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| Home > Statutes > USA Massachusetts |
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USA Statutes : massachusetts
Title : PART I. ADMINISTRATION OF THE GOVERNMENT
Chapter : TITLE XVI. PUBLIC HEALTH
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Chapter 111: Section 1. Definitions Section 1. The following words as used in this chapter, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:“Board of health” shall include the board or officer having like powers and duties in towns where there is no board of health.
“Commissioner”, the commissioner of public health.
“Council”, the public health council of the department of public health.
“Department”, the department of public health.
“Disease dangerous to the public health” shall include all diseases defined as such in accordance with section six.
“Farming” or “agriculture”, farming in all of its branches and cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any practices, including any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agricultural of farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.
“Health care provider”, any doctor of medicine, osteopathy, or dental science, or a registered nurse, social worker, doctor of chiropractic, or psychologist licensed under the provisions of chapter one hundred and twelve, or an intern, or a resident, fellow, or medical officer licensed under section nine of said chapter one hundred and twelve, or a hospital, clinic or nursing home licensed under the provisions of chapter one hundred and eleven and its agents and employees, or a public hospital and its agents and employees.
“Inland waters” shall include any and all lakes, ponds, streams, tidal waters and flats, and underground waters.
“Medical peer review committee” or “committee”, a committee of a state or local professional society of health care providers, including doctors of chiropractic, or of a medical staff of a public hospital or licensed hospital or nursing home or health maintenance organization organized under chapter one hundred and seventy-six G, provided the medical staff operates pursuant to written by-laws that have been approved by the governing board of the hospital or nursing home or health maintenance organization or a committee of physicians established pursuant to section 12 of chapter 111C for the purposes set forth in subsection (f) of section 203, which committee has as its function the evaluation or improvement of the quality of health care rendered by providers of health care services, the determination whether health care services were performed in compliance with the applicable standards of care, the determination whether the cost of health care services were performed in compliance with the applicable standards of care, determination whether the cost of the health care services rendered was considered reasonable by the providers of health services in the area, the determination of whether a health care provider’s actions call into question such health care provider’s fitness to provide health care services, or the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability or otherwise; provided, however, that for purposes of sections two hundred and three and two hundred and four, a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review committee; provided, further, that its primary purpose is the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability or otherwise.
“Nuclear reactor”, any apparatus, other than an atomic weapon, designed to sustain nuclear fission in a self-supporting chain reaction.
Chapter 111: Section 10. Repealed, 1989, 610, Sec. 2 Chapter 111: Section 100. Warrant to take houses for safe keeping of infected articles Section 100. The magistrate may, by the same warrant, require the officers, under the direction of the board, to impress and take up convenient houses or stores for the safe keeping of such articles; and the board may remove them thereto or otherwise detain them until, in its opinion, they are freed from infection.
Chapter 111: Section 101. Execution of warrant; breaking open houses Section 101. The officers, in executing the warrant, may command aid and may break open any house, shop or other place mentioned in the warrant. Whoever, being commanded by said officers to assist in the execution of the warrant, neglects or refuses so to do shall forfeit not more than ten dollars.
Chapter 111: Section 102. Payment of expenses in purifying infected articles Section 102. The expense of securing, transporting and purifying such articles as fixed by the board shall be paid by the owners or by the town, as the board may determine. For any article of furniture or wearing apparel ordered destroyed by the board the town may recompense the owner to an amount not exceeding fifty dollars.
Chapter 111: Section 103. Compensation for houses and stores impressed Section 103. If a sheriff or other officer impresses or takes up any houses, stores, lodging or other necessaries, or impresses men, the town where such persons or property are so impressed shall pay a just compensation to the persons entitled thereto. Compensation for taking or impressing property may be recovered under chapter seventy-nine.
Chapter 111: Section 104. Prevention of spread of infection; public notice; removal Section 104. If a disease dangerous to the public health exists in a town, the selectmen and board of health shall use all possible care to prevent the spread of the infection and may give public notice of infected places by such means as in their judgment may be most effectual for the common safety. Whoever obstructs the selectmen, board of health or its agent in using such means, or whoever wilfully and without authority removes, obliterates, defaces or handles such public notices which have been posted, shall forfeit not less than ten nor more than one hundred dollars.
Chapter 111: Section 105. Violation of regulations Section 105. If a physician or other person who is in any of the hospitals or places of reception mentioned in section ninety-five, or who attends, approaches or is concerned with them, violates a regulation of the board of health relative thereto, he shall forfeit not less than ten nor more than one hundred dollars.
Chapter 111: Section 106. Travelers from infected places outside commonwealth; license Section 106. The board of health of a town near to or bordering upon an adjoining state may in writing appoint suitable persons, who shall attend at places by which travelers may pass from infected places without the commonwealth, and who may examine such travelers as the board suspects of bringing any infection dangerous to the public health, and, if necessary, restrain them from traveling until licensed thereto by the board of health of the town to which they may come. A traveler coming from an infected place who, without such license, travels within the commonwealth, unless to return by the most direct way to the state whence he came, after he has been cautioned to depart by the persons so appointed, shall forfeit not more than one hundred dollars.
Chapter 111: Section 107. Transportation of infected dead bodies; rules and regulations Section 107. No person shall convey or cause to be conveyed through or from any town in the commonwealth the body of any person who has died from any disease dangerous to the public health, except in accordance with such rules and regulations as may be made from time to time by the department. No town clerk, or clerk or agent of the board of health, shall give a permit for the removal of such a body until he has received from the board of health of the town where the death occurred a certificate stating the cause of death, and that said body has been prepared so as to preclude danger of contagion or infection by its transportation. The certificate shall be delivered to the agent or person receiving the body. The department shall formulate such rules and regulations pertaining to funerals of all persons dying from any disease dangerous to the public health as it deems necessary to prevent the spread of infection. Whoever violates any provision of this section or any rule or regulation made hereunder shall forfeit not more than twenty-five dollars.
Chapter 111: Section 108. Removal of sick prisoners Section 108. If a prisoner in a jail or house of correction has a disease which, in the opinion of the physician of the board of health or of such other physician as it may consult, is dangerous to the safety and health of other prisoners or of the inhabitants of the town, the board shall, in writing, direct his removal to a hospital or other place of safety, there to be provided for and securely kept until its further order. If he recovers from the disease, he shall be returned to his former place of confinement. If the person so removed has been committed by order of court or under judicial process, the order for his removal, or a copy thereof attested by the presiding member of the board, shall be returned by him, with the doings thereon, into the office of the clerk of the court from which the process of commitment was issued. No prisoner so removed shall thereby commit an escape.
Chapter 111: Section 109. Notice of householder that person in family or house is infected with dangerous disease Section 109. A householder who knows or has cause to believe that a person in his family or house is infected with a disease dangerous to the public health shall forthwith give notice thereof to the board of health of the town where such householder dwells, unless a physician is in attendance. Upon the death, recovery or removal of such person, the householder shall disinfect to the satisfaction of the board such rooms of his house and articles therein as, in the opinion of the board, have been exposed to infection or contagion, but the board may in its discretion, disinfect all such premises as, in its opinion, have been exposed to any disease dangerous to the public health, at the expense of the town, and may employ any proper and competent person to so disinfect. Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars.
Chapter 111: Section 109A. Treatment of infants’ eyes at time of birth Section 109A. The physician, or hospital medical officer registered under section nine of chapter one hundred and twelve, if any, personally attending the birth of a child shall treat his eyes within two hours after birth with a prophylactic remedy furnished or approved by the department. Whoever violates this section shall be punished by a fine of not more than one hundred dollars.
Chapter 111: Section 11. Analyses of samples of alcoholic beverages Section 11. The department shall analyze, in accordance with sections thirty-six to thirty-nine, inclusive, of chapter one hundred and thirty-eight, all samples of alcoholic beverages, as defined in section one of said chapter one hundred and thirty-eight, submitted to it for that purpose by the officers mentioned in said section thirty-six if satisfied that the analysis is to be used in enforcing the laws.
Chapter 111: Section 110. Report of diseases of the eyes of infants Section 110. If either eye of an infant becomes inflamed, swollen and red, or shows an unnatural discharge within two weeks after birth, the nurse, relative or other attendant having charge of such infant shall report in writing, within six hours thereafter, to the board of health of the town where the infant is, the fact that such inflammation, swelling and redness of the eyes or unnatural discharge exist. On receipt of such report, or of notice of the same symptoms given by a physician, or a hospital medical officer registered under section nine of chapter one hundred and twelve, as provided by the following section, the board of health shall take such immediate action as it may deem necessary, including, so far as may be possible, consultation with an oculist and the employment of a trained nurse, in order that blindness may be prevented. Whoever violates this section shall be punished by a fine of not more than one hundred dollars.
Chapter 111: Section 110A. Tests of newborn children for treatable disorders or diseases Section 110A. The physician attending a newborn child shall cause said child to be subjected to tests for phenylketonuria, cretinism and such other specifically treatable genetic or biochemical disorders or treatable infectious diseases which may be determined by testing as specified by the commissioner. The commissioner may convene an advisory committee on newborn screening to assist him in determining which tests are necessary.
The department shall make such rules pertaining to such tests as accepted medical practice shall indicate.
The provisions of this section shall not apply if the parents of such child object thereto on the grounds that such test conflicts with their religious tenets and practices.
Chapter 111: Section 110B. Reyes syndrome treatment or examination; reports Section 110B. A physician, intern, physician assistant, a public health nurse, or another person who professionally examines or treats a child with reyes syndrome shall report such examination or treatment to the department of public health in accordance with the rules and regulations of the department. Such report shall be made on forms prescribed by the commissioner and shall be submitted as soon as possible after such examination or treatment.
The department shall, subject to appropriation, maintain comprehensive records of all reports submitted pursuant to this section. Such reports shall be confidential and shall be released by the department only upon written request of the subject of such report, or his guardian, executor, attorney, or other person designated by said subject in writing. Such reports and records or information contained therein, may also be released by the department to persons authorized by the commissioner to conduct research studies or to other persons, but no report or record shall be released which allows identification of the subjects of said reports or records. Whoever violates this section shall be punished by a fine of not more than one hundred dollars.
Chapter 111: Section 111. Notice to board of health that persons infected with dangerous diseases; application of section Section 111. If a physician knows or has cause to believe that a person whom he visits is infected with a disease dangerous to the public health, or if either eye of an infant whom or whose mother a physician, or a hospital medical officer registered under section nine of chapter one hundred and twelve, visits, becomes inflamed, swollen and red, or shows an unnatural discharge within two weeks after birth, he shall immediately give written notice thereof, signed by him, to the board of health of the town where the patient is being attended by him. If the board of health which receives such written notice is the board of health of a town other than that wherein the patient dwells, it shall, immediately upon receipt of such notice, send a copy thereof to the board of health of the town wherein the patient dwells; and, in addition thereto, the board of health which receives such written notice, whether or not it is the board of health of the town wherein the patient dwells, shall send a copy thereof to the board of health of the town in which the patient is known to have contracted such disease and to the board of health of each town in which he is known to have exposed any person to such disease. If a physician or such a hospital medical officer refuses or neglects to give the notice required by this section he shall be punished by a fine of not less than fifty nor more than two hundred dollars.
The foregoing provisions of this section shall not apply to tuberculosis, nor shall the foregoing provisions of this section and the provisions of section one hundred and nine apply to venereal diseases as defined under section six, except in the case of eye infections in infants under two weeks of age. Any person having tuberculosis or a venereal disease shall be reported to local boards of health either directly or through the department in accordance with such special rules and regulations as the department may make, having due regard for the best interests of the public.
Chapter 111: Section 111A. Cerebral palsy; reports Section 111A. If a physician or hospital medical officer registered under section nine of chapter one hundred and twelve knows or has cause to believe that a person whom he is attending is afflicted with cerebral palsy, he shall give written notice thereof to the board of health of the city or town where the patient is being attended. Said board of health shall annually make such report to the department of the notices required under this section as the department by rule or regulation may prescribe. Such notices and such reports shall be solely for use of the boards of health and the department and shall not be open to public inspection or constitute a public record.
Chapter 111: Section 111B. Malignant disease and benign brain-related tumor registry; reports Section 111B. The department shall, subject to appropriation, establish a registry to record certain cases of malignant disease and benign brain-related tumors that occur in residents of the commonwealth, and such information concerning these cases as it shall deem necessary and appropriate in order to conduct epidemiologic surveys of cancer and benign brain-related tumors and to apply appropriate preventive and control measures.
The commissioner shall require the reporting of certain cases of malignant disease and benign brain-related tumors and the submission of such specified additional information on reported cases or control populations as he deems necessary and appropriate for the recognition, prevention, or control of such diseases.
