensing authority.
7.7. 
Variances.
A. 
Written application for a variance from these regulations may be made to the Board of Health. The Board may grant a variance in circumstances where the desired relief may be granted without nullifying or substantially detracting from the intent and purpose of these regulations.
B. 
Notice of a hearing upon an original application for a variance must be posted with a public notice of the Board of Health meeting at which it is to be considered.
7.8. 
Posting.
A. 
Every area in which smoking is prohibited by law shall have "no smoking" signs conspicuously posted so that the signs are clearly visible to all employees, customers, or visitors while in the workplace.
B. 
Additional signs may be posted in public areas such as the following: lobbies, hallways, cafeterias, kitchens, locker rooms, customer service areas, offices where the public is invited, conference rooms, lounges, waiting areas, and elevators.
C. 
Description of approved signs and templates for signage design may be obtained from the Board of Health.
D. 
It shall be the responsibility of the establishment to ensure that the appropriate signage is displayed.
7.9. 
Violations and penalties.
A. 
An individual, person, entity or organization subject to the smoking prohibitions of these regulations shall not discriminate or retaliate in any manner against a person for making a complaint of a violation of this section or furnishing information concerning a violation, to a person, entity or organization or to an enforcement authority. Notwithstanding the foregoing, a person making a complaint or furnishing information during any period of work or time of employment, shall do so only at a time that will not pose an increased threat of harm to the safety of other persons in or about such place of work or to the public
B. 
An owner, manager or other person in control of a building, vehicle or vessel who violates these regulations shall be punished by a fine established under state law, but in no case less than $25 for the first violation; $50 for a second violation; and $100 for a third or subsequent violation. Each calendar day on which a violation occurs shall be considered a separate offense. If an owner, manager or other person in control of a building, vehicle or vessel violates these regulations repeatedly, demonstrating egregious noncompliance as defined by these regulations, the local board of health may revoke or suspend the license to operate.
C. 
An individual or person who violates these regulations by smoking in a place where smoking is prohibited shall be subject to a civil penalty of $25 for each violation.
7.10. 
Severability. If any provision of these regulations is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.
7.11. 
Other applicable laws.
A. 
The Board of Health or its enforcement officer(s) shall enforce these regulations. Any violation of these regulations may be enforced and punished by the provisions of the Code of the Town of Falmouth Regulations, Administrative Legislations, General Provisions, § 1-1 et seq., noncriminal disposition.
B. 
Any citizen who desires to register a complaint of noncompliance under these regulations may do so by contacting the Health Department.
7.12. 
Effective date. These regulations are hereby amended with an effective date of November 2006.

FHR-8.0 PESTICIDES.

[5-31-1983]
1. 
Statutory authority. Under the authority of MGL c. 111, § 31, the Town of Falmouth Board of Health hereby adopts the following regulations to take effect on date of publication (May 31, 1983).
2. 
Restrictions on use. Any nondomestic and/or licensed application of pesticides, except for agricultural purposes, whose manufacturer's label restricts application where ground- or surface waters of public or private water supplies may be endangered is prohibited except as allowed by special permit.

FHR-9.0 TRAILER CAMPS.

1. 
Permit required. No land in the Town of Falmouth, whether privately owned or devoted to any public use, shall be used for trailer camps or overnight parking of inhabited trailers, or for camping in conjunction with trailers, unless the owner or lessee thereof, has first obtained a permit from the Board of Health.
2. 
Required equipment. Before any land shall be used for a trailer camp, or overnight parking of inhabited trailers, or for camping as aforesaid, such land shall first be adequately and sufficiently equipped with the following:
A. 
An incinerator or incinerators sufficient to take care of all waste material, which can and may properly be burned.
B. 
An adequate method or methods of sewerage disposal of a type approved by the Board of Health, or its agent.
C. 
All land so used, shall be adequately and properly cleared or cleaned, and shall at all times be kept free of paper, cans, litter, garbage, junk and other waste material, or debris of every kind.
3. 
