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New septic tank being installed (C) Daniel FriedmanMassachusetts Title 5 Septic Regulations

  • MASSACHUSETTS TITLE 5 - CONTENTS: Massachusetts Title 5 Septic Inspection & Testing Law & Guidelines. Septic system design and maintenance laws, codes, and regulations.
  • POST a QUESTION or READ FAQs about the Massachusetts Title 5 Septic Testing Law and Title 5 Septic Testing procedures
  • REFERENCES
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Information about Septic System Inspection and Testing as Regulated in Massachusetts.

When is a Title 5 septic system inspection required? How do I obtain a Title 5 Septic Inspection?Where can I see the forms, regulations, etc. for Title 5 Septic Inspections?

This document provides information about septic inspection and testing as regulated by law in Massachusetts. We include links to the actual provisions of the law and contact information for state authorities, as well as history and news release information for this topic. This information is provided by the author, as a public service; it has not been reviewed nor sanctioned by MA state authorities.



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State Regulations in Massachusetts Regulate Septic System Title 5 Inspection & Testing

Septic dye stains pre-existing septic breakout in the wet area of a yard downslope from th septic soak beds (C) Daniel FriedmanNew Massachusetts Septic Testing Regulations took effect 1 April, 1995, on and after which the Mass. Department of Environmental Protection, (DEP) requires that all residential property sales include septic evaluations performed by a state certified system inspector. Contact the Massachusetts State DEP for a current list of inspectors who have been certified.

The most-recent update to the Massachusetts Title 5 Septic Law took effect in 2016.

Massachusetts Title 5 Septic Law News Updates

08/06/2017 Updated links to Massachusetts Title 5 septic law, protocols, faqs, information. The most recent version of Title 5 (310 CMR 15.000) took effect on September 9, 2016. Here is a copy of THE CURRENT TITLE 5 SEPTIC LAW

01/15/2010 Updated links to Massachusetts Title 5 Septic Testing Law, Protocols, Procedures to include documents from the Massachusetts state government Title 5 site given as additional links at REFERENCES

9/16/96 Updated link to Mass. Info on the Web - see "More Information" below.

5/96 We're told that the state has made an exception for properties scheduled to be served by community sewer lines within five years.

9/20/95 Massachusetts News Reports today indicate that one out of four septic systems tested under the new law fail to meet acceptable standards of performance. Average repair costs range from $5400. to $7500. Source: NPR News.

8/2/95 Massachusetts News Reports today indicate that due to extreme costs to consumers to comply with the recent Title 5 Rules, the state is making changes to offer consumers some relief: homeowners whose old non-complying septics are shown to not be contaminating local groundwater will not be required to replace the system; some tax relief will be offered to homeowners who are required to make such replacements. Source: NPR News.

Additional Testing Required

Lenders are expected to require that all septic testing in MA conform to the new law. The new inspections exceed traditional visual inspections which are performed in many states. Because additional inspection is required, including excavation and pumping, septic inspection fees will probably reflect this new level of effort.

The inspector will have to locate wells and ground water sources on and near the property. The septic tank and distribution box will be opened and examined. Wells located within certain distances of the septic will have to be tested for bacteria and nitrates. Systems located within 50' of a well will fail to meet the requirements of the new law.

Standard Report Form

A new standard report form has been designed by the state. Contact the DEP or their website to obtain a current copy or use the links to the DEP forms at the bottom of this web page.

When are Septic System Inspections Required:

These inspections are required to be performed within nine months prior to the sale of a property; when freezing weather or other conditions restrict inspection, a six-months grace period may be allowed.

Quoting from the Mass Title5 Law:

When are on-site [septic] system inspections required?

In general:

There are exceptions and nuances to the general requirements listed here. For example, no inspection is required if the owner has signed an enforceable agreement with the Board of Health to upgrade the system, connect to a sanitary sewer, or connect to a shared system within two years.

quoting from a more detailed document:

When is a [septic system] inspection required?

In general, Title 5 requires an inspection at the time of property transfer:

Or see SEPTIC BOOKS REFERENCES CODES and for laws and regulations in various states and provinces, see SEPTIC AUTHORITIES, DESIGN REGS.

How is the Septic Absorption Field Soil Condition and Seasonal High Groundwater Determined?

The following information about forming the soil profile is excerpted from Massachusetts 310 Cmr 15.000: The State Environmental Code, Title 5 - cited below.