The department shall, subject to appropriation, maintain comprehensive records of all reports submitted pursuant to this section. Such reports shall be confidential in accordance with section seventy and shall be released by the department only upon written request of the patient, his guardian, executor, attorney, or other person designated in writing by said patient. Such reports and records or information contained therein, may also be released by the department to persons authorized by the commissioner to conduct research studies or to other persons, but no such studies shall identify the subjects of said reports or records.
Nothing in this section shall be construed to compel any individual to submit to medical or department examination or supervision.
The department shall make such rules and regulations as are necessary to implement the provisions of this section pursuant to chapter thirty A.
Chapter 111: Section 111C. Unprotected exposure capable of transmitting infectious disease; standardized trip form Section 111C. Any person, including without limitation, a police officer, fire fighter, emergency medical technician, corrections officer, ambulance operator or attendant who, while acting in his professional capacity, attends, assists, or transports a person or deceased person to a health care facility licensed under section fifty-one of chapter one hundred and eleven, and who sustains an unprotected exposure capable of transmitting an infectious disease dangerous to the public health, shall immediately, upon arrival at such facility, provide to the admitting agent or other appropriate employee of the said facility a standardized trip form. The department shall prepare and distribute said standardized trip form, which shall include, but need not be limited to the names of persons who believe they have had such unprotected exposure, and the manner in which such exposure occurred.
“Infectious diseases dangerous to the public health” shall be defined by department regulations which shall be promulgated pursuant to this section.
“Unprotected exposure capable of transmitting an infectious disease dangerous to the public health” shall be defined in regulations promulgated by the department and shall include, but not be limited to, instances of direct mouth-to-mouth resuscitation, or the co-mingling of the blood of the patient and the person who has transported the patient to the health care facility.
Any health care facility licensed under section fifty-one of chapter one hundred and eleven which, after receiving a transported individual or deceased person, diagnoses the individual or deceased person as having an infectious disease dangerous to the public health as defined pursuant to the provisions of this section, shall notify orally within forty-eight hours after making such a diagnosis, and in writing within seventy-two hours of such diagnosis, any individual listed on the trip report who has sustained an unprotected exposure which, in the opinion of the health care facility is capable of transmitting such disease. Such response shall include, but not be limited to, the appropriate medical precautions and treatments which should be taken by the party who has sustained the unprotected exposure; provided, however, that the identity of the patient suspected of having such disease shall not be released in such response, and shall be kept confidential in accordance with the provisions of section seventy. The department shall determine the method by which the response to the trip report is conveyed, and shall assure the patient or deceased person’s legal representative or next of kin, if there is no legal representative is informed of those individuals who have been notified of his disease pursuant to this section, and that the response is directed only to those parties who have sustained an unprotected exposure to an infectious disease.
Notwithstanding the provisions of any general law or special law to the contrary, no hospital, or agent, employee, administrator, doctor, official or other representative of said reporting institution shall be held jointly or severally liable either as an institution, or personally, for reporting pursuant to the requirements of this section, if such report was made in good faith. All such parties, provided they have operated in good faith, shall otherwise be afforded total immunity from civil or criminal liability as a result of fulfilling the provisions of this section or the regulations promulgated in accordance with this section.
Chapter 111: Section 112. Notice by local board to department Section 112. If the board of health of a town has had notice of a case of any disease declared by the department dangerous to the public health therein, it shall within twenty-four hours thereafter give notice thereof to the department, stating the name and the location of the patient so afflicted, and upon request the department shall forthwith certify any such reports to the department of public welfare.
Chapter 111: Section 113. Records of reports of dangerous diseases; notice Section 113. Every board of health shall keep a record of all reports received pursuant to sections one hundred and nine to one hundred and eleven, inclusive, containing the name and location of all persons who are infected, their disease, the name of the person reporting the case, the date of such report, and other information required by the department. Such records shall be kept in the manner or upon forms prescribed by the department. The board of health shall forthwith give information to the school committee of all diseases dangerous to the public health so reported to it. Every board of health shall appoint some person, who may or may not be a member of the board, who shall give notice to the department, as provided in the preceding section, of any person infected with a disease dangerous to the public health; and in case of the absence or disability of such appointee, the board of health shall appoint another person to perform this duty during such absence or disability. Such appointments and the acceptance thereof by the persons so appointed shall be placed upon the records of the board. Any person, having accepted such appointment, who wilfully refuses or wilfully neglects or through gross negligence fails to give such notices shall be punished by a fine of not more than fifty dollars.
Chapter 111: Section 114. Forfeiture of claim Section 114. A claim of a town against the commonwealth for reasonable expenses incurred by the board of health in making the provision required by law for persons infected with a disease dangerous to the public health shall not be defeated by reason of the failure on the part of the board to give notice of such disease to the department under section one hundred and twelve, if such claim is otherwise a valid claim against the commonwealth.
Chapter 111: Section 115. Recovery of expenses Section 115. Expenses incurred by a town in the removal of nuisances or for the preservation of the public health, for which any person is liable, may be recovered in contract.
Chapter 111: Section 116. Payment of reasonable expenses; chronically nonresident person defined Section 116. Reasonable expenses incurred by boards of health or by the commonwealth in making the provision required by law for persons infected with smallpox or other disease dangerous to the public health, other than tuberculosis, shall be paid by such persons, or, if such person is a minor, by his parents, if he or they are able to pay; otherwise, by the town where he has a residence upon the approval of the bill by the board of health of such town or by the department of public health of such town or by the department of public health when such person is determined to be a chronically nonresident person.
For the purposes of this section the term “chronically nonresident person” means a person who evidences by his past conduct an inability or unwillingness to establish and maintain a residency with any degree of permanency and whose instability and general living standards in exposing himself and others to infection makes him a special problem for control in the commonwealth of smallpox or other disease dangerous to the public health.
Chapter 111: Section 116A. Hospitalization of persons suffering from chronic rheumatism; rules and regulations Section 116A. The department, subject to rules and regulations approved by the division of health care finance and policy, may provide for the care and treatment of persons suffering from chronic rheumatism for a period not exceeding six months in case of any one such person, and said department may enter into contracts with one or more existing hospitals within any metropolitan district for the care and treatment of such patients; provided, that not more than twenty-five such patients may be cared for or treated under this section at any one time.
Chapter 111: Section 117. Establishment and maintenance of clinics for treatment of venereal diseases; examinations; minors Section 117. For the purpose of providing treatment for persons suffering from venereal diseases, as defined under section six, and who are unable to pay for private medical care, the department shall, or with the co-operation of local boards of health, hospitals, dispensaries or other agencies may, establish and maintain clinics in such parts of the commonwealth as it may deem most advantageous to the public health, and may otherwise provide treatment for such diseases subject to such rules and regulations as the department may from time to time establish. Cities and towns, separately or jointly, through their boards of health or municipal hospitals, may establish and maintain such clinics. For the purposes of this section, providing treatment shall include providing transportation or the reasonable cost of such transportation to and from the place where treatment is given whenever the patient is not able to pay for such transportation.
For the purposes of this section, physical examination and treatment by a registered physician or surgeon upon the person of a minor who voluntarily appears therefor, shall not constitute an assault or an assault and battery upon said person.
Chapter 111: Section 118. Discrimination against treatment of venereal diseases Section 118. No discrimination shall be made against the treatment of venereal diseases, as defined under section six, in any general hospital supported by taxation in any city or town where special hospitals, other than hospitals connected with penal institutions, are not provided for the treatment of such diseases at public expense; but any such hospital may establish a separate ward for their treatment.
Chapter 111: Section 119. Records pertaining to venereal diseases Section 119. Hospital, dispensary, laboratory and morbidity reports and records pertaining to venereal diseases, as defined under section six, shall not be public records, and the contents thereof shall not be divulged by any person having charge of or access to the same, except upon proper judicial order or to a person whose official duties, in the opinion of the commissioner, entitle him to receive information contained therein. Violations of this section shall for the first offence be punished by a fine of not more than fifty dollars, and for a subsequent offence by a fine of not more than one hundred dollars.
Chapter 111: Section 12. Analyses of narcotic drugs, poison, drugs, medicines or chemicals Section 12. The department shall make, free of charge, a chemical analysis of any narcotic drug, or any synthetic substitute for the same, or any preparation containing the same, or any salt or compound thereof, and of any poison, drug, medicine or chemical, when submitted to it by police authorities or by such incorporated charitable organizations in the commonwealth, as the department shall approve for this purpose; provided, that it is satisfied that the analysis is to be used for the enforcement of law.
Chapter 111: Section 120. Repealed, 1948, 120 Chapter 111: Section 121. Treatment of venereal diseases or pulmonary tuberculosis in public charitable or penal institutions; expenses Section 121. An inmate of a public charitable institution or a prisoner in a penal institution who is afflicted with a venereal disease, as defined under section six or pulmonary tuberculosis shall be forthwith placed under medical treatment, and if, in the opinion of the attending physician, it is necessary, he shall be isolated until danger of contagion is passed or the physician determines his isolation unnecessary. If at the expiration of a prisoner’s sentence he is afflicted with a venereal disease, as defined under section six or pulmonary tuberculosis in its contagious or infectious stages, or if, in the opinion of the attending physician of the institution or of such physician as the authorities thereof may consult, his release would be dangerous to public health, he shall be placed under medical treatment in the institution where he has been confined. Thereupon the authorities of such institution shall notify the department of public welfare of his condition and said department shall provide for his hospitalization and medical care at an institution until, in the opinion of the attending physician of the institution wherein he is being treated, the symptoms have disappeared and his release will not endanger the public health. Notice of a prisoner’s release hereunder to the department of public welfare shall be made to the department of public health. The expense of his support, not exceeding three dollars and fifty cents a week, shall be paid by the town where he resides, after notice of the expiration of his sentence and of his condition to such town, or, if he is a state charge, by the commonwealth after like notice to the department of public welfare.
Chapter 111: Section 121A. Serological test for syphilis of pregnant women Section 121A. A physician attending a pregnant woman in this commonwealth during gestation shall take or cause to be taken a sample of blood of such woman at the time of first examination, and shall submit such sample for a standard serological test for syphilis to a laboratory of the department or to a laboratory approved for such test by the department; provided, that not more than one physician attending a pregnant woman during gestation shall be required to comply with the provisions of this section.
Chapter 111: Section 122. Regulations relative to nuisances; examinations Section 122. The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town, or on board of vessels within the harbor of such town, which may, in its opinion, be injurious to the public health, shall destroy, remove or prevent the same as the case may require, and shall make regulations for the public health and safety relative thereto and to articles capable of containing or conveying infection or contagion or of creating sickness brought into or conveyed from the town or into or from any vessel. Whoever violates any such regulation shall forfeit not more than one thousand dollars.
Chapter 111: Section 122A. Regulation of domestic water supply; powers of board of health; penalties Section 122A. Upon determination by the board of health that the available supply of water for drinking, culinary and other domestic purposes in any place of habitation, or in any place where food or drink is prepared, handled or served to the public, is so unsafe or inadequate as to constitute a nuisance within the meaning of this chapter, said board may issue a written order to the owner of such place, as appearing in the current records of the assessors, requiring him to discontinue the use of the water supply, or, at his option, to provide such place with a water supply safe and adequate for such purposes. Any person who wilfully fails or refuses to comply with such an order shall be punished by a fine of not less than fifty dollars, and the board may thereupon cause the removal of the occupants of the place to which the order relates, which shall not again be occupied as a place of habitation or place in which food or drink is prepared, handled or served to the public, without its written permission. The superior court, on a petition in equity brought by said board, shall have jurisdiction by injunction or otherwise to enforce any order issued under this section.
Chapter 111: Section 123. Abatement by owner; penalty Section 123. Said board shall order the owner or occupant of any private premises, at his own expense, to remove any nuisance, source of filth or cause of sickness found thereon within twenty-four hours, or within such other time as it considers reasonable, after notice; and an owner or occupant shall forfeit not more than one thousand dollars for every day during which he knowingly violates such order.
Chapter 111: Section 124. Service of order for abatement Section 124. Such order shall be in writing, and may be served personally on the owner, occupant or his authorized agent by any person authorized to serve civil process; or a copy of the order may be left at the last and usual place of abode of the owner, occupant or agent, if he is known and within or without the commonwealth; or a copy of the order may be sent to the owner, occupant or agent by registered mail, return receipt requested, if he is known and within the commonwealth. If the order is directed against the owner and if the residence and whereabouts of the owner or his agent are unknown or without the commonwealth, the board may direct the order to be served by posting a copy thereof in a conspicuous place on the premises and by advertising it for at least three out of five consecutive days in one or more newspapers of general circulation within the municipality wherein the building affected is situated.