Placement. In no case shall the number or placement of inhabited trailers, or any particular parcel of land, be such as to constitute crowding or congestion, and no owner or lessee of land used for trailer camps or for overnight parking of inhabited trailers or for camping as aforesaid, shall permit the placement or location of such trailers within thirty (30) feet of each other.
4. 
Violations and penalties. Any person or persons violating these regulations shall be punishable by a fine not exceeding one hundred dollars ($100.).

FHR-10.0 WELL DRILLING.

1. 
Statutory authority. Under the provision of MGL c. 111, § 31, the Board of Health has adopted the following regulation applicable to the Town of Falmouth.
2. 
Well drillers certificate. Effective July 1, 1980, anyone drilling a private well which will provide the primary source of water to a dwelling or building and such water is to be used for human consumption must file a current well drillers certificate with the Board of Health.
3. 
Permit required. Prior to drilling a private well within the Town of Falmouth for the purpose described herein, a permit must first be obtained from the Board of Health. Upon applying for the permit, the driller must submit a plot plan of the lot or area showing the exact location of where the well is to be drilled, the location of the individual sewage disposal system on the lot or area and the sewage systems on immediate abutting lots. A distance of no less than one hundred (100) feet must be maintained between the well and all subsurface sewage disposal system in the area. A private well can only be utilized to service those dwellings on a single lot or single bounded area. The use of a single well to supply water to buildings on two (2) or more lots is unauthorized. The regulations covering the authority and operation of community or noncommunity water systems are covered in the Drinking Water Regulations of Massachusetts which became effective on June 24, 1977.
4. 
Fee; variances. Cost of a permit for the drilling of a single private well shall be five dollars ($5.). No variances will be granted from these regulations.
5. 
Violations and penalties. Failure to comply with the provisions contained herein shall be punishable by a fine of no less than one hundred dollars ($100.) nor more than five hundred dollars ($500.).

FHR-11.0 CONSULTANT REVIEW.

[1-10-1992]
1. 
Hiring of outside consultants; fee. When reviewing an application for a variance to Title 5 or permit for another regulation, the Board may determine that the assistance of outside consultants is warranted due to the size, scale or complexity of a proposed project or because of a project's potential impacts. The Board may require that applicants pay a consultants fee consisting of the reasonable costs incurred by the Board for the employment of outside consultants engaged by the Board to assist in the review and analysis of an application.
2. 
Payment of fee. The fee shall be paid for each application or subsequent submittal which the Board deems necessary to have reviewed or analyzed by outside consultants.
3. 
Engagement of professionals. In hiring outside consultants, the Board may engage engineers, planners, lawyers, hydrogeologists or other appropriate professionals who can assist the Board in analyzing a project to ensure compliance with all relevant laws, bylaws and regulations.
4. 
Deposit of funds. Funds received by the Board pursuant to this Article shall be deposited with the Municipal Treasurer who shall establish a special account for this purpose. Expenditures from this special account shall be made to carry out the Board's responsibilities under state and location regulations and only in connection with the specific project or projects for which a consultant's fee has been or will be collected from the applicant.
5. 
Failure to pay fee. Failure of an applicant to pay a consultant's fee shall be grounds for denial of the variance or permit.
6. 
Payment of account excesses. At the completion of the Board's review of a project, any excess amount in the account including interest, attributable to a specific project, shall be repaid to the applicant or the applicant's successor in interest. A final report of said account shall be made available to the applicant or the applicant's successor in interest. For the purpose of this regulation, any person or entity claiming to be an applicant's successor in interest shall provide the Board with documentation establishing such succession in interest.
7. 
Appeals. Any applicant may take an administrative appeal from the selection of the outside consultant to the Board of Selectmen within fourteen (14) days of notice of the selection. The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications shall consist either of an educational degree in or related to, the field at issue or three (3) or more years of practice in the field at issue or a related field.
8. 
Time limit for action. The required time limit for action upon an application by the Board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Board of Selectmen within one (1) month following the filing of the appeal, the selection made by the Board shall stand.

FHR-12.0 FLAX POND AGREEMENT.

