DEM to air new cesspool rules in Portsmouth tonight

By John McDaid | Wednesday, 19 May 2010

The RI Department of Environmental Management is holding a public workshop on changes to their ISDS standards at the Portsmouth Town Hall tonight at 7pm, according to a posting on the DEM Web site.

Am I the only one for whom this is a surprise? Good communications plan there, folks. And, not to be paranoid, but is the DEM's sudden appearance in Portsmouth just one of those random coincidences?

If you can't make it tonight, there's a public comment period and a hearing date specified in the link above. I downloaded the Draft Rules, and it is 137 pages of strikethroughs and insertions. If you live in Island Park, you'll want to take a peek.

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Comments

Viking

Thu, 05/20/2010 - 11:50am

Two points of interest: (1) The DEM states “The DEM has complied with with requirements of RI General Laws Section 42-35-3.3 by determining that the proposed regulation will not result in a significant adverse economic impact on small business or any cite or town…” My Comment: Note that “homeowners” is not on this list of those for whom it has been determined that there will be no significant adverse economic impact.

(2) The DEM states “Property owners meeting income limits may apply for a hardship extension. Extension will expire upon property transfer or on January 1, 1018.” My Comment: I do not find in this 127 page document any indication of what these “income limits” might be. (If it's there and I missed it, please let me know). I do not have a cesspool, so this matter does not directly apply to me at all. However, in response to those who will assuredly proclaim that the DEM is forcing them out of their home, I surely would like to know more about these “income limits.”

gcrosby

Thu, 05/20/2010 - 12:38pm

Section 53.6 of the new Rule states "The Director may grant an extension for the removal and replacements in Rule 53.5.3 provided that the homeowner demonstrates undue hardship and the cesspool is not a failed system. Undue hardship is defined as having an annual income of less than or equal to eighty percent (80%) of the appropriate household size area median income determined by federal Housing & Urban Development standards for the community within which the cesspool is located."
John - As to your comment wondering about the randomness of RIDEM's sudden appearance, My feeling is that there is nothing random about it. Prior to the final public hearing in Providence, they planned one workshop for the west side and one for the east bay area. I thank them for showing the courtesy to have the east bay meeting in Portsmouth so our citizens, a disproportionately high number of those affected by the Act, did not have to travel far to attend. I agree they could have done a better job of publicizing the event, but they did say they had higher attendance here in Portsmouth than they did in N. Kingstown last week.
Also, Rule 53, Cesspool Phaseout is a small part of the entire document, pages 103-106, so do not plow through the whole thing. The section is brief, straightforward, and easy to understand. In my opinion, they have done a fine job of implementing the will of the State legislature.

John McDaid

Thu, 05/20/2010 - 12:59pm

Hi, Gary...
Thanks -- for completeness, here is the full text of those pages.
-j

OWTS Rules April 19, 2010 page 103

RULE 53. CESSPOOL PHASE-OUT [Note: This rule is entirely new. To improve readability it has not been double underlined]

53.1 General – Cesspools are not an approved method of wastewater disposal in Rhode Island, and all existing cesspools are considered to be substandard in accordance with Rule 6.7. Cesspools in Rhode Island must be removed and replaced if they meet the failure criteria in Rule 7, meet the definition of a large capacity cesspool in Rule 7, local government ordinances require removal and replacement, or if they are subject to the requirements of Rules 53.3-53.7 pursuant to R.I.G.L. § 23-19.15.

OWTS Rules April 19, 2010 p. 104

53.2 Large Capacity Cesspools- The use of large capacity cesspools is prohibited statewide in accordance with US Environmental Protection Agency “Revisions to the Underground Injection Control Regulations for Class V Injection Wells”, December 7, 1999, 40 CFR Parts 9, 144, 145 and 146. Any such large capacity cesspool shall cease to be used and shall be properly removed or abandoned in accordance with Rule 52. Any large capacity cesspool shall be properly removed or abandoned within one (1) year of discovery unless an immediate public health hazard is identified, in which case the director may require a shorter period of time.