Chapter 111: Section 125. Removal of nuisance by board Section 125. If the owner or occupant fails to comply with such order, the board may cause the nuisance, source of filth or cause of sickness to be removed, and all expenses incurred thereby shall constitute a debt due the city or town upon the completion of the removal and the rendering of an account therefor to the owner, his authorized agent, or the occupant, and shall be recoverable from such owner or occupant in an action of contract.
The provisions of the second paragraph of section three A of chapter one hundred and thirty-nine, relative to liens for such debt and the collection of the claims for such debt, shall apply to any debt referred to in this section, except that the board of health shall act hereunder in place of the mayor or board of selectmen.
Chapter 111: Section 125A. Review of order adjudging the operation of a farm to be a nuisance Section 125A. If, in the opinion of the board of health, a farm or the operation thereof constitutes a nuisance, any action taken by said board to abate or cause to be abated said nuisance under sections one hundred and twenty-two, one hundred and twenty-three and one hundred and twenty-five shall, notwithstanding any provisions thereof to the contrary, be subject to the provisions of this section; provided, however, that the odor from the normal maintenance of livestock or the spreading of manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or farming lands shall not be deemed to constitute a nuisance.
In the case of any such nuisance a written notice of an order to abate the same within ten days after receipt of such notice shall first be given as provided in section one hundred and twenty-four. If no petition for review is filed as herein provided, or upon final order of the court, said board may then proceed as provided in said sections one hundred and twenty-two, one hundred and twenty-three and one hundred and twenty-five, or in the order of the court. If the owner or operator of said farm within said ten days shall file a petition for a review of such order in the district court for the district in which the farm lies, the operation of said order shall be suspended, pending the order of the court. Upon the filing of such petition the court shall give notice thereof to said board, shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said order and affirm, annul, alter or modify the same as justice may require. The parties shall have the same rights of appeal on questions of law as in other civil cases in the district courts.
Chapter 111: Section 126. Location of privy vaults Section 126. If the city council of a city, or a town having a population of more than one thousand, accepts this section, or has accepted corresponding provisions of earlier laws, no privy vault shall be constructed upon premises connected with a common or private sewer or abutting on a public or private street, court or passageway in which there is a common sewer opposite thereto, without permission in writing having first been obtained from the board of health. And if, in the opinion of said board, a privy vault so situated is injurious to the public health, it shall declare the same a nuisance and forbid its continuance, and the three preceding sections shall apply thereto.
Chapter 111: Section 127. Regulations relative to house drainage Section 127. The board of health of a city or town may make and enforce regulations for the public health and safety relative to house drainage and connection with common sewers, if such a sewer abuts the estate to be drained. Master plumbers and journeymen licensed under chapter one hundred and forty-two shall be exempt from any such regulation relative to license qualifications, but shall be subject to all other regulations. Whoever violates any such regulation shall forfeit not more than one hundred dollars.
Chapter 111: Section 127A. State sanitary code; adoption; enforcement; jurisdiction; speedy trial Section 127A. Said department shall adopt, and may from time to time amend, public health regulations to be known as the state sanitary code, which may provide penalties for violations thereof not exceeding five hundred dollars for any one offence or not more than twenty-five thousand dollars or up to two years in a house of correction for violations involving the improper disposal of infectious or physically dangerous medical or biological waste. Said code shall become effective and have the force of law upon filing with the state secretary or at such later date as may be specified by the department. The code shall deal with matters affecting the health and well-being of the public in the commonwealth in subjects over which the department takes cognizance and responsibility, including, but not limited to, standards of fitness for human habitation, housing and sanitation standards for farm labor camps, standards for recreational camps for children, standards for swimming pools, bathing beaches, family type camp grounds, and sanitation standards for food service establishments; provided, however, that single-purpose classes, workshops, clinics or programs sponsored by municipal recreation departments, or neighborhood playgrounds designed to serve primary play interests and needs of children, as well as affording limited recreation opportunities for all people of a residential neighborhood, whether supervised or unsupervised, located on municipal or non-municipal property, whether registration is required or participation is on a drop-in basis, shall not be deemed to be recreational camps for children. Nothing contained in the code shall be in conflict with any general or special law. This section shall not be deemed to limit the right of any board of health to adopt such rules and regulations as, in its opinion, may be necessary for the particular locality under its jurisdiction; provided, such rules and regulations do not conflict with the laws of the commonwealth or the provisions of the code. Said code may provide for the demolition, removal, repair or cleaning by local boards of health and, in the cities of Boston, Worcester and Cambridge, by the commissioner of housing inspection, of any structure which so fails to comply with the standards of fitness for human habitation or other regulations in said code, as to endanger or materially impair the health or well-being of the public. Said code or a supplement thereto shall designate those conditions which, when found to exist upon inspection of residential premises, shall be deemed to endanger or materially impair the health or safety of persons occupying the premises. This designation shall not be construed as prohibiting an inspector or other authorized person from certifying that any other violation or combination or series of violations of said code or other applicable laws, ordinances, by-laws, rules or regulations may endanger or materially impair the health or safety of said persons when such certification is otherwise appropriate.
Local boards of health shall enforce said code in the same manner in which local health rules and regulations are enforced, but, if any such local boards fail after the lapse of a reasonable length of time to enforce the same, the department may in like manner enforce said code against any violator. The superior court shall have jurisdiction in equity to enforce the provisions of said code and any actions brought to enforce said provisions shall be advanced for speedy trial.
Chapter 111: Section 127B1/2. Petition for agreement to remove underground fuel storage tank or lead paint or to provide proper service by a septic system; costs; authority to evict Section 127B1/2. At any time prior to or during the course of proceedings conducted pursuant to section one hundred and twenty-seven B, resulting solely from a residential underground fuel storage tank or the detection of dangerous lead paint levels, as determined under the authority of section one hundred and ninety-four, or in the event the state environmental code pursuant to section thirteen of chapter twenty-one A requires the repair, replacement or upgrade of a septic system the owner of a structure used for human habitation may petition the board of health in a city or town to make findings consistent with its authority under this chapter and may enter into an agreement, subject to appropriation, authorizing such board of health or such owner to cause the premises to be properly serviced by a septic system, removal of a residential underground fuel storage tank or to have removed any dangerous levels of lead paint, as determined under the authority of section one hundred and ninety-four, at the owners expense. An owner who enters into such an agreement shall be responsible for all expenses incurred by the board of health, directly or indirectly, or required by the board of health and incurred by the owner for such repairs, replacement, or upgrade of a septic system, removal of a residential underground fuel storage tank or removal of dangerous levels of lead paint. A notice of such agreement shall be recorded as a betterment and be subject to the provisions of chapter eighty relative to the apportionment, division, reassessment and collection of assessment, abatement and collections of assessments, and to interest; provided, however, that for purposes of this section, such lien shall take effect by operation of law on the day immediately following the due date of such assessment or apportioned part of such assessment and such assessment may bear interest at a rate determined by the city or town treasurer by agreement with the owner at the time such agreement is entered into between the board of health and the property owner. In addition to remedies available under chapter eighty, the property owner shall be personally liable for the repayment of the total costs incurred by the city or town under this section; provided, however, that upon assumption of such personal obligation to a purchaser or other transferee of all of the original owners interest in the property at the time of conveyance and the recording of such assumption, the owner shall be relieved of such personal liability.
Any costs incurred under the provisions of this section may be funded by an appropriation or issuance of debt, provided that any debt incurred shall be subject to the provisions of chapter forty-four and shall not exceed twenty years.
Any appropriation or borrowing by the city or town for purposes contained within this section shall not be included for the purpose of computation of the levy or borrowing limits otherwise imposed upon such city or town by the general laws.
An agreement between an owner and a board of health in a city or town pursuant to this section shall not be considered a breach of limitation or prohibition contained in a note, mortgage or contract on the transfer of an interest in property.
A board of health in a city or town acting pursuant to the provisions of this section shall have the same authority as set forth in section one hundred and twenty-seven B to institute an action for eviction. Any such action by the board of health shall not otherwise impair the rights or obligations of the occupants or owner with respect to each other.
Notwithstanding any provision of chapter 183A to the contrary, the organization of unit owners of a condominium may petition the board of health in a city or town to enter into a betterment agreement pursuant to this section to finance the repair, replacement or upgrade of a septic system serving a unit, one or more of which is used for human habitation provided that such system comprises part of the common areas and facilities. Such agreement shall: (i) be approved by a majority of the unit owners benefited by the repair, replacement or upgrade of the septic system or any combination of such septic system improvements; (ii) include an identification of the units and unit owners subject to the agreement and the percentages, as set forth in the master deed, of the undivided interests of the respective units in the common area and facilities; and (iii) include a statement by an officer or trustee of the organization of unit owners certifying that the required number of unit owners have approved the agreement. As between the affected unit owners and the city or town, such certification shall be conclusive evidence of the authority of the organization of unit owners to enter into the agreement. A notice of such agreement shall be recorded as a betterment in the registry of deeds or registry district of the land court where the master deed is recorded and shall be otherwise subject to the provisions of chapter 80 as provided for in this section. The assessment under such agreement may be charged or assessed to the organization of units owners but shall not constitute an assessment of common expenses. Instead, the allocable share of the assessment, prorated on the basis of the percentage interests of the benefited units in the common areas and facilities, shall attach as a lien only to the units identified in the recorded notice and benefited by the repair, replacement or upgrade of the septic system or any combination of such septic system improvements and the owners of such units shall also be personally liable for their allocable share of the assessment as provided for in this section. Words defined in section 1 of said chapter 183A and used in this paragraph have the same meanings as appearing in said chapter 183A.
Chapter 111: Section 127B. Dwellings unfit for human habitation; order to vacate or to abate nuisance; removal of occupants; demolition expense, lien; inspection reports; code violations; notices; enforcement proceedings, jurisdiction; appeal Section 127B. Upon a determination by the board of health, or, in the cities of Boston, Worcester and Cambridge, by the commissioner of housing inspection, after examination as provided in said code, that a building, tenement, room, cellar, mobile dwelling place or any other structure (a) is unfit for human habitation, (b) is or may become a nuisance, or (c) is or may be a cause of sickness or home accident to the occupants or to the public, it may issue a written order to the owner or occupant or any of them thereof, requiring the owner or occupant to vacate, to put the premises in a clean condition, or to comply with the regulations set forth in said code which are not being complied with or to comply with the rules and regulations adopted by the board of health as being necessary for the particular locality. The order shall be served in the same manner as is provided for the service of an order by section one hundred and twenty-four. A copy of such order shall be served upon any mortgagee or lienor of record by sending the same by registered mail, return receipt requested. If the owner or occupant refuses to comply with such order, the board of health may cause the premises to be properly cleaned at the expense of the owner or occupant, remove the occupant forcibly and close up the premises, or it may issue a written notice to the owner of such building, as appearing in the current records of the assessors of such town, setting forth the particulars of such unfitness and requiring that the conditions be remedied. If the person so notified fails within a reasonable time to remedy the conditions thus set forth, the superior court on a petition in equity brought by the board of health, shall have jurisdiction, to enforce the requirements of the board of health, by appointment of a receiver in accordance with the provisions of section one hundred and twenty-seven I, or by providing other equitable or legal relief. A copy of such written notice shall be served upon any mortgagee or lienor of record, by sending the same by registered mail, return receipt requested. No occupant of any residential premises may be removed, nor any order to vacate issued to any such occupant, unless the board of health has previously issued a written finding that the premises are unfit for human habitation. The board shall enter in said finding the material facts upon which such finding is based. No such finding shall be made before said occupants have been given written notice and an opportunity for a public hearing to be held not less than five days after receipt of such notice, unless the board of health determines in writing that the danger to the life or health of the occupants is so immediate that no delay may be permitted. In all other cases in which the board of health determines that residential premises are not unfit for human habitation but that conditions within such premises in violation of said code or rules and regulations may not be remedied unless the occupants are removed therefrom, it may bring an action to remove the occupants from the premises pursuant to chapter two hundred and thirty-nine. In any such action, the court shall consider the matter according to the procedures and standards otherwise set forth in said chapter, and may grant a stay or stays of execution when appropriate. Premises closed up under the provisions of this section shall not be occupied as a human habitation without written permission of the board of health. If compliance with the regulations contained in said code has not been effected within one year from the date the premises have been so closed up the board of health may cause such structure to be demolished or removed; provided, however, that said board, upon written certification to it by the head of the local health department that immediate demolition or removal is essential to protect the health and safety of the public, may cause such demolition or removal within ninety days of said closing. A claim for the expense incurred by said board in cleaning the premises or in causing such structure to be demolished or removed shall constitute a debt due the city or town upon the completion of the work and the rendering of an account therefor to the owner of such structure, and shall be recoverable from such owner in an action of contract.