[4-28-1992]
1. 
Statutory authority. Under the authority of MGL c. 111, § 31, the Board of Health hereby adopts the following regulation to protect the health of the residents of the Town of Falmouth, effective immediately.
2. 
Prohibition. Within the area of Falmouth affected by the Ashumet Plume, as shown on a plan on file in the office of the Board of Health, Town Hall, Falmouth, Massachusetts, entitled "Appendix 1 - Limits of the National Guard Bureau liability in agreements signed in 1986, 1989 and 1991 and drawn on Assessors' Map Nos. 8, 9, 10, 17, 18, 20, 21 and 26 (August 1991)," plan dated September 3, 1991, sheet 1 of 1, no person shall drill a well for the purpose of obtaining water. No person shall disconnect a building or structure from the municipal water system and connect the building or structure to a well within the area of defined on the referenced plan (above) to obtain water. Wells may not be located on any portion of a lot located within the boundary of said area.

FHR-15.0 Supplements to 310 CMR 15.000: The State Environmental Code Title 5.

[November 1, 1978; December 21, 1979; April 3, 1989; April 4, 2005]
15.1 
Purpose and authority. The Falmouth Board of Health adopts these regulations in accordance with Massachusetts General Laws, Chapter 111 Section 31, Chapter 21A Section 13, and the regulations contained in 310 CMR 15.000 et seq. (as amended in 1995) to provide for the protection of the public health. The supplements to 310 CMR 15.000 et. seq. are adopted due to the unique conditions in Falmouth including among others, rapidly percolating soils, the abundance of recreational and shellfish harvesting resources, extensive fresh water and salt water wetlands, public drinking water supply wells and the occasional presence of private drinking water wells.
15.2 
Conditions that shall apply to all septic systems.
(1) 
Septic Systems on Lot Served. All septic systems and septic system components designed to dispose of sanitary wastes shall be constructed on the same lot as the structure or structures that they serve except that shared systems pursuant to 310 CMR 15.290-291 shall be allowed. No easements or right-of-way for the installation, maintenance or service of any septic system on a different lot than the lot to be served shall suspend, diminish or invalidate this regulation.
(2) 
Manhole Covers. All septic tanks, cesspools, pump chambers and leaching pit covers on existing and new individual sewage disposal systems shall be of sound and durable materials. [December 21, 1979] Cement covers shall be free of all cracks and chips and in good repair. Septic systems having covers at grade level shall be of cement or steel construction. Cement covers must be a minimum of twenty-four (24) inches in diameter and weigh at least 150 lbs. The cover shall be set flush to the ground and not tilt when stepped on. The rim of a steel manhole cover shall be firmly cemented in and the steel cover removable only with the use of some type of implement. For safety purposes, a cement cover may be used on top of a steel cover. Failure to comply with the regulation is punishable by a fine of twenty dollars ($20.). [December 21, 1979].
(3) 
Observation Ports Required on Leaching Facilities. A minimum of two (2) observation ports, enabling the inspection of effluent ponding levels, shall be installed in each leaching facility. The observation port shall have a minimum two-inch diameter and shall extend from the bottom of the leaching facility to within six (6) inches of final grade. All observation ports shall have securely sealed caps. If installed below grade, a metal object that will allow detection with a metal detector shall be placed immediately on top of the end cap. The location of all observation ports shall be noted on the septic plan and accurately indicated on an as-built illustration. Any structure, such as a gallery or chamber, having an observation port extended to within six (6) inches of surface grade may substitute for a separately installed observation port, provided that at least two (2) ports are present and are evenly spaced in the soil absorption area. All observation ports shall be labeled or otherwise marked to provide identification and prevent misuse.
(4) 
As-Built Illustrations Required. At the time of final inspection, legible illustrations shall be submitted to the Board of Health inspector that show the location of all components of a septic system. Each reference on the illustrations shall contain, at minimum, the distance from two (2) points on permanent structures for each of the following: all observation ports, the center of two (2) manholes for all tank or watertight structures, the four (4) corners of the leaching facility or the beginning and end of each trench if applicable, and the signature of the installer. As-built illustrations shall be submitted on five-inch-by-seven-inch format, and a copy of the as-built illustration shall be supplied to the homeowner.
