Wellfleet Board of Health
Minutes of Meeting of March 26, 2003
Senior Center, Long Pond Room
Present: David Breen, Chair; Betty Kimball, Lezli Rowell, Zel Levin; Emily Beebe, Health Agent, Erik Mitchell, Assistant Health Agent
David Breen convened the meeting at 7:00 p.m.
Public Meeting: Workshop Discussion of Proposed Revisions and Additions to Wellfleet Board of Health Regulations. Chair Breen explained that the Board would at the beginning of the meeting engage in workshop discussion of the language of the regulations to be presented at the public hearing to take place after this workshop discussion closed.
Section 609--Nitrogen loading requirements, proposed. The Health Agent began by noting that this section had received constructive public comment at the 2/26 hearing; she recommended that the Board postpone further discussion of the section at present.
Zel Levin favored the proposal, which seemed adequate to him.
Lezli Rowell was not in favor of the proposal, which she stated was inappropriate to Cole's Neck area, noting that without private wells, there is no Nitrogen Sensitive receptor site. She added that the area is far up-gradient in the Herring River system and is heavily vegetated - and that deep peats and extensive root systems serve well as a nutrient and contaminant sink. The area is topographically a peninsula, hydro-geologically separate from contributing drinking water supplies to the more developed south. She proposed that, at another public hearing in the future, the Central District should be considered a Nitrogen Sensitive site if the intent of the Board is to protect wells downtown that do not have secure protective radius, or consider prohibiting expansions to
septic system design flow for Central District lots which incur new variances.
David Breen stated that Cole's Neck area is unique, that the public water supply makes it a stretch to be considered nitrogen sensitive.
Betty Kimball moved to table consideration of Section 609 at the present time; Zel Levin seconded. Kimball noted that this needed to be tabled pending Town Counsel's recommendation. The motion passed, 4-0.
Proposed Preamble to Section 600. David Breen read aloud the section under consideration. The Health Agent explained that this was not a regulation but informational text, using language suggested by George Heufelder, to be inserted into the BOH regulations.
Betty Kimball agreed with the statement, which she termed broad-based.
Erik Mitchell noted that it was a valuable preamble to 600, with which judgment Zel Levin agreed.
Lezli Rowell stated that she had no problems with the text but felt that it was redundant, reading from Section 102 of the regulations in support of this contention. She added that she needed more time to read the proposal.
Chair Breen saw no huge problem with redundancy.
Health Agent Beebe pointed out that this preamble was specifically connected with Section 600, explaining why 600 is more stringent than Title 5 and noting "what it is about Wellfleet that we're trying to protect."
Rowell moved that the BOH take this proposal under advisement and put it on the next agenda; no second being received, the motion died.
Section 603: Septic inspection requirements and definitions. Health Agent Beebe explained that the proposed language for this regulation included changes taken from the minutes of the last hearing, at which Ben Zehnder wanted to insure that the BOH did not hold an older system to a current standard. This has been addressed in (4) "compliance with Title 5 when installed."
Betty Kimball noted that because the intent of continuing this regulation was to give the BOH time for revision, she was satisfied; Erik Mitchell and Zel Levin expressed themselves happy with the revised language.
Lezli Rowell suggested more specific language in (1): "vertical separation between the bottom of the leaching facility and adjusted observed groundwater meets the minimum of 4 feet for existing 1978 code systems and 5 feet for new 1995 code systems." Her comment that "density" in (2) and "distance" in (2) were repetitive was discussed, but the Board did not concur.
Section 608, Design flow calculations based on "upland," application. Chair Breen read the section aloud. Ms. Beebe stated that this section had been reworked considerably. She offered an illustration of its application: a lot of 3 acres; the property, only ¾ acre of which is not subject to tidal action, extending into the marsh. Title 5, she noted, does not break down upland and lowland, and saltwater areas will not contribute to recharging the aquifer. She concluded that the changes were significant and made it easier to use Title 5 regulation.
Betty Kimball, commenting that all comments had been considered from the 2/26 hearing, stated that she was comfortable with the reworked 608. Zel Levin was also satisfied.
Erik Mitchell suggested that the concluding words of the regulation, "tidal areas," be changed to "land subject to tidal action."