The provisions of the second paragraph of section three A of chapter one hundred and thirty-nine relative to liens for such debt and the collection of the claims for such debt, shall apply to any debt referred to in this section, except that the board of health, or, in the cities of Boston, Worcester and Cambridge, the commissioner of housing inspection, shall act hereunder in place of the mayor or board of selectmen.
Local boards of health shall enforce said code in the same manner in which local health rules and regulations are enforced but if any such local board fails after the lapse of a reasonable length of time to enforce the same, the department may in like manner enforce said code against any violator.
The superior court, housing court, and district court shall have jurisdiction in equity to enforce the provisions of said code.
A board of health and, in the cities of Boston, Worcester and Cambridge the commissioner of housing inspection, or local code enforcement agency may file a petition under section one hundred and twenty-seven H.
A copy of the report of any investigation or inspection of residential premises for violations of the code or other applicable laws, ordinances, by-laws, rules or regulations, and of any written order or notice issued by the board, shall be delivered personally or sent by first class mail to the occupants of all affected premises within seven days after the investigation or inspection of the premises or the issuance of the order or notice. A notice of the date, time and place of any administrative or court hearings scheduled by or known to the board relating to violations, including all referrals of violations to other government agencies, shall also be delivered or sent to the occupants. All investigation or inspection reports shall include the name of the inspector, and the date and time of the inspection or investigation; the date and time of any scheduled follow-up inspection; a description of the conditions constituting the violations, if any; a listing of the specific provisions of the code or other applicable laws, ordinances, by-laws, rules or regulations that appear to be violated; a determination by the official inspecting the premises whether each violation, or the cumulative effect of all violations, may endanger or materially impair the health, safety or well-being of any occupant or the public; a determination by said official whether any violations appeared to be substantially caused by the occupant or any person acting under his control; and a brief summary of the statutory remedies available to occupants of the affected premises. All reports, orders or notices relating to such inspections, investigations, or violations shall be public records, and shall be kept on file by the originating agency according to law.
Any person aggrieved by the failure of any inspectors or other personnel of the board or other code enforcement agency to inspect upon request any premises that the board or agency may lawfully inspect, or to find violations of law where such violations are claimed to exist, or to certify that such violations may endanger or materially impair the health, safety or well-being of the occupants, may appeal such failure to act to the full board or to the head of the agency. Such appeal shall be given a speedy hearing before said board or an impartial officer of said agency.
Chapter 111: Section 127C. Petition for violation of sanitary code; requisites Section 127C. If the condition of any building or any part thereof used for residential purposes is in violation of the standards of fitness for human habitation established under the state sanitary code, as provided by section one hundred and twenty-seven A, or in violation of any board of health standards, a petition may be filed by any affected tenant or by the board of health, or, in the cities of Boston, Worcester and Cambridge, by the commissioner of housing inspection, in a district court, housing court, or superior court. The petition shall state that the premises have been inspected by the board of health or other appropriate inspection agency and that the condition of said premises has been found to be in violation of the state sanitary code; that such condition may endanger or materially impair the health or well-being of any tenant therein; and that said condition was not substantially caused by the tenant or any other person acting under his control.
An affected tenant may also file a petition in such court without stating that such premises have been found by an appropriate inspection agency to be in violation of any such standards, provided that he states (a) facts sufficient to demonstrate a likely violation of the state sanitary code which may endanger or materially impair the health or well-being of any tenant in the building or premises occupied by such tenant, (b) that the conditions in question were not substantially caused by such tenant or any person acting under his control and (c) that a request for inspection of such premises was made to the appropriate inspecting agency at least twenty-four hours prior to the filing of the petition and that there has been no inspection.
Chapter 111: Section 127D. Entry fee; notice upon offending owner Section 127D. The entry fee for a petition under section one hundred and twenty-seven C shall be two dollars. Upon the filing of such a petition, an order of notice shall issue requiring the owner of record to appear at a time not later than fourteen days after the issuance of said order of notice, to file an answer to the matters alleged in the petition including therein the names and addresses of any mortgagees or lienors of record known to the owner of record, and to submit to a hearing thereon.
Such order of notice shall be served at least seven days before the return day thereof, by any officer qualified to serve civil process by delivering to the respondent an attested copy thereof, or, by leaving such copy at his last and usual place of abode, or, at the address to which the rent is sent or delivered, or, if the respondent is a corporation, service may also be made in the manner provided by law or by leaving an attested copy thereof at the last and usual place of abode of the president, treasurer or clerk of the corporation, or in such other manner as the court may direct.
Chapter 111: Section 127E. Copy of report of investigation; admissibility in evidence Section 127E. A copy of the report of the investigation by the department of public health or the board of health, or, in the cities of Boston, Worcester and Cambridge, the commissioner of housing inspection, certified as a true copy by the custodian of the records of such agency shall be admissible in any proceeding brought under section one hundred and twenty-seven C without further authentication, and shall be prima facie evidence of the facts stated therein.
Chapter 111: Section 127F. Court order regarding rental payments; disbursement of funds; receiver Section 127F. If the court finds after hearing that the facts are as alleged in said petition, it may by written order authorize the petitioner or any other affected tenant to pay to the clerk of the court the fair value of the use and occupation of the premises, or such installments thereof from time to time as the court may direct; provided the court finds that any such violation may endanger or materially impair the health, safety or well-being of such tenant and that such payments are necessary to remedy the condition constituting the violation; and that said tenant is not in arrears in his rent, taking into account any abatement of rent due to the existence of such violations, or if he is in arrears is willing to pay any arrearage into the court as ordered. A person occupying the premises shall not be considered to be in arrears in his rent when the amount of rent the landlord alleges in good faith to be due is equal to or less than the amount of any counterclaim that said person may bring in good faith against the landlord, including any damages owed because of a breach of warranty or a violation of any other law. In determining said fair value, the court may be guided by any findings issued by the department or any other agency concerned with the condition of residential premises and any other evidence relative to the effect of violations of such standards upon the use and occupation of residential premises. Any order of the court shall be forthwith sent by the clerk of court to any and all mortgagees and lienors of record as the court deems proper under the circumstances.
The court may direct the clerk by written order to disburse all or any portion of the rental payments received by him to the respondent for the purpose of effectuating the removal of the violation. The court may also direct the clerk to make such other disbursements of the rental payments to the respondent or to any other person as in the judgment of the court will permit the owner to maintain the property.
When the violation is removed, the court shall direct that the balance of funds, if any, remaining with the clerk be paid to the respondent. The court may render judgment for costs in its discretion.
In lieu of or in addition to any relief that may be provided under this section, the court may appoint a receiver under section one hundred and twenty-seven I.
Chapter 111: Section 127G. Removal from district to superior or housing court; transmittal of rents and removal fees Section 127G. At any time after thirty days from the date of a district court’s order authorizing the making of rental payments into court under section one hundred and twenty-seven F, upon application of any party and upon payment of a removal fee of five dollars, the clerk of the district court shall remove the case to the superior or housing court for further proceedings therein in the same manner and to the same extent as if the petition had originally been brought in said court. The clerk of court shall forthwith transmit any rents held by him, as the result of a written order issued under section one hundred and twenty-seven F together with the removal fee, to the clerk of the superior or housing court.
Chapter 111: Section 127H. Repealed, 1992, 407, Sec. 9 Chapter 111: Section 127I. Enforcement of sanitary code; remedies; receiver Section 127I. Upon the filing of a petition to enforce the provisions of the sanitary code, or any civil action concerning violations of the sanitary code by any affected occupants or a public agency, whether begun in the district, housing or superior court, and whether brought under section one hundred and twenty-seven C or otherwise, the court may: issue temporary restraining orders, preliminary or permanent injunctions; order payment by any affected occupants to the clerk of court, in accordance with the provisions of section one hundred and twenty-seven F; or appoint a receiver whose rights, duties and powers shall be specified by the court in accordance with the provisions of this section.
Upon receipt of service of any petition in which the appointment of a receiver is sought, the owner shall provide to the petitioner, within three days, a written list of all mortgagees and lienors of record. At least fourteen days prior to any hearing in any such proceeding, the petitioner shall send by certified or registered mail a copy of the petition to all mortgagees and lienors included in the owner’s list as well as to all other mortgagees and lienors of which the petitioner may be aware, and shall notify them of the time and place of the hearing. Upon motion of the petitioner, the court may order such shorter periods of prior notice as may be justified by the facts of the case.
Whenever a petitioner shows that violations of the sanitary code will not be promptly remedied unless a receiver is appointed and the court determines that such appointment is in the best interest of occupants residing in the property, the court shall appoint a receiver of the property. Any receiver appointed under this paragraph may be removed by the court upon a showing that the receiver is not diligently carrying out the work necessary to bring the property into compliance with the code, or that it is in the best interest of any tenants residing in the property that removal occur.
No receiver shall be appointed until the receiver furnishes a bond or such other surety and provides proof of such liability insurance as the court deems sufficient in the circumstances of the case. Upon appointment, the receiver shall promptly repair the property and maintain it in a safe and healthful condition. The receiver shall have full power to borrow funds and to grant security interests or liens on the affected property, to make such contracts as the receiver may deem necessary, and, notwithstanding any special or general law to the contrary, shall not be subject to any public bidding law nor considered a state, county or municipal employee for any purpose. In order to secure payment of any costs incurred and repayment of any loans for repair, operation, maintenance or management of the property, the receiver shall have a lien with priority over all other liens or mortgages except municipal liens, and such lien priority may be assigned to lenders for the purpose of securing loans for repair, operation, maintenance or management of the property. No such lien shall be effective unless recorded in the registry for the county in which the property is located.
The receiver shall be authorized to collect rents and shall apply the rents to payment of any repairs necessary to bring the property into compliance with the sanitary code and to necessary expenses of operation, maintenance, and management of the property, including insurance expenses and reasonable fees of the receiver, and then to payment of any unpaid taxes, assessments, penalties or interest. Any excess of income in the hands of the receiver shall then be applied to payments due any mortgagee or lienor of record.
Nothing in this section shall be deemed to relieve the owner of property of any civil or criminal liability or any duty imposed by reason of acts or omissions of the owner, nor shall appointment of a receiver suspend any obligation the owner or any other person may have for payment of taxes, of any operating or maintenance expense, or of mortgages or liens, or for repair of the premises.
The receiver shall be liable for injuries to persons and property to the same extent as the owner would have been liable; however, such liability shall be limited to the assets and income of the receivership, including any proceeds of insurance purchased by the receiver in its capacity as receiver. The receiver shall in no instance be personally liable for actions or inactions within the scope of the receiver’s capacity as receiver. No suit shall be brought against the receiver except as approved by the court which appointed the receiver. Nothing herein shall be construed to limit the right of tenants to raise any counterclaims or defenses in any summary process or other action regarding possession brought by a receiver.
The remedies set forth herein shall be available to condominium unit owners and tenants in condominium units. Whenever used in this section, the term “petitioner” shall include a condominium unit owner or tenant, the term “owner” shall include a condominium association, the terms “mortgagees” and “lienors” shall include mortgagees and lienors of individual condominium units, and the term “rents” shall include condominium fees. The receiver shall have the right to impose assessments upon individual condominium units for payment of expenses incurred in the exercise of his powers, which liens shall have priority over all other liens and mortgages, except municipal liens.
The receiver shall file with the court and with all parties of record, on a bimonthly basis, an accounting of all funds received by and owed to the receiver, and all funds disbursed, and shall comply with such other reporting requirements mandated by court, unless, for cause shown, the court determines that less frequent or less detailed reports are appropriate; provided that said notice shall not be less than five days.
Chapter 111: Section 127J. Petition by receiver to apply for financial assistance; notice and hearing; financial assistance; lien Section 127J. A receiver may petition the court for leave to apply for financial assistance from the commonwealth to supplement funds otherwise available from rents, if he deems that the rents are insufficient to effectuate the necessary repairs or rehabilitation. Seven days’ notice of a hearing on said petition shall be given to the respondent as well as any mortgagees or lien holders of record. The court, after hearing, may, by decree, authorize the receiver to apply for such financial assistance, if it finds such assistance is necessary, that it is in a reasonable amount and that the sum required to repair and rehabilitate the premises is not so excessive as to constitute an imprudent and unreasonable expenditure to accomplish the purpose.
Application for financial assistance shall be made to the department of public health in such manner and on such forms as may be prescribed by said department.
Said department may expend for such assistance such sums as may be appropriated therefor.
The receiver shall return any unused portion of any sums received by him to the commonwealth. The balance owed by the receiver to the commonwealth shall, together with interest thereon at the rate of six per cent per annum, constitute a debt due the commonwealth, upon the rendering of an account therefor to the owner of record, and shall be recoverable from such owner in an action of contract. Any such debt, including interest thereon, shall constitute a lien on the property involved, if a notice of such lien is recorded on behalf of the commonwealth in the proper registry of deeds within ninety days after the debt becomes due.