(5) 
Engineered Plans.
a) 
The locus of the property on which a septic system is proposed shall be provided on the septic system site plan. The locus shall identify the nearest intersection and nearest three (3) streets to the locus. A separate sheet containing the locus shall not satisfy the requirement of this regulation.
b) 
An electronic copy of the approved plan, in a format specified by the Health Department, shall be submitted to the Board of Health prior to the issuance of a certificate of compliance.
15.3 
Approval of alternative onsite septic systems.
(1) 
Purpose. In certain situations alternative septic systems, when properly designed, constructed, operated, and maintained, may provide enhanced protection of the public health and the environment. Notwithstanding the sound technical basis of many alternative technologies, the Falmouth Board of Health seeks, through these regulations, to ensure that those alternative on-site septic systems installed within its jurisdiction are operated in compliance with the appropriate Commonwealth of Massachusetts approvals for these technologies. In addition by ensuring the completion of all required monitoring, the Board of Health seeks to gain information on the efficacy of such technologies and modify its approval process accordingly.
(2) 
Application Requirement.
a. 
All applications for disposal system construction permits involving the use of alternative septic system components purporting enhanced treatment shall be submitted to the Board of Health which shall hold a hearing to consider their approval. No abutter notification shall be required for this approval except as otherwise required. The Board of Health may deny the use of an alternative septic system if in its opinion the installation of said system is not in the interest of public health.
b. 
All applications for alternative septic systems shall be accompanied by a copy of the approval letter appropriate for the technology indicating the level of approval (general use, remedial use, provisional use, piloting use, or site-specific pilot approval).
c. 
All applications for piloting approval shall be accompanied by performance data from all piloting sites where the alternative system has been similarly configured.
(3) 
Requirements on Plans. All alternative septic systems shall have sampling ports appropriate for obtaining a representative sample and that are easily accessible and secured from unauthorized tampering. The design plans incorporating the use of alternative septic systems shall contain a clear illustration of all sampling ports, accompanied by an illustration and explanation for their use.
(4) 
Monitoring Requirements. The Board of Health may require monitoring of any alternative septic system that exceeds monitoring specified in the approval letter issued by the Massachusetts Department of Environmental Protection. The results of all such monitoring shall be subject to the requirements of Section 15.3(5)
(5) 
Reporting Requirements. Any person or entity that owns, operates, inspects or monitors an alternative on-site septic system or pressure dosed septic system in Falmouth shall cause the results of all monitoring and inspections to be submitted to the Barnstable County Department of Health and Environment in a format designated by that department. All reports regarding maintenance, monitoring or inspections of alternative septic systems shall be submitted within thirty (30) days of the time when the maintenance, inspection or monitoring was initiated.
(6) 
Notification With Registry of Deeds. No certificate of compliance for a septic system that incorporates an alternative septic system that has any regular inspection or service requirement under the Massachusetts Department of Environmental Protection approval letter, shall be issued until the applicant has filed with the deed for the property a notice indicating the presence of an alternative septic system and the requirement for a service contract for the life of the system.
(7) 
Requirement for Use of Shared Systems. All subdivisions subject to the requirement of denitrification by any Board or Commission in the Town of Falmouth, shall be required to construct a shared septic system as defined in 310 CMR 15.002 and shall meet a limit of twelve (12) mg/l Total Nitrogen at the point where the treatment unit discharges to the soil absorption system. Individual on-site denitrifying septic systems shall be prohibited in subdivisions subject to denitrifying requirements.
15.4 
Conditions that shall apply to pressure-dosed systems.
(1) 
General Requirements. All pressure-dosed systems shall be designed in accordance with the most recent guidelines for the design and construction of pressure-dosed systems as available through the Massachusetts Department of Environmental Protection.