Lezli Rowell expressed herself not satisfied with the regulation; reacting to the comment on recharge models, she felt that this could be taken to "ridiculous extremes" so that all properties in tidal areas be restricted from any development if recharge is believe to originate on-lot, and all properties toward peak groundwater elevations alleviated of any restrictions on this basis. She added that the 10,000 ft2 / BR standard should be viewed as the workable average between upgradient and downgradient conditions, as recharge is to the aquifer in general and not the lot specific. She does not favor the regulation.
Chair Breen recalled that at the 2/26 hearing there had been talk of getting scientists such as Tom Cammerari from the Cape Cod Commission to review this item; Ms. Beebe replied that Cammerari had reviewed it and found it sensible, that Brian Dudley had been comfortable with it, that Counsel had reviewed it and found no problem with the text, and that George Heufelder had suggested a language change: from "for the purpose of calculating design flow" to "in order to calculate nitrogen loading limitations."
Betty Kimball moved approval of the language of Regulation 608 with the amendments of "land subject to tidal action" and "in order to calculate nitrogen loading limitations." Zel Levin seconded; the motion passed, 3-0-1 (Rowell).
Section 610: Standard for new construction, proposed. Health Agent Beebe read aloud the opinion from Town Counsel, who found no problem with this regulation.
Betty Kimball reviewed the motions on Section 610 from minutes of the 2/26 hearing and stated herself comfortable with this as proposed. Erik Mitchell and Zel Levin also approved.
Lezli Rowell stated her problem with 610: Title 5 is already a restrictive climate for new construction, and the BOH sees variances in engineering which don't really address health concerns. Her position was that Title 5 is effective and that the Board should not prevent small variances from coming before it.
Chair Breen stated that he leaned toward Rowell's position, feeling that the language was a little too "draconian" and that someone might be prevented from building by a regulation that has nothing to do with public health.
Rowell did not wish to create a new regulation which the Board would subsequently bend by allowing variances. She moved to table Proposed Regulation 610; Breen seconded. He asked if this was designed as a BOH regulation to control growth. The motion carried, 4-0.
Section 8000: Proposed fee schedule for BOH fees. The Health Agent presented the fee schedule, noting the further changes proposed by the Board of Selectmen: Septic Disposal Works Construction Permit, New Residential Construction - $200 (from $125) and Septic System Disposal Works Construction Permit, New Commercial Construction - $250 (from $150).
Chair Breen asked how Wellfleet fees compared to those of neighboring towns. The Health Agent turned to fee schedules from Harwich (fees based on components rather than straight permit fees); Brewster (lower than Wellfleet; does not have breakdown for commercial); Orleans (more expensive than Wellfleet); Provincetown, Eastham, Truro, and Chatham (pretty much in line with Wellfleet); and off-Cape (definitely in line with Wellfleet).
Lezli Rowell proposed changes from the fees voted by the BOS:
Varianced new residential $200 (BOS suggestion)
Nonvarianced new residential $125
Varianced new commercial $250 (BOS suggestion)
Nonvarianced new commercial $150
Zel Levin moved approval of the new wording for the fee schedule; Lezli Rowell seconded; the motion carried, 4-0.
Lezli Rowell moved a language change to the fee schedule: Housing Inspection per unit. Betty Kimball seconded; the motion carried, 4-0.
Section 705: Requirement to screen soils upon removal of an underground storage tank, proposed. Lezli Rowell read the proposed section aloud; it directs that prior to gaining a permit to remove an underground storage tank, the contractor must have the soil tested. Betty Kimball read aloud current sections 700-704, dealing with underground storage tanks; the purpose of 705 is to add another soil protection to these regulations. Health Agent Beebe noted that it makes it possible to determine if the tank is clean and, if not, to take immediate remedial action, adding that most communities require this action at the time of a tank pull.
Ms. Kimball felt that it was important to add 705 to current regulations.
Erik Mitchell suggested adding at the end "and to conduct an investigation of the extent of the contamination" and to name a qualified person to conduct this.
Lezli Rowell felt this suggestion useful; she also felt that the Board could consider the use of a "sarcophagus" or double wall around underground storage tanks. Health Agent Beebe stated that all Eastham's new storage tanks are double-walled and above ground and that Truro also requires double-walled containment. She added that this regulation does not require a public hearing and could be expanded later.