Any proceeding under this section may be advanced for speedy trial.
Chapter 111: Section 127K. Agreement to waive enforcement of sanitary code; validity Section 127K. Any provision of a lease or other rental agreement relating to real property whereby a lessee, tenant or occupant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to waive the benefits of any provision of section one hundred and twenty-seven C to one hundred and twenty-seven I, inclusive, shall be deemed to be against public policy and void.
Chapter 111: Section 127L. Repairs by tenants of residential premises to cure violations; reimbursement for cost Section 127L. When violations of the standards of fitness for human habitation as established in the state sanitary code, or of other applicable laws, ordinances, by-laws, rules or regulations, may endanger or materially impair the health, safety or well-being of a tenant of residential premises and are so certified by the board of health or local code enforcement agency, or in the cities of Boston, Worcester and Cambridge by the commissioner of housing inspection, or by a court of law, and if the owner or his agent has been notified in writing of the existence of the violations and has failed to begin all necessary repairs or to contract in writing with a third party for such repairs within five days after such notice, and to substantially complete all necessary repairs within fourteen days after such notice, unless a board of health, local code enforcement agency or court has ordered that said violations be corrected within a shorter period, in which case said period shall govern, the tenant or tenants may repair or have repaired the defects or conditions constituting the violations. The tenant or tenants may subsequently deduct from any rent which may subsequently become due, subject to the provisions of the following paragraph, an amount necessary to pay for such repairs. The tenant or tenants may, alternatively in such cases, treat the lease or rental agreement as abrogated, pay only the fair value of their use and occupation and vacate the premises within a reasonable time.
A tenant may not deduct pursuant to this section an amount greater than four months’ rent in any twelve-month period, or period of occupancy, whichever is shorter, from rent due to the owner. Such amount shall be computed on the basis of the highest monthly rent during the tenant’s occupancy or during the twelve-month period before the violation is repaired, whichever is shorter. Where the violation affects more than one unit of a multi-unit structure, or a portion of the structure reserved for the common use of tenants, the amount deducted for repairs for all affected tenants shall not exceed the total of four months’ rent due to the owner from all affected tenants. Failure to exercise any rights under this section in any twelve-month period shall not increase a tenant’s rights in any subsequent twelve-month period.
The owner may recover from the tenant any excessive amount deducted from the rent. The amount deducted shall be excessive to the extent that it exceeded four months’ rent as calculated pursuant to the preceding paragraph, or if it was unreasonable under all the circumstances. The criteria for unreasonableness shall include, but are not limited to, the alternatives available to the tenant at the time the violations were first reported, the urgency of the need to repair, and the quality and cost of the work done. Any excess deducted may be recovered in an action in contract, but not in an action for possession of the rental premises. The terms of such recovery may include an increase in rent for such future periods as the court may order. No owner may increase rents because of repairs made pursuant to this section, except pursuant to such a court order, and the provisions of section eighteen of chapter one hundred eighty-six shall apply to any such increase in rent.
The rights afforded tenants under this section shall not extend to conditions or violations caused by a tenant or by a person in the family or household of a tenant or by a business invitee or guest of a tenant. A tenant may not invoke the protection of this section if he has unreasonably denied the owner access to the dwelling unit and thereby prevented the owner from making necessary repairs.
In no case may the rights afforded a tenant under this section be construed to limit any other remedies available to him by law, or to impose a duty on him to repair, or to create or imply an assumption of any risk by the tenant; nor shall they relieve a landlord of any existing duty or liability under the state sanitary code or other applicable statutes, rules, regulations, by-laws, or ordinances.
Any provision of a residential lease or rental agreement whereby a tenant, lessee, or occupant enters into a covenant, agreement or contract, the effect of which is to waive the benefits of any provision of this section, shall be against public policy and void; except that a covenant in any lease of two years’ duration not counting any renewal periods, in which the tenant undertakes to make certain defined repairs or renovations in consideration for a substantially lower rent, shall not be against public policy nor void.
Chapter 111: Section 127M. Repealed, 1975, 615 Chapter 111: Section 127N. Actions by tenants against owners of residential premises; joinder of certain other persons as parties; liability; exception Section 127N. In actions brought under this chapter against owners of residential premises a tenant may, prior to a hearing on the merits, move to join the following persons as parties: any individual, trust or corporation, partnership, association or other person who, acting alone or with another, has the authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises, with or without record title or recorded interest. Such person shall not be joined, however, if its decision-making authority is derived solely from its position as a fiduciary if such person has never personally had any financial or possessory interest in the premises.
If the court finds that the owner may be unable for financial reasons or otherwise to perform any act or pay any liability that may be ordered if judgment is entered for the tenant, the court shall allow the motion joining any such person. The owner and any person so joined shall be jointly and severally liable for taking any action or paying any damages ordered by the court; provided, however, that the provisions of this section regarding the liability of persons other than owners shall not apply to two and three family owner-occupied residential premises.
Chapter 111: Section 127O. Conveyance of real estate with intent to evade nuisance provisions; penalty Section 127O. Any person who conveys a parcel of real estate with the intent to evade a notice or order, issued pursuant to sections one hundred and twenty-two to one hundred and twenty-seven B, inclusive, and sections one to three A, inclusive, of chapter one hundred and thirty-nine, section six to nine, inclusive, of chapter one hundred and forty-three, the state sanitary code, the state building code, or chapter forty A, shall be punished by a fine of not more than two thousand dollars or by imprisonment in a house of correction or jail for not more than one year, or both.
The amount of consideration or the relationship of the grantor to the grantee shall be evidence of such intent to evade a notice or order under the provisions of this section.
Chapter 111: Section 127P. Land covered by subdivision plan; application of state environmental code Section 127P. Whenever a person has submitted a subdivision plan, or a preliminary subdivision plan which is followed within seven months by a definitive plan, or a plan referred to in section eighty-one P of chapter forty-one, the land shown on such plan shall be governed by provisions of the state environmental code, or of the provisions of local board of health regulations which differ from said code, which are in effect at the time of first submission of said plan. Said provisions shall apply during the time such plan is being processed, including the time required to pursue or await the determination of an appeal relative to said plan. If such plan is approved, or if it is found such approval under the subdivision control law is not required, such provisions shall apply for a period of three years from the date of the endorsement of such approval or from the endorsement that approval under the subdivision control law is not required.
Chapter 111: Section 128. Repealed, 1954, 209, Sec. 1 Chapter 111: Section 128A. Filling of sites of demolished or removed buildings Section 128A. The board of health may adopt and, from time to time, revise regulations requiring that the site of a demolished or removed building or structure be levelled to uniform grade by a sanitary fill proper to prevent rodent harborage and other insanitary conditions.
Chapter 111: Section 128B to 128F. Repealed, 1963, 390, Sec. 2 Chapter 111: Section 128G. Farm labor camps; inspection; certificate; complaints Section 128G. The department shall annually inspect all farm labor camps as defined in the state sanitary code, or, in lieu thereof, may delegate any such annual inspection to a local board of health. When such inspection is so delegated, the local board of health shall make its inspection and file its report with the department within thirty days of notice of such delegation. If a farm labor camp after inspection conforms with the requirements of said code the department shall issue a certificate of occupancy which shall be posted upon one or more of the buildings comprising such camp. No such camp shall be opened in any year unless a current certificate of occupancy has been so posted. Any such certificate may be revoked for any violation of said code which the department after inspection determines exists. Complaints in writing of violations of the sanitary code, whether filed with the local board of health or the department, shall be investigated by the department as soon as practicable but in any event within thirty days after such filing. If any such complaint is filed with the local board of health said board shall forthwith forward said complaint to the department. The provisions of this section shall not be construed to limit or restrict the powers and duties of local boards of health.
Chapter 111: Section 128H. Migrant workers; educational and recreational opportunities; locomotion; visitation rights; regulations; injunctive relief Section 128H. The department of public health shall, as a part of its inspection of a site for a farm labor camp, determine what educational and recreational opportunities may be available for migrant workers, and shall, as far as is practical, encourage the development of such opportunities in cooperation with local and state agencies. The department shall protect the right of the migrant worker to enter and leave the premises of the employer during the period of his employment, and shall include in its certificate of occupancy a notification to the worker that such right exists, notwithstanding any contract provision to the contrary. A worker living in quarters apart from the living quarters of his employer shall have reasonable rights of visitation in his living quarters outside of regular working hours and the certificate of occupancy issued by the department shall include notification, in English and in Spanish, of said rights. The department shall establish, by promulgation of regulations, such minimum standards relating to the rights of visitation under this section as will ensure the adequate protection of said rights. The superior court shall have jurisdiction in equity upon petition brought by the department in the name of the commonwealth to restrain and enjoin violations of this, or of section one hundred and twenty-eight G, or regulations promulgated thereunder.
Chapter 111: Section 129. Removal or destruction of nuisance on conviction of owner Section 129. If a person is convicted on an indictment for a common nuisance injurious to the public health, the court may order the nuisance to be removed or destroyed at the expense of the defendant, under the direction of the board of health.
Chapter 111: Section 13. Certificate of result of analysis of narcotic drugs, poisons, drugs, medicines or chemicals; evidence Section 13. The analyst or an assistant analyst of the department or of the University of Massachusetts medical school shall upon request furnish a signed certificate, on oath, of the result of the analysis provided for in the preceding section to any police officer or any agent of such incorporated charitable organization, and the presentation of such certificate to the court by any police officer or agent of any such organization shall be prima facie evidence that all the requirements and provisions of the preceding section have been complied with. This certificate shall be sworn to before a justice of the peace or notary public, and the jurat shall contain a statement that the subscriber is the analyst or an assistant analyst of the department. When properly executed, it shall be prima facie evidence of the composition, quality, and the net weight of the narcotic or other drug, poison, medicine, or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine, or chemical analyzed, and the court shall take judicial notice of the signature of the analyst or assistant analyst, and of the fact that he is such. A signed certificate of drug analysis furnished by an analyst, assistant analyst or other designated employee of the Drug Enforcement Administration of the United States Department of Justice, which conforms with the requirements of this section, shall be prima facie evidence of the composition, quality, and when appropriate, the net weight of the narcotic or other drug, poison, medication or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine or chemical analyzed and the court shall take judicial notice of the signature of the analyst, assistant analyst or other designated employee and the fact that he is such.
Chapter 111: Section 130. Enjoining nuisance Section 130. The superior court, either before or pending a prosecution for a common nuisance affecting the public health, may enjoin the maintenance of such nuisance until the matter is decided or the injunction dissolved.
Chapter 111: Section 131. Compulsory examination of premises; complaint; warrant Section 131. If the board considers it necessary for preservation of life or health to enter any land, building or premises, or go on board a vessel within its town, to examine into and destroy, remove or prevent a nuisance, source of filth or cause of sickness, and the board, or any agent thereof sent for that purpose, is refused such entry, any member of the board or such agent may make complaint to a justice of any court of record or to a magistrate authorized to issue warrants, who may thereupon issue a warrant, directed to the sheriff or any of his deputies, to such member or agent of the board, or to any constable of such town, commanding him to take sufficient aid and at any reasonable time repair to the place where such nuisance, source of filth or cause of sickness complained of may be, and to destroy, remove or prevent the same, under the direction of the board.
Chapter 111: Section 132 to 142. Repealed, 1982, 95 Chapter 111: Section 14. Repealed, 1989, 610, Sec. 3 Chapter 111: Section 142A. Pollution or contamination of atmosphere; prevention; regulations; violation; enforcement Section 142A. The department of environmental protection, referred to in this section and in sections one hundred and forty-two B through one hundred and forty-two M, inclusive, as the department may from time to time adopt regulations, pursuant to this section and sections one hundred and forty-two B through one hundred and forty-two M, inclusive, to prevent pollution or contamination of the atmosphere. Whoever violates any such regulation or any permit or plan approval or order issued thereunder: (a) shall be punished for each violation by a fine of not more than twenty-five thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b) shall be subject to a civil penalty of not more than twenty-five thousand dollars for each violation. Each day or part thereof that such violation occurs or continues shall be a separate violation. The civil penalty may be assessed in an action brought on behalf of the commonwealth in the superior court. The commonwealth may also bring an action for injunctive relief in the superior court for any such violation, and the superior court shall have jurisdiction to enjoin such violation and to grant such further relief as it may deem appropriate.
Chapter 111: Section 142B. Metropolitan air pollution control district; establishment; composition; powers of department of environmental protection Section 142B. There is hereby established a metropolitan air pollution control district, to consist of the territory and waters comprised within the cities and towns of Arlington, Belmont, Boston, Braintree, Brookline, Cambridge, Canton, Chelsea, Dedham, Everett, Lynn, Malden, Medford, Melrose, Milton, Needham, Newton, Peabody, Quincy, Revere, Saugus, Somerville, Stoneham, Wakefield, Waltham, Watertown, Weymouth, Winchester, Winthrop, and Woburn, and such other cities and towns as may, after application for admission to the said district, be admitted thereto by the department; provided, that said district shall at all times be composed of contiguous territory.