Massachusetts Title 5 15.102: Deep Observation Hole Test

(1) The purpose of the deep observation hole test is to determine in accordance with 310 CMR 15.103 the soil profile in the proposed disposal area, the depth of overburden above ledge, bedrock or impervious layer(s), and to determine the observed ground-water elevation at the time of testing and to gather evidence to determine the adjusted ground-water elevation.

(2) A minimum of two deep observation hole tests shall be performed in the presence of the Approving Authority at every proposed disposal area, two in the primary area and two in the reserve area.

Additional testing shall be required if, in the opinion of the Soil Evaluator or the Approving Authority, there is evidence of inconsistent soil characteristics, the presence of ledge, or additional testing is necessary to properly assess site conditions within the proposed location to ensure that it can be installed entirely on soils and slopes in conformance with the requirements of 310 CMR 15.000.

When a trench system is to be designed with the reserve area between the trenches, the Approving Authority may allow two deep hole observations if in the opinion of the Approving Authority the two deep holes adequately characterize the soils in both the primary and reserve areas.

(3) 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 unless such depth is unattainable due to bedrock or refusal or high groundwater, or where human safety may be in jeopardy.

(4) Every deep observation hole shall be located from known and recoverable reference points or benchmarks so that it may be located on the system design plan with an accuracy of one foot.

The location of the hole shall be defined as being half way between the side walls of the excavation at the point where the five foot deep segment adjoins the deeper segment.

(5) It shall be the responsibility of the owner or agent to ensure that every deep observation hole is secured to prevent accidents whenever work is not in progress.

Massachusetts Title 5 15.103: Soil Profile

(1) The Soil Evaluator shall prepare a soil log using a form approved by the Department, in accordance with the Department's most recent manual for Soil Evaluators.

(2) The following characteristics of each recognizable soil horizon or substratum in the deep observation hole testing shall be determined and recorded on the form:

(a) depth and thickness of horizon;

(b) estimated soil textural class, using the USDA/NRCS system of classification;

(c) estimated volume percentage of coarse fragments;

(d) abundance, size and contrast of redoximorphic features, if present;

(e) soil structure (soil profile pits only); and

(f) soil consistence.

(3) High ground-water elevation shall be determined by:

(a) soil color using the Munsell system, the abundance, size and contrast of redoximorphic features, if present;

(b) one or more of the following methods may be used to supplement the method in 310 CMR 15.103(3)(a) and shall be used when no redoximorphic features are present:

1. observation of actual water table during times of annual high water table;

2. the use of USGS wells for correlating comparisons in water tables during times when the water table is not at the annual high range;

3. a Department-approved method for determining inland high ground-water elevation as contained in Frimpter, M.H. “Probable High Groundwater Levels in Massachusetts,” Open File Report 80-1205, USGS or Frimpter, M.H. and G.C. Belfit, 1992, “Estimating highest ground-water levels for construction and land use planning, Cape Cod, Massachusetts,” updated, Barnstable, MA Cape Cod Commission Technical Bulletin 92­ 001”;

or

4. a Department-approved method for determining coastal high groundwater elevation which incorporates tidal fluctuation information into the use of historical high groundwater data as contained in Frimpter, M.H. and G.C. Belfit, 1992, "Estimating highest ground-water levels for construction and land use planning, Cape Cod, Massachusetts," updated, Barnstable, MA, Cape Cod Commission Technical Bulletin 92­ 001 or, if the location of the system is affected by tidal cycle typically within 300 feet of mean high water of the ocean, monitoring the high groundwater elevation over a tidal cycle during a full moon high tide.

(4) The Soil Evaluator shall indicate on the soil log whether four feet of naturally occurring pervious materials exist in all areas observed throughout the area proposed for the soil absorption system.

References & Citations

Question: what if my engineer says the Masschusetts Title 5 Inspector was Wrong?

Dan said:

No one seems to know the answer to this, if a title 5 inspector incorrectly fails a title 5 inspection and an engineer reviews the title 5 report and states why the system passed based on the test results and that the inspector added an improper and invalid additional test for high ground waters and writes and signs this on paper that the title 5 passed does the health department have to correct the report from fail to pass? - 2017/08/05

This question and our reply were posted originally at SEPTIC INSPECTION LEVELS

Reply: errors of fact should be corrected; differences of opinion may best left to stand.

Dan you ask a reasonable and important question about Title 5 inspections.

To give a credible answer we'd need to know more than is revealed in your question.

High Groundwater Elevation for a Title 5 inspection, should determined in accordance with Massachusetts 310 CMR 15.101, 15.102 and section 15.103. Those procedures are normally sufficient and clear.