(2) 
The calculations for the sizing of pumps, diameter of discharge orifices, diameter of all wastewater conveyance lines and the spacing of orifices shall be provided at the time of application for a works disposal permit. The permit application shall be considered incomplete until this information is submitted.
(3) 
The reports of inspection of all pressure-dosed systems shall be submitted to the Barnstable County Department of Health and Environment in a format designated by that Department.
15.5 
Variances.
(1) 
General Requirements. Variances may be granted only as follows: The Board of Health may vary the application of any provisions of this regulation with respect to any particular case when, in its opinion the applicant has demonstrated that (1) the enforcement thereof would do manifest injustice after considering all the relevant facts and circumstances of the individual case; and (2) a level of public health and environmental protection, that is at least equivalent to that provided under these regulations, can be achieved without strict enforcement of the provision of the regulation from which a variance is being sought.
Every request for a variance shall be made in writing and shall state the specific variance requested and the reasons therefor. All variances required shall be noted on the plan and specify which restrictive distance in 310 CMR 15.000 or Falmouth Board of Health regulations can not be met. Any variance granted by the Board of Health shall be in writing. Any denial of a variance shall also be in writing and contain a brief statement of the reasons for the denial. A copy of any variance granted shall be available to the public at all reasonable hours in the office of the Town Clerk or the Board of Health while it is in effect.
Any variance or other modification authorized to be made by these regulations may be subject to such qualification, condition, revocation, suspension or expiration as the Board of Health expresses in its grant. A variance or modification authorized to be made by these regulations may otherwise be revoked, modified or suspended, in whole or in part, only after the holder thereof has been notified in writing and has been given an opportunity to be heard in conformity with the requirements of 310 CMR 11.00 for orders and hearings.
All variances to Title 5 granted by the Board of Health shall be recorded at the Barnstable Registry of Deeds in the chain of title of the subject property. The cost of recording shall be paid by the applicant. A copy of the recorded variance shall be returned to the Health Department. Variances shall be valid for two (2) years unless a certificate of compliance for the associated construction works permit application has been obtained.
(2) 
Abutter Notification - 100 Feet. For the purpose of notifying property abutters required by an action of the Board of Health as provided by Massachusetts General Laws or a Commonwealth of Massachusetts Regulation, abutters to a property shall include all owners of property falling entirely or in part within a one-hundred-foot radius taken from any point on the property line of the subject lot. Abutters shall be identified through a certified list of abutters obtained from the Falmouth Board of Assessor's and said list shall be presented at the Board of Health hearing as evidence that the abutters have all been properly identified.
(3) 
Standard Conditions. The following conditions may be applied to variances granted from the requirements of Title 5 and these regulations. The Board of Health shall have the discretion to apply the conditions as they deem appropriate. The purpose of these conditions is to attain the same degree of environmental protection as would have been if the system conformed to Title 5. The Board may add other conditions which it deems necessary to mitigate environmental damage considering all the relevant facts and circumstances of the individual case. For any variances the Board of Health may require:
a. 
The installation of flow-restrictor devices on all faucets and shower fixtures in the house.
b. 
A retrofitting of the toilets in the house to low-volume flush toilets in addition to the placement of flow-restrictor devices on all faucets and shower fixtures in the house.
c. 
Design changes to the proposed plan which reduce the application rate of the septic effluent.
d. 
That there shall be no increase in the number of bedrooms or rooms that could be adapted for use as an additional bedroom. A bedroom is defined in DEQE [now DEP] correspondence 935- 2160, dated 22 October, 1985, which states "Bedroom" means any portion of a dwelling which is so designed as to furnish the minimum isolation necessary for use as a sleeping area and includes, but is not limited to, bedroom, den, study, sewing room, sleeping loft or enclosed porch, but does not include kitchen, bathroom, dining room, halls or unfinished cellar.
e. 
That the existing system must be pumped dry and filled with clean soil before the new system is in service, or the system removed and the resulting void filled.
f. 
That the excavation area must be adequately shored during construction so as to prevent the roadway from caving in or being undermined.
g. 
That the septic tank must be pumped at two-year intervals.
h. 
That no garbage grinder shall be allowed.
i. 