The department shall control the pollution of the atmosphere within said district. The department may from time to time, after a public hearing, prescribe and establish, amend or repeal, rules and regulations to prevent pollution or undue contamination of the atmosphere within said district.
Personnel of the department may in the performance of their duties under this section enter and inspect any premises, providing said personnel receive the consent of the owner or person in control of such premises. A court, judge or justice authorized to issue warrants in criminal cases may, upon sworn testimony by said personnel that consent for such entry and inspection has been requested and refused, and upon further sworn testimony either (1) that a reasonable inspection of industrial or commercial premises is necessary to detect, prevent or warn against conduct or conditions which may threaten the public health, comfort and convenience by contributing to air pollution, or (2) that a reasonable nondiscriminatory public health inspection, of which the inspection of the particular premises is a part, has been authorized by the department and is being undertaken to detect, prevent or warn against conduct or conditions which may threaten the public health, comfort and convenience by contributing to air pollution, if satisfied that such testimony is true, issue a warrant identifying the particular premises and authorizing said personnel seeking the warrant to conduct a reasonable search of such premises during daylight hours if the premises is residential, or during operating hours if the premises is industrial or commercial. For the purposes of securing a warrant under this section, belief or knowledge regarding actual conduct or conditions in a particular premises shall not be necessary. Notwithstanding the provisions of any law to the contrary, any information, record, or particular part thereof, other than emission data, submitted to the department pursuant to this section, shall, upon request, be kept confidential and not considered to be a public record when it is deemed by the commissioner that such information, record, or report relates to secret processes, methods of manufacture, or production or that such information, record, or report if made public would divulge a trade secret.
This section shall not operate to abrogate any of the powers and duties, as defined by general or special law, of any agency or political subdivision of the commonwealth.
The department shall have power to order any person, corporation, or political subdivision having control of an air contamination source, other than an employee, to stop or abate violation of any of the rules and regulations adopted pursuant to this section or of any of the rules and regulations adopted under the provisions of section one hundred and forty-two A and standards adopted under section one hundred and forty-two A and regulations adopted under section one hundred and forty-two D. Said order shall inform the alleged violator in writing of his right to request, within ten days, a hearing under the provisions of chapter thirty A, but if no such request is made within ten days, said person, corporation, or political subdivision shall be deemed to have consented to the order. If said person, corporation, or political subdivision requests a hearing, the commissioner of environmental protection, in this section and section one hundred and forty-two E called the commissioner, or his designee, shall within a reasonable time hold a hearing under the provisions of said chapter thirty A. The commissioner may reissue such order as is warranted and all orders, permits, or other determinations of the commissioner, except those consented thereto, shall be subject to judicial review as provided in chapter thirty A. In addition, any person who participates in any public participation process required by the federal Clean Air Act, section 502 (b) (6), 42 U.
S.
C. section 7661a (b) (6), or any amended version thereof or any regulation enacted thereunder, with respect to the department’s final action on operating permits governing air emissions, and who has standing to sue with respect to the matter pursuant to federal constitutional law, may initiate an adjudicatory hearing pursuant to chapter thirty A, and may obtain judicial review, pursuant to chapter thirty A, of a final decision therein. Any person, corporation, or political subdivision violating any order of the department (a) shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than one year, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each such violation. The civil penalty may be assessed in an action brought on behalf of the commonwealth in any court of competent jurisdiction. For the purpose of this paragraph each subsequent day or part thereof of violation of such an order, whether such violation be continuous or intermittent, shall be construed as a separate and succeeding offense. The superior court sitting in equity, on petition of the department or any person authorized by the department shall have jurisdiction to enforce any such order and to restrain violations of any rules or regulations adopted pursuant to this section until such rules and regulations have been complied with.
The department may, for the purpose of conducting a continuing inventory of air pollution source emissions, require any person owning, operating, or having control of any air contamination source to register said source with the department and to supply such information pertaining to said source as the department may specify. Registration shall be on a form supplied by the department and shall be accomplished within a period of time specified by the department after public notice, provided said period of time shall be not less than thirty days.
Nothing in this section or in any rule or regulation adopted hereunder shall be construed as relieving, under any circumstances, any person, corporation, or political subdivision from responsibility or liability for any damages which may occur or for civil or criminal proceedings arising out of or as a result of any action of said person, corporation, or political subdivision, regardless of any action of the department, and persons other than the department shall not acquire actionable rights by virtue of such action.
The department shall maintain and operate such air sampling stations and devices; make or perform such routine and special examinations, inspections, observations, determinations, laboratory analyses, and surveys; maintain such records; and perform such other acts as it deems necessary to conduct an adequate air pollution control program within the metropolitan air pollution control district.
The commonwealth shall be reimbursed, as hereinafter provided, for all appropriations made by the general court and expended by the department for such purposes. The state treasurer shall issue his warrant requiring the assessors of the cities and towns of the metropolitan air pollution control district to assess a tax in the amount of the sums expended, one half of which shall be in proportion to their assessed valuations and one half of which shall be in proportion to their respective populations; provided, that any such city or town may in any year anticipate in whole or in part its assessment, and appropriate, raise, and deposit the amount thereof with the state treasurer, and any sum so deposited shall be credited against such assessment. The assessed valuations of the several cities and towns shall be the last preceding valuations made for purposes of apportioning the state tax.
Chapter 111: Section 142C. Future districts; formation Section 142C. Other air pollution control districts similar to that established by section one hundred and forty-two B may be formed upon approval of the department. Each such district shall be composed of two or more political subdivisions of the commonwealth and of contiguous territory. Cities or towns wishing to form such a district shall make joint application to the department, requesting the department to approve such district and to effect the control of air pollution therein. The powers, duties, and rights of the department in the exercise of air pollution control in such districts and the manner in which funds shall be made available to it shall be as provided in section one hundred and forty-two B.
Chapter 111: Section 142D. Air pollution control districts; standards and plans for implementation; establishment; periodic review; amendment; compliance with minimum federal standards Section 142D. The department, with the approval of the governor, may establish air pollution control districts compatible with such air quality control regions as may be designated by the secretary of the federal department of health, education and welfare under the provisions of the Air Quality Act of 1967, or any additions or amendments thereto. The department, with the approval of the governor, may add to or remove from air pollution control districts such cities and towns, and may establish or abolish such other air pollution control districts, as it may deem advisable and necessary to effect air pollution control in the commonwealth. The department may adopt, and from time to time amend, after public hearings, ambient air quality standards applicable to said districts and to other portions of the commonwealth, and shall adopt a plan for the implementation, maintenance and attainment of such standards. The powers, duties and rights of the department in the exercise of air pollution control in districts established under this section and the manner in which funds shall be made available to it shall be as provided in section one hundred and forty-two B.
From time to time the department shall review the ambient air quality standards and plan for implementation, maintenance and attainment of such standards adopted pursuant to this section and, after public hearings, shall amend such standards and implementation plan so as to minimize the economic cost of such standards and plan for implementation, provided, however, that such standards shall not be less than the minimum federal standards. The initial such amendments to such standards and implementation plan shall postpone the achievement dates for the primary and secondary ambient air quality standards to the latest dates permitted pursuant to federal law. Any compliance schedule, emission limitation, for new or existing facilities, order, rule, plan or regulation adopted pursuant to such standards or implementation plan shall be amended to conform to such amended standards and implementation plan upon petition of the owner or operator of a facility whose construction, maintenance or operation is affected by such compliance schedule, emission limitation, for new or existing facilities, order, rule, plan or regulation. The department shall, after opportunity for public hearing, issue a final order with respect to the subject matter of such petition within sixty days of the filing of the petition.
In any standard, implementation plan, compliance schedule, emission limitation, for new or existing facilities, order, rule, plan or regulation where the sulphur or ash content, or other chemical or physical characteristic of fuels or emissions therefrom is subject to consideration by the department, the department shall allow stack height, fuel switching and variations in plant operation to be used instead of controls on such sulphur or ash content or chemical or physical characteristic of such fuels or emissions therefrom if the owner or operator of the facility shall demonstrate to the satisfaction of the department that such controls are not necessary to achieve ambient air quality standards; provided, however, the department may impose conditions necessary to minimize public nuisance and adverse effects to the public health. If a variance or other permission granted by the department with respect to the sulphur or ash content, or other chemical or physical characteristic of fuels or emissions therefrom would otherwise prevent the achievement of primary or secondary federal ambient air quality standards within a time period required by the express language of a federal statute or regulation such variance or other permission shall be limited to the maximum time period allowed by federal law.
Chapter 111: Section 142E. Air pollution; preventing and controlling by departments, agencies, commissions, authorities and political subdivisions Section 142E. Any department, agency, commission, authority or political subdivision of the commonwealth having control and supervision over any building, installation or other property shall cooperate with the department of environmental protection in preventing and controlling pollution of the air insofar as the discharge of any matter from or by such building, installation or other property may cause or contribute to air pollution.
All departments, agencies, commissions, authorities and political subdivisions shall be subject to rules and regulations adopted by the department pursuant to sections one hundred and forty-two A to one hundred and forty-two C, inclusive. The department may serve upon any such department, agency, commission, authority or political subdivision an order to cease and desist from violating such rules or regulations. If objection to such order is made within ten days, the department, agency, commission, authority or political subdivision so objecting shall be entitled to a hearing before a person designated by the commissioner whose recommendations when adopted, or amended and adopted, by the department of environmental protection shall be a final decision within the meaning of section fourteen of chapter thirty A, subject to judicial review as therein provided. If such order is violated the department may file a bill of complaint in the superior court to enjoin such violation; provided, however, that in such a proceeding the sole questions in issue shall be (1) was the order of the department violated and (2) is the relief sought appropriate.
Chapter 111: Section 142F. Discharging excess fuel from aircraft into atmosphere; penalty; definitions Section 142F. Whoever, except in an emergency, allows excess fuel to be discharged into the atmosphere from an aircraft shall be punished by a fine of not less than two hundred and fifty dollars nor more than seven hundred and fifty dollars. As used in this section “excess fuel” shall mean that quantity of unused fuel which collects in “drain cans” from the engines of aircraft following the starting up or the shutting off of such engines, and “drain can” shall mean that receptacle located below or adjacent to an aircraft engine in which unused fuel collects or is collected when the engine is not in operation or just after the engine has been put into operation.
Chapter 111: Section 142G. Burning of Christmas trees restricted Section 142G. Notwithstanding the provisions of sections one hundred and forty-two A and one hundred and forty-two B, any person may burn Christmas trees during the period from December twenty-sixth to January seventh in each year, provided that said person obtains a permit from the head of the fire department of the city or town wherein such burning shall take place and provided further that such burning is conducted under the supervision and control of said head of the fire department.
Chapter 111: Section 142H. Ceremonial bonfires restricted; permits Section 142H. The city council of a city with the approval of its mayor, or the board of selectmen or town council of a town, may authorize the fire department of such city or town to issue not more than one permit in any one year for a ceremonial bonfire in such city or town. Said ceremonial bonfire shall mark the observance of a significant municipal, state, or national event, and any such ceremonial bonfire shall be under the continuous supervision of the fire department. A permit for such a ceremonial bonfire shall be issued only to a municipal department or a civic, fraternal or veterans organization within such city or town. Only wood which has not been painted, impregnated, or otherwise treated with any foreign substance shall be permitted to burn in ceremonial bonfires. No ceremonial bonfire shall burn for more than twelve hours.
Chapter 111: Section 142I. Bonfires from July 2 to July 6 authorized Section 142I. Notwithstanding any provision of sections one hundred and forty-two A and one hundred and forty-two B, and in addition to the ceremonial bonfires permitted under the provisions of section one hundred and forty-two H, any civic, fraternal, veteran, community, or business organization may build and ignite bonfires under the supervision and control of the fire department of the city or town in which such burning takes place during the period from July second to July sixth in each year. A permit for such bonfire shall be obtained by such organization from the head of the fire department upon his determination that such organization will conduct such burning in a proper and responsible manner.