53.3 Determining Property Owners Subject to Rule 53– The Director will notify via certified mail property owners determined to be subject to Rule 53. Property owners not notified may still be subject to this Rule if it is later determined that they own a structure served by a cesspool within two hundred (200) feet of one of the features identified in Rule 53.3.1. However, no enforcement action will be taken specifically pursuant to Rule 53 if the property owner replaces the cesspool within one (1) year of discovery by the Department that they are within two hundred (200) feet of one of the features identified in Rule 53.3.1, or by January 1, 2013, whichever is later.

53.3.1 Applicability-- Rules 53.3-53.7 apply to cesspools located:

(A) Within two hundred (200) feet of the inland edge of a coastal shoreline feature bordering a tidal water area (corresponding to the jurisdiction of the RI Coastal Resources Management Council as described in R.I.G.L. § 46-23-6(2)(iii));

(B) Within two hundred (200) feet of a public drinking water supply well; and

(C) Within two hundred (200) feet of the high water mark of a surface drinking water supply impoundment with an intake for the water supply. See Figures 13-16.

53.3.2 Property owners identified as subject to this Rule may provide substantive evidence to demonstrate to the Department that they are not subject to this Rule by the means identified in Rule 53.3.2 (A) or (B). Any of the means chosen to show that a property owner is exempt from the provisions of Rule 53 are, at the Director’s discretion, subject to review by the Department.

(A) Provide evidence that the structure is not served by a cesspool by any of the following:

(i) Submitting documentation that the structure is served by a permitted OWTS or is connected to a public wastewater treatment system;

(ii) Hiring a System Inspector to certify on a form approved by the Director that the structure is not served by a cesspool; or

(iii) Certifying that the structure is not served by a cesspool on a form approved by the Director.

(B) Provide evidence that the cesspool is not within two hundred (200) feet of one of the features identified in Rule 53.3.1 by any of the following:

(i) Hiring a qualified person to certify on a form approved by the Director that the cesspool is not within two hundred (200) feet of the feature of concern;

(ii) Certifying that the cesspool is not within two hundred (200) feet of the feature of concern on a form approved by the Director; or

OWTS Rules April 19, 2010 105

(iii) Property owners that have been identified as within two hundred (200) feet of the inland edge of a coastal shoreline feature bordering a tidal water area (corresponding to the jurisdiction of the RI Coastal Resources Management Council) may apply to the Coastal Resources Management Council for a Preliminary Determination as to whether the subject property is within CRMC jurisdiction. Property owners can then submit this information to certify on a form approved by the Director that the cesspool is not within two hundred (200) feet of the inland edge of the shoreline feature.

53.4 Cesspool Inspection– The owner of a property served by a cesspool located within one of the areas in Rule 53.3.1 shall cause an inspection to be performed on the cesspool by a System Inspector within six (6) months from the date of notification pursuant to Rule 53.3, but no later than January 1, 2012, whichever is sooner. The purpose of the inspection is to determine whether or not the cesspool is failed as defined in Rule 7. The owner may submit the results of an earlier inspection conducted within one (1) year prior to the date of notification, provided the inspection meets all the criteria in Rule 53.4. An inspection report including the information requested in Rule 53.4.1-53.4.8 shall be submitted to the Department within thirty (30) days of the inspection. Pumping the cesspool is not required. The
inspection shall be conducted as follows:

53.4.1 To the extent practical, determine how often the cesspool has been pumped out;
53.4.2 To the extent practical, determine if the cesspool has shown to contaminate a drinking water well or watercourse;
53.4.3 Inspect the cesspool cover. A cracked cover shall be replaced as soon as possible;
53.4.4 Inspect for evidence that the cesspool fails to accept or dispose of wastewater as evidenced by wastewater at the ground surface above or adjacent to the cesspool, or in the building served;
53.4.5 Determine the liquid depth in the cesspool below the inlet pipe invert;
53.4.6 Determine the cesspool’s structural integrity;
53.4.7 To the extent practical, determine if the bottom of the cesspool is below the groundwater table; and
53.4.8 Identify any overflow or other outlet pipe. Locate the terminus of any identified outlet.