That the leaching area must be redesigned to provide a distribution line to each leaching component.
j. 
That wells near the property must be moved to meet the one-hundred-foot lateral separation.
k. 
That irrigation wells located within fifty (50) feet must be decommissioned and their use discontinued.
(4) 
Penalties
Penalty for failure to comply with any provision of this regulation shall be governed by Massachusetts General Laws, Chapter 111, Section 31. Each day's failure to comply with an order shall constitute a separate violation.
Further, the Board of Health, after notice to and after a hearing thereon, may suspend, revoke, or modify any permit issued hereunder for cause shown.
15.6 
Septic system location and construction.
Septic Systems Near Surface Waters and Wetlands
Purpose: On-site sewage disposal systems designed to meet 310 CMR, 15.00: The State Environmental Code Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage have not proven to be adequate protection from viruses, pathogens, and other contaminants of groundwater and surface water particularly in areas where there is a lack of filtration due to rapidly percolating soils. Scientists have observed virus entrainment in groundwater to distances of greater than two hundred (200) feet from where they were introduced to the subsurface through a conventional on-site sewage disposal system, and in saturated or groundwater flow, viruses can travel unattenuated in medium-to-coarse sands for distances exceeding the minimum requirements set forth in 310 CMR 15.211. Human consumption of viruses, pathogens, and other contaminants which enter shellfish resource areas, swimming areas, and/or within zones of contribution to public water supply wells can place the public at risk to disease.
1. 
Prohibition of Systems within one hundred (100) feet of Resource Areas that Serve New Construction
No septic system leaching facility serving new construction as defined in 310 CMR 15.002 shall be constructed within one hundred (100) feet of a surface water or wetlands (as defined in 310 CMR 15.002 The State Environmental Code, Title 5: Minimum Requirements for the Subsurface Disposal of Sanitary Sewage) or within one hundred (100) feet of a water body or a bordering vegetated wetland as described in 310 CMR 10.00: Wetlands Protection. Further, no system shall be located on a coastal beach, barrier beach or dune as described in 310 CMR 10.00: Wetlands Protection Act. The minimum distance of a completely sealed septic tank shall be fifty (50) feet from a surface water or wetland as defined above.
2. 
Conditions that Shall Apply to Repair of Septic Systems Within one hundred (100) feet of Surface Waters or Wetlands.
The following conditions shall be required for the repair of those septic systems proposed within one hundred (100) feet of surface waters or wetlands. These regulations proceed on the principle that localized hydraulic loading resulting from gravity fed soil absorption systems results in decreased hydraulic retention, decreased wastewater treatment and removal of pathogens. This situation compromises the public health near sensitive receptor sites such as surface waters, including wetlands. This regulation incorporates the principle that increased vertical separation between the bottom of the soil absorption system or equalized loading over the soil absorption system, afforded by pressure distribution networks, or alternative technologies may compensate for horizontal setback deficiencies. Accordingly, where the health agent has determined that all feasible means have been taken to minimize the incursions toward the resource area, the following design features shall be incorporated. Notwithstanding the incorporation of the following design features, the health agent may, at his/her discretion refer any plan to the Board of Health for a hearing when, in their opinion, the applicant has not adequately demonstrated that all feasible means have been taken to minimize excursions toward resource areas.
a) 
Where no increased design flow is proposed and where the bottom elevation of the soil absorption system (SAS) is greater than ten (10) feet from the adjusted seasonal high groundwater and where the maximum achievable horizontal separation between the SAS and a surface water or wetland is at least fifty (50) feet, but less than one hundred (100) feet, the applicant shall demonstrate that they have achieved the maximum separation between the soil absorption system and the resource area and the approval shall be subject to the conditions of FHR 15.5(3) a,d,g,h,i,j and k.