Chapter 111: Section 142J. Repealed, 1998, 490, Sec. 8 Chapter 111: Section 142K. Motor vehicle emissions standards; late models Section 142K. (a) In addition to the provisions of section one hundred and forty-two J authorizing the department of environmental protection to establish and administer setting motor vehicle emissions standards, for model years beginning with the model year nineteen hundred and ninety-three or as soon thereafter as allowable under federal law, the department of environmental protection, hereinafter referred to as the department, shall adopt motor vehicle emissions standards based on the California’s duly promulgated motor vehicle emissions standards of the state of California unless, after a public hearing, the department establishes, based on substantial evidence, that said emissions standards and a compliance program similar to the state of California’s will not achieve, in the aggregate, greater motor vehicle pollution reductions than the federal standards and compliance program for any such model year. The department shall publicly issue detailed written findings before and after holding a public hearing pursuant to this paragraph and said hearing shall be subject to the provisions for public hearings contained in chapter thirty A. A decision not to adopt said standards shall apply as long as the federal standards and the standards of the state of California do not change. Emissions standards adopted pursuant to this section shall include the one hundred thousand mile certification standards of the state of California.
Notwithstanding any other provision of this section, the department may postpone, for no more than one year, the adoption of said motor vehicle emission standards if the department makes a written determination that none of the following states is likely to adopt California’s motor vehicle emission standards for model year nineteen hundred and ninety-three pursuant to the requirements of 42 USC 7507: Connecticut, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The department may further postpone adopting said motor vehicle emission standards for an additional year if the department makes a written determination that none of the aforesaid listed states is likely to adopt California’s motor vehicle emission standards for model year nineteen hundred and ninety-four.
(b) No corporation, person or other entity shall sell or offer for sale a motor vehicle or motor vehicle engine, manufactured during or after the first model year that the motor vehicle emissions standards specified in subsection (a) are in effect which is intended for use primarily in the commonwealth and which has not been certified according to regulations promulgated by the department; provided, however, that reasonable exemptions may be made by the department for: (1) out-of-state registered vehicles transferred by inheritance, or by decree of divorce, dissolution or legal separation entered by a court of competent jurisdiction; (2) vehicles purchased by nonresidents prior to establishing residency in the commonwealth; and (3) used vehicles, as defined by regulations of the department, which were originally purchased in states with emission standards different from the standards of the commonwealth. Upon the granting of an exemption from the provisions of this section, a motor vehicle shall forever be exempt. The department may promulgate regulations including, but not limited to, prohibitions on the purchase, importation, delivery, receipt, rental, leasing or acquisition of motor vehicles or motor vehicle engines not in compliance with the provisions of this section.
(c) On or before August first, nineteen hundred and ninety, the department shall promulgate regulations to ensure maximum motor vehicle pollution reductions pursuant to the provisions of this section including, but not limited to: engine family certification standards; after-market parts certification; one hundred percent assembly line functional testing; two percent manufacturer quality audits; post assembly line pre-sale new vehicle testing; dealership inspection; in-use testing; anti-tampering protections; on-board diagnostics, and warranty and recall requirements. The promulgation of these regulations may be postponed in accordance with the provisions of subsection (a) concerning postponement but, in no event shall the department promulgate regulations later than June first, nineteen hundred and ninety-two.
(d) The manufacturer’s warranty for passenger vehicles certified pursuant to subsection (a) shall extend, at a minimum, for three years or fifty thousand miles for emissions related parts with a retail cost of less than three hundred dollars and seven years or seventy thousand miles for emissions related parts with a retail cost of three hundred dollars or more. The department shall periodically adjust said three hundred dollar repair level by the percentage change in the consumer price index, as published by the United States Bureau of Labor Statistics. For the model year nineteen hundred and ninety-three, if the motor vehicle emissions standards as specified in subsection (a) are in effect, manufacturers shall report to the department all repairs made under warranty if the number of repairs on a specific model, for a specific emissions part, exceeds four percent of the total number of the model sold. For model year nineteen hundred and ninety-four and subsequent model years, if the motor vehicle emissions standards as specified in subsection (a) are in effect, manufacturers shall report to the department all repairs made under warranty if the number of repairs on a specific model for a specific emissions part exceeds two percent of the total number of the model sold.
(e) Any corporation, person, municipality or other entity that violates the requirements of this section or any regulation adopted hereunder shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than one year or both such fine and imprisonment and shall be subject to a civil penalty of not more than twenty-five thousand dollars for each such violation. Each day that a violation for any motor vehicle continues shall be a separate offense. The civil penalty may be assessed in an action brought on behalf of the commonwealth in any court of competent jurisdiction.
The penalties imposed hereunder shall be in addition to all other enforcement powers of the department under applicable law.
(f) The provisions of this section are intended as minimum requirements of the commonwealth’s motor vehicle emissions program and shall not limit the department’s authority to adopt and implement the stricter air quality regulations allowed under any other federal and state law.
(g) To decrease the impact of out-of-state generated auto emissions on the air quality of the commonwealth, the department is hereby directed to work in cooperation with other states to facilitate Massachusetts’ and other states’ adoption of more stringent motor vehicle emissions control programs. The department is authorized to work in cooperation with and enter into contracts with other states in generating and reviewing certification, testing, recall and warranty data so long as such cooperation does not limit the effectiveness of the program established by this section and the department may adopt other states’ certification results by reference.
(h) The responsibilities hereunder shall be in addition to all other responsibilities imposed by any other general or special law or rule or regulation.
Chapter 111: Section 142L. Agricultural burning Section 142L. Notwithstanding the provisions of sections one hundred and forty-two A to one hundred and forty-two E, inclusive, the burning of tree prunings, diseased plant materials, and brush from land clearing operations, which are the direct result of the normal commercial pursuit of agriculture, as defined in section one A of chapter one hundred and twenty-eight, shall be allowed subject to the permission of the local fire chief which need not be in writing. Said permission shall be based solely upon whether or not appropriate meteorological conditions exist to ensure safe burning.
Chapter 111: Section 142M. Motor vehicle emissions inspection and repair; definitions; rules and regulations; inspection facilities; waivers; quality assurance program; violations Section 142M. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:“Commissioner”, the commissioner of environmental protection.
“Department”, the department of environmental protection.
“Dynamometer”, a device which applies a load to a vehicle’s drive wheels while operating in a stationary, secure position to simulate actual driving conditions for an emissions inspection.
“Electronic network”, or “network”, a computerized communication system including, but not limited to, the computers, communications devices and software for such system which links emissions analyzers, the department’s emissions database, and the registry of motor vehicles’ registration database and which allows the department and the registry to store and analyze data on motor vehicle emissions inspections, motor vehicles and emissions inspectors.
“Emissions analyzer”, a device which measures the volume of air pollutants and gases in motor vehicle exhaust.
“Emissions inspection”, a component of the periodic staggered inspection of motor vehicles required by section 7A of chapter 90 including, but not limited to, the inspection of a motor vehicle’s emissions control equipment, including its computer system relating to emissions, the measurement of air pollutant concentrations or mass in vehicle exhaust with an analyzer while the vehicle is operated on a dynamometer, the verification of vehicle fuel system integrity and the entry of a complete emissions inspection record in the registry’s database for the vehicle being inspected, as prescribed by the department in regulations and performed by an emissions inspector.
“Emissions inspection certificate” or “inspection certificate”, a printed statement, instrument or device in a form prescribed by the registrar, in consultation with the commissioner, which provides inspection information and facilitates effective enforcement of the emissions inspection and maintenance requirements of this section and chapter 90.
“Emissions inspection facility”, a facility, licensed by the registrar under section 7W of chapter 90 for conducting motor vehicle emissions inspections and other related duties.
“Emissions inspector”, a properly trained person, licensed by the registrar and certified by the department and meeting the department’s requirements for performing motor vehicle emissions inspections.
“Emissions repair technician”, a person registered with the department and meeting departmental training standards for diagnosing and repairing motor vehicles which fail an emissions inspection.
“Emissions inspection and maintenance program” or “I&M program”, a component of the periodic staggered motor vehicle inspection required by section 7A of chapter 90 which shall include motor vehicle emissions inspections, including accurate and effective testing of vehicles, using emission testing equipment, visual and functional tests of evaporative systems, rigorous compliance and enforcement activities and quality assurance and quality control procedures which promotes effective emissions repair and maintenance of the motor vehicle.
“Evaporative emissions test”, a test administered to determine whether there are leaks in a vehicle’s fuel or evaporative control system, such as purge functions of a vapor canister.
“Emissions waiver certificate”, a written statement, instrument or device indicating that the requirement of compliance with the emissions standards and criteria for the emissions component of the motor vehicle inspection program has been waived for a particular motor vehicle.
“On-road test”, a field test designed and conducted to assess the emissions of motor vehicles.
“Registrar”, the registrar of motor vehicles.
“Registry”, the registry of motor vehicles.
“Tampering”, (i) the act of removing or rendering inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under section 203(a) of the federal Clean Air Act prior to its sale and delivery to the ultimate purchaser; or (ii) for any manufacturer or dealer knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser.
“Vehicle identification number” or “VIN”, the unique number assigned to each vehicle by the vehicle manufacturer identifying specific vehicle characteristics, such as make, model, model year, pollution control devices and the particular vehicle itself.
(b) Pursuant to this section, the department shall develop the standards, requirements and rules and regulations for the emissions component of the periodic staggered inspection program established pursuant to section 7A of chapter 90. It shall be the responsibility of the department, under authority of this chapter, to provide the direct primary oversight of the operational and environmental aspects of the emissions component of the inspection program. Nothing in this section shall be construed to require the leasing or purchasing of a dynamometer, an emissions analyzer or any necessary computer hardware or software by an emissions inspection facility from the network contractor; provided, however, the network contractor shall provide access to the data acquisition and management network to any emissions inspection facility who purchases or leases a dynamometer, emissions analyzer or necessary computer hardware or software through sources other than the network contractor so long as such equipment complies with testing equipment specifications as established by the commissioner in consultation with the registrar. Any requests for proposals for contracting with a network contractor shall require that the commissioner, in consultation with the registrar, shall have oversight over the charge assessed by the network contractor for access to the data acquisition and management network to emissions inspection facilities who purchased equipment through sources other than the network contractor; provided, however, that notwithstanding the provisions of this section, the commissioner and the registrar may require emissions inspection facilities to obtain, lease or purchase such equipment from the network contractor upon the determination that allowing emissions inspection facilities to lease or purchase such equipment through sources other than the network contractor would result in an increase in the inspection fee. Said determination shall be made by the commissioner and registrar, in consultation with the secretary of administration and finance, only upon a finding that no feasible option exists by which emissions inspection facilities may obtain such equipment through sources other than the network contractor without increasing the inspection fee. The amount of said fee for said inspection shall be uniform statewide. It shall be the responsibility of the registrar, under authority of chapter 90, to license inspection facilities and inspectors and to register vehicles complying with the inspection program requirements and to conduct audit and enforcement activities related thereto. The department, on behalf of the commonwealth, shall be responsible for submitting all appropriate and required program regulations on the motor vehicle emissions component of the inspection and maintenance program and applicable revisions to the state implementation plan to the United States Environmental Protection Agency, in accordance with the requirements of the federal Clean Air Act. The department, in conjunction with the registry, may develop and implement a demonstration or pilot of the motor vehicle emissions inspection program or elements of such program to evaluate the effectiveness of such program, or elements of such program, in successfully reducing air contaminants emitted by motor vehicles in the commonwealth as required by federal law.
The emissions component of the inspection program shall be required statewide, shall be conducted on a staggered basis throughout the year and shall be required of each subject motor vehicle at least every two years unless otherwise exempted or specified by the department. The commissioner shall establish rules and regulations specifying which motor vehicles shall be subject to the motor vehicles emissions component of the inspection program.
The commissioner shall establish rules and regulations establishing standards and criteria for motor vehicle emissions inspections, giving consideration to the United States Environmental Protection Agency’s performance standards for the enhanced emissions inspection and maintenance program and the level of emission reductions necessary to achieve and maintain federal and state ambient air quality standards. Such standards and criteria shall include, but not be limited to, a requirement to test motor vehicle emissions for hydrocarbons, carbon monoxide and oxides of nitrogen. The standards and criteria may be different for different model years and types of vehicles.
The commissioner, in consultation with the registrar, shall establish rules and regulations relative to testing equipment specifications, including emissions analyzers, quality assurance and quality control procedures for testing equipment, calibration gases, failure rates, emission standards, testing procedures, data collection and data analysis, and program evaluation.
The registrar, in consultation with the commissioner, shall determine the number and location of inspection facilities necessary for the success of the emissions component of the inspection program while considering consumer convenience and cost and achieving an equitable distribution across the commonwealth. Said registrar shall report to the joint committee on public safety and the house and senate committees on ways and means the actual number and location of inspection facilities on or before July 1, 1998. The commissioner may establish criteria and a process to select qualified applicants who shall be authorized to participate in the emissions component of the inspection program. In no event shall the use of state-owned or municipal-owned property as a site for an inspection facility or a test center relieve the owner or operator of the inspection facility from paying to the municipality an amount equal to the local property taxes due if such property was not state-owned or municipal-owned.