Lezli Rowell moved to take Section 705 under advisement and put it on the next agenda and, meanwhile, to see other towns' regulations for language. Betty Kimball seconded. David Breen asked the price differential between single and double walled tanks; the Health Agent replied that it was not overly expensive when compared with the expense a leak would cause. The motion passed, 4-0.
Continued Public Hearing on Proposed Board of Health Regulations. Chair Breen opened the Public Hearing at 8:15 p.m., inviting comment from the audience on the regulations which had not been tabled in the above discussion.
Section 603:
Helen Wilson discussed density of area in relationship to distance of neighboring wells.
Jeff Stewart suggested standardizing the language of the section by replacing other verbs with "shall."
Lezli Rowell moved approval of the earlier language changes for Section 603 (see workshop discussion of 603) plus approval of the changing of verbs such as "must" to "shall." Betty Kimball seconded; the motion passed, 4-0.
Section 608:
Ben Zehnder asked where the term "upland" was defined and cautioned that interpretation of this regulation would depend upon this definition. The Health Agent agreed that this definition was needed.
Zehnder also asked what wetlands should be considered. He added that he had consulted with the same experts that the Health Agent had previously mentioned and cited a document which he felt answered some of his questions (found on DEP website, under heading for Title 5, "Guidelines for Title 5 Aggregational Flows and Nitrogen Loading") and was, according to Brian Dudley, the DEP production to deal with this topic most closely.
Erik Mitchell noted that if FEMA flood zones were to be included in the regulation, the language would be much more stringent than now written.
Lezli Rowell again stated (see minutes of 2/26/03) that she felt an error had been made in enacting the original regulation, that she had made an error in proposing its approval, that zoning views such land as unbuildable, and that BOH regulation here conflicts with Zoning Board responsibilities. The Health Agent countered that no error had been made in enacting Section 608, that the Public Hearing in which it was considered had been legally advertised for two succeeding weeks, and that it was not necessary for every item covered in such a hearing to be listed in the legal ad.
Jean Schaefer stated that the Board also needed to define "land subject to tidal action." Erik Mitchell stated that it would be cross-referenced to the Wetlands Protection Act.
Helen Wilson, who felt Section 608 addressed recharge, stated that freshwater wetlands (in the proposal of the 2/26 meeting but dropped from this revision) were as important as saltwater wetlands. She added that she thought this regulation backed up, rather than took over, zoning responsibilities.
Health Agent Beebe stated that nitrogen loading was the motivating agent for this section; Lezli Rowell stated that she had seen only one example presented as illustration and had made her original decision on the matter on a whim because the example seemed convincing.
To Eleanor Hazen's question of what legal opinion had been gotten, Health Agent Beebe replied that she had received a draft letter from Town Counsel (Kopelman and Paige) without the context of conversation. The letter stated that the language of the regulations as proposed was acceptable, offered some small suggestions, and stated that when final language had been reached the Board should send the regulations back again to Counsel for opinion. In addition, Counsel saw no issue with discussing these proposed regulations in a workshop during the meeting of 3/12/03 (see minutes of 3/12), noting that with a properly posted meeting, discussion would not have run afoul of the Open Meeting Law.
Eleanor Hazen reiterated her previously expressed opinion that the Board of Health was usurping the function of the Zoning Board of Appeals.
Jeff Stewart agreed with Ben Zehnder that "upland" needed to be defined; noting that other boards use the same language, he felt that continuity of definition was needed between boards.
Helen Wilson returned to her concern that "freshwater wetlands" had been dropped from the regulation; Erik Mitchell noted that saltwater wetlands are nitrogen-limited while freshwater is limited in phosphorus.
Jay Horowitz disagreed with the idea that all Boards should use the same definition of "upland," noting as example that completely different issues are involved with the Conservation Commission and the Zoning Board.
Lezli Rowell moved to strike Section 608. Since there was no second, the motion died.
Lezli Rowell moved that the Board take up Ben Zehnder's suggestion to request scientific recommendation from an independent consultant and that application of Section 608 be suspended until the Board received advice on appropriate wording for the regulation. Zel Levin seconded.
Health Agent Beebe stated that if the Board wanted to have the language evaluated through a specific agency (e.g., George Heufelder), this would probably be acceptable. Betty Kimball agreed to a scientific evaluation of the regulation language; Erik Mitchell noted that it would be good to be clear on the intent of 608; and Lezli Rowell added that agencies with interest should be avoided and a "neutral party" should be found. She stated that this did not have to be paid for by Zehnder's clients and that she did not want it to be done through the Cape Cod Commission, either.