b) 
Where no increased flow is proposed and the bottom elevation of the soil absorption system (SAS) is less than ten (10) feet but at least five (5) feet from the adjusted seasonal high groundwater (but is otherwise in compliance with 310 CMR 15.202) and where the maximum achievable horizontal separation between the SAS and a surface water or wetland is at least seventy-five (75) feet but less than one hundred (100) feet the applicant shall demonstrate that they have achieved the maximum separation between the soil absorption system and the resource area and the approval shall be subject to the conditions of FHR 15.5(3) a,b,d,g,h,i,j and k.
c) 
Where no increased flow is proposed and the bottom elevation of the soil absorption system (SAS) is less than ten (10) feet but at least five (5) feet from the adjusted seasonal high groundwater (but otherwise in compliance with 310 CMR 15.202) and where the maximum achievable horizontal separation between the SAS and a surface water or wetland is at least fifty (50) feet but less than seventy-five (75) feet a pressure distribution system shall be required that conforms to guidelines issued by the Massachusetts Department of Environmental Protection. The approval shall be subject to the conditions of FHR 15.5(3) a,b,d,g,h,i,j and k.
d) 
Where no increased design flow is proposed and where the bottom elevation of the soil absorption system (SAS) is greater than ten (10) feet from the adjusted seasonal high groundwater and where the maximum achievable horizontal separation between the SAS and a surface water or wetland is less than fifty (50) feet but at least forty (40) feet, a pressure distribution system shall be required that conforms to guidelines issued by the Massachusetts Department of Environmental Protection. The approval shall be subject to the conditions of FHR 15.5(3) a,b,d,g,h,i,j and k.
e) 
Where no increased design flow is proposed and where the bottom of the soil absorption system (SAS) is less than ten (10) feet from the adjusted seasonal high groundwater (but otherwise in compliance with 310 CMR 15.202) and where the maximum achievable horizontal separation between the SAS and a surface water or wetland is less than fifty (50) feet but at least forty (40) feet, an alternative on-site septic system in conjunction, a disinfection unit having no chemical residual, and a pressure distribution system shall be required that conforms by the Massachusetts Department of Environmental Protection. The approval shall be subject to the conditions of FHR 15.5(3) a,b,d,g,h,i,j and k.
15.7 
Criteria for determining a septic system repair or replacement. To protect the public health against potential sources of contamination of the ground and surface waters in the Town of Falmouth, the Board of Health adopts the following regulation. The Board of Health may require the repair or replacement of a septic system if any of the following apply:
1) 
The results of an inspection of the septic system pursuant to 310 CMR 15.300- 310 CMR 15.304 reveal that the system is failed.
2) 
Any of the following observations is made independent of a complete inspection pursuant to 310 CMR 15.300- 310 CMR 15.3: there is evidence of sewage flow to the surface of the ground, there is structural damage to the components of the system which prevent it from functioning as required, the system was pumped more than two (2) times in a ninety-day period (excluding maintenance pumping of grease traps), there is evidence of breakout, there was sewage back-up into the house resulting from a non-functioning leaching area, the standing liquid level in the leaching facility(s) is indicated to have persisted by staining within two (2) inches of the invert pipe elevation, the system is damaged or destroyed by storm or flood.
3) 
In the case where the septic system serving a facility is located less than one hundred (100) feet from a surface water or wetland and the system is comprised of a cesspool or cesspools and where the estimated seasonal high groundwater is less than two (2) feet from the bottom elevation of any cesspool, the system shall be considered failed and shall be replaced with a system in compliance with 310 CMR 15.000 et seq. Observations of these conditions in the course of an inspection pursuant to 310 CMR 15.300 - 15.305 shall be referenced on the certification statement part of the inspection form in the words "Needs Further Evaluation by Approving Authority."
4) 
Soil absorption systems equipped with monitoring ports installed pursuant to FHR 15.2(3) shall be deemed failed if the ponding level is indicated to be eighty percent (80%) or greater in height compared to the effective designed sidewall depth in the case of trenches or greater than five (5) inches in height in the case of leaching bed designs. For purpose of this calculation, the inspector shall measure from the soil or soil-aggregate interface to the lowest invert elevation of the discharge lateral. This latter elevation may be calculated from the design plan and take into consideration the location of the observation port relative to the lowest invert elevation of the discharge lateral.