53.5 Cesspool Removal and Replacement- Cesspools found to be located within the areas identified in Rule 53.3.1 shall cease to be used for wastewater disposal and shall be properly abandoned in accordance with the schedule below in Rule 53.5.1- 53.5.3. Any cesspool required to be abandoned pursuant to this Rule shall be abandoned in accordance with Rule 52 and such cesspool shall be replaced with an approved OWTS, or the building served by the cesspool shall be connected to a public wastewater system, prior to the applicable deadlines contained in this Rule.

53.5.1 Any cesspool deemed by the department or a System Inspector to be failed shall be properly abandoned within one (1) year of discovery unless an immediate public health hazard is identified, in
which case the director may require a shorter period of time.

53.5.2 Any cesspool located on a property which has a sewer stub enabling connection to a public wastewater system shall be abandoned in accordance with Rule 52 and the building served by such cesspool shall be connected to the public wastewater system prior to the one (1) year anniversary of the sale of ownership. If such owner of land is required to connect to the public wastewater system and fails to do so in the prescribed time period, then such owner of land shall be required by the local authority to pay usage fees as if such owner of land were connected to the public wastewater system.

53.5.3 Any cesspool within two hundred (200) feet of the inland edge of a coastal shoreline feature bordering a tidal water area (corresponding to the jurisdiction of the R.I. Coastal Resources Management Council), or within two hundred (200) feet of a public drinking water supply well, or within two hundred (200) feet of a surface drinking water supply impoundment with an intake for the
water supply, shall be removed or abandoned in accordance with Rule 52 by January 1, 2013, excluding those properties subject to Rule 53.5.2.

53.6 Temporary Hardship Extension- The Director may grant an extension for the removal and replacement requirements in Rule 53.5.3 provided the homeowner demonstrates undue hardship and the cesspool is not a failed system. Undue hardship is defined as having an annual income of less than or equal to eighty percent (80%) of the appropriate household size area median income determined by
federal Housing and Urban Development standards for the community within which the cesspool is located. Requests for a hardship waiver must be made within six (6) months after the inspection required by Rule 53.4 and shall be on forms provided by the Director and accompanied by all necessary financial information specified on the form. Said extension form shall be recorded in the land evidence records of the municipality where the property is located. No extension shall extend beyond January 1, 2018. Any extension granted shall expire upon transfer or sale of the land or easement upon which the cesspool is located and any such cesspool shall be replaced within six (6) months of the transfer or sale or by January 1, 2018, whichever is sooner.

53.7 Exemptions-
53.7.1 The provisions of Rule 53.3 – Rule 53.6 shall not apply to any cesspool located in an area of a community covered by a municipal onsite wastewater management ordinance that requires the risk-based phase-out of cesspools prior to January 1, 2013. The Department shall maintain a list of exempt communities. [Currently Charlestown, South Kingstown, New Shoreham]

53.7.2 The provisions of Rule 53.5.3 shall not apply to any cesspool located on a property that is properly designated in a state-approved wastewater facilities plan to be served by a public wastewater system no later than January 1, 2018 provided that:
(A) It is not a failed cesspool;
(B) The owner does not increase the design flow into the cesspool or add bedrooms to the building served by the cesspool;
(C) The municipality holds bonding authorization or some other dedicated financial surety for expansion of the public wastewater system to the area of the building served by the cesspool; and
(D) The property owner certifies, in writing, that the dwelling/building will be connected to the public wastewater system within six (6) months of receipt of the notification to connect to said system.