David Breen did not wish the Board to be puppets at the mercy of private interest.
Zehnder emphasized that he wanted someone neutral and scientific and that he had no problem with the town paying for it.
The Health Agent cautioned the Board to consider how it wanted the Health Office to administer the regulation if the regulation were to be suspended pending scientific investigation. Rowell did not think the regulation should be applied until the Board "got the science." Beebe found this problematic, stating that she would certainly receive numerous applications while the regulation was in limbo.
A vote was called on the motion; it did not carry (1 for, 3 against).
Lezli Rowell moved that the Board give the Health Agent authority to speak with the Town Administrator for the purpose of getting funds for a scientific consultant to work on the wording of Regulation 608. Breen seconded; the motion carried, 4-0.
Section 8000: Fees.
Ben Zehnder noted that he approved of the fees.
Betty Kimball moved to pass the fees as presented with amendments for New Commercial Septic Permit and New Residential Septic Permit, Varianced and Unvarianced (see above), plus the wording change of "Housing Inspection per Unit." Rowell seconded; the motion passed, 4-0.
Section 705: Screening soils.
Jeff Stewart agreed with Erik Mitchell's earlier suggestion that the regulation define who does the testing plus the extent of the testing.
Ashley Fawkes-Sylver noted that it was devastating for homeowners when underground tanks are found on property. She suggested getting the fire department involved to get equipment for testing and to keep homeowners' costs down.
Zehnder wondered if there could be a requirement that, along with septic inspections, someone investigate for underground tanks.
Fawkes-Sylver asked if it could be determined if the fire department had the knowledge to be able to determine the existence of an underground tank. She stated that these tanks are often found by a home inspection. The Health Agent added that this was usually an abandoned tank, often found by accident.
Helen Wilson stated that there were huge pollution consequences from underground tanks and suggested that the town might have some kind of fund for this problem. Zehnder added that grant money might be available.
No more questions being forthcoming from the audience, Chair Breen closed the Public Hearing at 9:20 p.m.
Minutes. The Board agreed to postpone consideration of the minutes of February 26, March 12, and March 19, 2003 until the April 9 meeting. Lezli Rowell moved that the BOH convene at 6:00 p.m. for purposes of considering minutes and discussion of BOH policy describing ATBS of Cole's Neck water supply. Betty Kimball seconded; the motion passed 4-0. At 6:30 p.m., the meeting will become joint with the Board of Selectmen acting as Water Commissioners; when the joint meeting is adjourned, the Board of Health will continue with conduct of regular business.
Licensing. The Board signed the following licenses:
Wellfleet Elementary School, Spaghetti Supper
Eric's Seafood Restaurant
Paul Buron Septic Service, Inc.
Warrant Article 39--Regional Solid Waste Facility. The Board, at the request of the BOS, considered for recommendation a petitioned article to the Town Warrant; this article prohibits the town from allowing a solid waste facility to be constructed on town-owned land.
Betty Kimball moved that the BOH reserve recommendation on Article 39 until Town Meeting; Zel Levin seconded.
Lezli Rowell stated that she supported the article but would defer to the motion made; David Breen concurred. Kimball withdrew her motion.
Betty Kimball moved to recommend Article 39; Lezli Rowell seconded.
Health Agent Beebe cautioned the Board about recommending this article, commenting that the Town should leave all options open and that the necessity for rescinding the article would involve a huge process.
After discussion, the vote was called; the motion to recommend failed, 3-1.
Zel Levin moved that the Board of Health not recommend Article 39; Betty Kimball seconded; the motion passed, 3-1 (Rowell).
Correspondence. The Health Agent distributed copies of recent correspondence:
Approval of the pump test at the Boy Scout Camp
DEP refusal to approve the variances on the Glucksman project
Water quality test results from Erik Mitchell's samplings: Library, Town Hall
Health Agent's Report. Ms. Beebe noted that the April 9 agenda would included discussion of the DEP variance denial letters and that two engineers would attend the meeting to discuss the town's options on these cases.
Lezli Rowell moved and Chair Breen seconded adjournment; the meeting closed at 9:50 p.m.
Respectfully submitted.
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Frances J. Castillo, Assistant to the Committee Secretary
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