I am worried about the possibility that a property owner, very understandably not wanting to have to amend or correct an unsanitary septic system, might become tempted to substitute a hired gun's paid-statement that the unsanitary system is in fact sanitary. If that is true, great. If that is not true but rather is a view produced by conflicting interests, the public stands to be harmed by an ineffective septic field that discharges contaminants into the environment, and into people's lives.

I agree that any professional, including a Title 5 inspector, can make a mistake of fact or procedure.

If/when that occurs the professional actually gains credibility by responding with a correction.

Title 5 Inspector's Public Duty

If, on the other hand, an inspector finds a condition that in her judgment as a trained, experienced, qualified professional, is unsafe or unsanitary, she must report it even if that report disappoints some other people involved.

Having gone through the training and having been certified as a Massachusetts Title 5 inspector myself, as well as having fielded complaints for a national inspection association as well as having served as an expert witness in building-related disputes, it is my OPINION that a property or septic system inspector who provides services to the public has a duty, similar to that of a licensed professional engineer, to protect the public's health and safety.

That opinion on my part is in fact supported by Massachusetts case law. In Tortorella v. Board of Health of Bourne , 39 Mass. App. Ct. 277 (1995) the

Court stated that it was a "paramount obligation [of the Board of Health] to protect the environment." This demonstrates that Title 5 is considered part of the state's environmental code as well as its public health law

Furthermore, the owner or a real estate agent can be held legally responsible for injury (including sickness) and financial loss should she impede a proper Title 5 inspection and report. Citing Case Law provided by Massachusetts: in Vanderwiel v. Jones , 1996 Mass.App.Div. 184 (1996)

"Real estate broker violated MGLA c.93A when she mistakenly believed that the house she was selling had no sewage problems and had a Title V system and negligently convinced the buyer not to have a septic system inspection."

About your Title 5 inspection, the Massachusetts Title 5 law is rather explicit about how inspections should be conducted. The report of seasonal high water level is a critical ingredient in that assessment, since if a septic absorption field, at any time, is soaked by ground water it will not be able to properly treat the sewage effluent.

A result is the discharge of effluent into the environment, potentially into nearby waterways and potentially into people's drinking water as well. There is a public health concern that is significant.

It might be possible to hire an engineer who would agree to give an opinion that the Title 5 inspector's conclusions were mistaken.

**IF** the Title 5 inspector made error(s) of fact, then it would be reasonable to ask the inspector to review those facts and to provide a corrected or amended report.

If there is more-honestly a difference of opinion between the two, with no factual basis for the engineer's view, then the inspector is obligated to report what in her best professional judgment is the actual situation at the property.

Relief for Homeowners Whose Septic System Fails Title 5

The Massachusetts Title 5 law does provide relief for homeowners whose septic system is limited in its ability to be brought fully up to Title 5 requirements.

The concept of maximum feasible compliance (MFC) is "do the best you can with what you've got." Wherever feasible, a failed system must be upgraded to full compliance with Title 5.

If this is not possible, in many instances the local Board of Health is authorized to approve a Local Upgrade Approval that brings the system as close to full compliance as possible in accordance with certain minimum criteria. (310 CMR 15.404-405). - www.mass.gov/eea/agencies/massdep/water/wastewater/title-5-general-information-frequently-asked-questions.html

That source [FAQs cited above in this article] continues with this explanation:

You generally will have to apply to the local Board of Health for a variance from Title 5 requirements. Title 5 provides a number of options for situations where a variance is required, including use of an innovative/alternative technology or a shared system.

In many cases, MassDEP also must approve a variance once it has been approved by the Board of Health.

Other Examples of Inspector's Duty to Protect Public Health & Safety

An inspector I know quite well encountered this situation when asked to inspect a structural problem in the basement of a multi-family rental property.

On opening the basement door and turning on the light switch, the switch exploded in a spray of sparks thanks to the building owner's "DIY" electrical wiring. In the basement, walking towards the area of inspection, she noticed in-passing that the flue vent connector had fallen off of the gas fired boiler, spilling potentially fatal flue gases and carbon monoxide into the building.

There were conditions that could kill or injure or sicken building occupants. They had to be reported to the building occupants and to the owner promptly. And had the owner not responded appropriately the inspector would have had no choice but to contact local building and fire officials.

Had the inspector not done so, she would have been personally, legally, and morally accountable and responsible should a loss, injury, or death occur in the building as a result of those conditions she saw.

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