The department and the registry, in implementing the requirements of this section, shall acquire personnel, purchase equipment and procure services necessary to achieve the objectives hereunder including, but not limited to, the following: (i) inspection of motor vehicles; (ii) data acquisition and data management; (iii) quality control and quality assurance; (iv) on-road testing; (v) program evaluation; (vi) public communications; (vii) research and development; and (viii) any other purposes related to the development and implementation of the motor vehicle emissions component of the inspection program.
The technical and performance specifications of any equipment determined by the department to be necessary and required in the implementation of the provisions of this section, shall be reevaluated periodically as to its useful life, flexibility and applicability as to changing technological conditions and continued effectiveness in the emissions inspection and maintenance program.
The department and the registry shall contract with a private entity demonstrating an ability to manage emissions programs, hereinafter referred to as the network contractor, to develop and manage the network and inspection facilities of said motor vehicle inspection program. The department and the registry shall, as a term and condition of such contract, require the network contractor to: (i) acquire and distribute inspection facility equipment; and (ii) acquire such equipment and the associated maintenance services from one or more suppliers at discount prices through volume purchasing. Such contract shall also include performance standards which shall pertain to the motor vehicle inspection program goals as set forth in the commonwealth’s state implementation plan. Such contract shall also require the network contractor to establish at least five test centers to be evenly distributed across the commonwealth for research, training, repair assistance and for any other purposes related to the implementation and success of the emissions component of the inspection program. The network contractor shall be responsible for achieving such goals as set forth in regulations, policies and contract terms established by the department and registry. Such contract shall require an extensive public education and awareness program prior to the implementation of the motor vehicle inspection program. Such public education program shall include, but not be limited to, establishing and maintaining a comprehensive consumer outreach campaign concerning air quality, sources of pollutants, relevant aspects of automobile maintenance and other topics related to the motor vehicle inspection requirements of chapter 90 and this chapter. Such consumer outreach campaign shall include a consumer hotline to receive motorists’ complaints and to answer questions regarding the inspection procedures, repair information and other related inspection issues.
(c) The commissioner shall establish rules and regulations implementing the motor vehicle emissions component of the inspection program required by section 7A of chapter 90. Such rules and regulations may reflect a phased-in schedule for the motor vehicles subject to the emissions component of the inspection program; provided, however, that such phase-in shall not begin prior to July 1, 1998. The department may continue to implement the motor vehicle emissions inspection program established pursuant to section 142J of chapter 111 while phasing-in the new requirements of this section.
The department shall notify the registrar as to which motor vehicles shall be subject to the motor vehicle emissions component of the inspection program. Said registrar shall give reasonable notification in the form prescribed by said registrar, to the owners of motor vehicles subject to the emissions inspection indicating which emissions inspection procedures shall be required. The registrar shall not issue a registration or, if such registration has already been issued, shall suspend or not renew the registration of any motor vehicle which does not comply with the provisions of this section or any regulation promulgated hereunder.
The commissioner may establish regulations for exempting certain motor vehicles from some or all of the requirements of this section. The following motor vehicles may be exempt from the provisions of this section and may require alternative test procedures: (i) any motor vehicle the model year of which is 15 years before the year in which the inspection occurs; (ii) any motor vehicle or class of motor vehicle that is exempted by regulation or policy by the department because the vehicle or class presents a prohibitive inspection problem or is inappropriate for inspection; (iii) any motor vehicle operated exclusively by electric power; and (iv) for one inspection cycle only, any motor vehicle two model years old or less at the time the vehicle is due for inspection.
The commissioner and the registrar shall establish procedures under which fleet operators of fleets of 12 or more vehicles that are centrally fueled and maintained may be authorized under such program to conduct inspections and maintenance activities regarding such vehicles, subject to such audit, review and enforcement under this section as the commissioner and registrar deem appropriate.
The motorist presenting a motor vehicle for an emissions inspection shall pay a fee to the inspection facility pursuant to section 7A of chapter 90.
The registrar shall establish certification, training and continuing education requirements for the safety component of the inspection program. The commissioner shall establish certification, training and continuing education requirements for the emissions component of the inspection program. Such requirements shall be a precondition to the issuance of a license to conduct motor vehicle inspections issued by the registrar. Any person conducting an official motor vehicle inspection without having received such license and certification shall be subject to the penalties set forth in subsection (f).
The commissioner shall take steps to ensure that the capability exists in the repair industry to repair motor vehicles which fail the emissions component of the inspections required herein. Such steps shall include, but not be limited to, training and continuing education for emissions repair technicians and the involvement of vocational or technical schools and various members and sectors of the automobile and automotive repair industry. The commissioner shall establish procedures to register emissions repair technicians and to conduct a performance monitoring program of repair technicians, emissions inspection facilities and emissions inspectors. Such performance monitoring may include, but not be limited to, collection and evaluation of data on repairs. The provision of this paragraph shall not prevent any person not so registered from performing emissions repairs.
The department and the registry may conduct on-road testing of motor vehicles, including trucks and buses, for research, development, inspection or enforcement purposes. On-road testing may include identification of motor vehicles which would pass the emissions inspection and motor vehicles which would fail the emissions inspection. The on-road testing program may include, but shall not be limited to: (i) the use of portable or remote sensing equipment to measure pollutants of a moving motor vehicle; (ii) evaluation of the use of such equipment, alone or with other analytical information, equipment or techniques, as a supplement or alternative to, replacement of or enforcement of the emissions inspection; and (iii) the establishment of test centers to research and evaluate the accuracy and effectiveness of various emissions testing and enforcement methods.
The department and the registry shall create or enter into contracts to create an electronic network linking the department, emissions inspection equipment, the registry and any contractor to the department. Such electronic network shall facilitate implementation, evaluation and enforcement of the emissions inspection and maintenance program by the department and the registry.
The registrar shall establish protocols for communication on the electronic network. At its discretion, the registrar may grant emissions inspection equipment, inspection facilities and inspectors access to the electronic network. The commissioner and the registrar shall require emissions inspection equipment to communicate with the commissioner through the electronic network. The registrar, in consultation with the commissioner shall establish procedures and requirements for connecting and disconnecting emissions inspection equipment and inspection facilities and for granting emissions inspectors access to the electronic network.
The commissioner, in consultation with the registrar, may adopt rules and regulations to implement an emissions inspection and maintenance program for diesel-fueled motor vehicles.
The commissioner, in consultation with the registrar, shall promulgate rules and regulations to establish a program for the issuance of emissions waiver certificates; provided, however, that such rules and regulations shall include eligibility standards and criteria, a procedure whereby motorists may petition for emissions waiver certificates and a notification process to inform motorists of the emissions waiver certificate program and the emissions waiver certificate petition process. Such eligibility standards and criteria shall include, but not be limited to, provisions for the issuance of emissions waiver certificates to any owner of a motor vehicle who displays satisfactory proof that such motor vehicle has undergone emissions-related repairs at a cost that exceeds a maximum cost threshold to be determined by the commissioner and the registrar. The commissioner shall report on the emissions waiver certificate program to the joint committees on public safety and the house and senate committees on ways and means on or before July 1, 1998.
(d) The commissioner and the registrar shall establish programs for public information and consumer protection. The commissioner shall establish procedures and requirements for the network contractor to ensure maximum convenience to the motorist.
Each emissions inspection facility shall distribute information to inform the public about the requirements, benefits and other consumer-related matters of the emissions inspection and maintenance program and any other information useful to the better understanding and facilitation of the emissions inspection to the consumer as directed by the commissioner.
Each inspection facility, while performing the emissions inspection, shall be capable of providing consumer protection by generating data on warranty-related recalls in a form and manner prescribed by the commissioner and any other related information deemed necessary by the commissioner. In addition, the commissioner shall establish procedures to advise motorists whose vehicles are subject to either a voluntary emissions recall or remedial action plan, as defined in and pursuant to section 207 of the federal Clean Air Act, to obtain the appropriate repairs.
(e) The commissioner, in consultation with the registrar, shall develop, establish and implement a quality control program to ensure the accuracy and integrity of the emissions component of the inspection program. Such quality control program may include, but not be limited to, procedures for: (i) calibrating, operating and maintaining emissions inspection equipment; (ii) documenting the results from the performance of such calibration, operation and maintenance; and (iii) transmitting such documentation to the department.
The registrar, in consultation with the commissioner, shall develop, establish and implement an on-going quality assurance program to discover and prevent fraud, waste and abuse in the emissions component of the inspection program. The quality assurance program shall include, but not be limited to, overt and covert audits of emissions inspection facilities and emissions inspectors, audits of data from emissions inspection facilities, examination of emissions inspection equipment, evaluation of quality control records and procedures and audits of consumer complaints and responses to such complaints.
(f) The commissioner and the registrar or their designees shall have the authority to enforce any provision of this section and may establish rules and regulations pursuant to such authority. Such enforcement authority shall permit officers or agents of the department or the registry to enter the premises of any motor vehicle inspection facility or any contractor to protect the public health and the environment, implement the quality control and quality assurance requirements of this section and for any other reasonable purpose related to implementation and enforcement of the motor vehicle inspection and maintenance program as determined by the commissioner and the registrar.
The registrar shall establish rules and regulations prohibiting any person from issuing an inspection certificate for a motor vehicle that has not been inspected in accordance with, or is not in compliance with, the standards and criteria for motor vehicle inspections as required in this section. The registrar also shall establish rules and regulations prohibiting any person from failing to issue a certificate for a motor vehicle that has been inspected in accordance with, and in compliance with, the standards and criteria for motor vehicle inspections required in this section if such motor vehicle meets the applicable standards and criteria. No person shall alter, falsify or counterfeit an emissions inspection certificate.
The registrar may deny access to the electronic network to any inspection facility or emissions inspector that said registrar has reason to believe is not performing inspections in compliance with the registry’s rules and regulations adopted pursuant to this section or under the authority of chapter 90.
Tampering with any emissions control device or system is hereby prohibited. No person shall take any action that has the effect of causing a motor vehicle to no longer comply with federal law or with the applicable standards and criteria for the motor vehicle emissions inspection and maintenance program or with requirements for motor vehicle registration. Nothing in this section shall be construed to prevent the temporary alteration of equipment for motor vehicle repair or for the quality assurance program established pursuant to subsection (e).
The commissioner and the registrar shall have the authority to order any person, inspection facility or contractor to stop or abate a violation of any rule or regulation adopted pursuant to this section or chapter 90.
Any person who violates any of the provisions of the second or fourth paragraph of this subsection and any person or facility licensed or required to be licensed pursuant to section 7W of chapter 90 who violates any requirement or regulation adopted pursuant to this section or any certificate or order issued thereunder shall: (i) be punished for each violation by a fine of not more than $25,000 or by imprisonment for not more than one year, or both such fine and imprisonment; or (ii) be subject to a civil penalty of not more than $25,000 for each such violation. Each day or part thereof that such violation occurs or continues shall be deemed a separate violation. The civil penalty may be assessed in an action brought on behalf of the commonwealth in the superior court. The commonwealth also may bring an action for injunctive relief in the superior court for any such violation, and the superior court shall have jurisdiction to enjoin such violation and to grant such further relief as it may deem appropriate.
Chapter 111: Section 142N. Fossil fuel-fired electric generation facilities; uniform performance standards Section 142N. For the purpose of preventing, mitigating, or alleviating impacts on the resources of the commonwealth and to the health of its citizens from pollutants emitted by fossil fuel-fired electric generation facilities serving retail customers in the commonwealth, the department of environmental protection shall, in consultation with the office of the attorney general and the department of telecommunications and energy, promulgate rules and regulations to adopt and implement for fossil fuel-fired electric generation facilities uniform generation performance standards of emissions produced per unit of electrical output on a portfolio basis for any pollutant determined by the department of environmental protection to be of concern to public health, and produced in quantity by electric generation facilities. The department of environmental protection shall have said uniform performance standards for at least one pollutant in effect on, but not before, May 1, 2003, unless three or more other northeastern states enact similar standards before that date, in which case the department of environmental protection may adopt such standards prior to May 1, 2003. The department of environmental protection shall issue annually, by March first of each year, an annual report detailing the implementation and compliance of said program, its standards, and its companion rules and regulations.
Chapter 111: Section 142O. Motor vehicle fuel dispensing facilities; stage II vapor recovery systems; operation and standards Section 142O. (a) As used in this section, the following words shall have the following meanings, unless the context clearly requires otherwise:“Motor vehicle fuel dispensing facility”, a motor vehicle fuel facility which dispenses gasoline directly to motor vehicles.
“Stage II system”, a vapor collection and control system specifically designed for the purpose of controlling vapors during the direct dispensing of motor vehicle fuel to a motor vehicle.
(b) The department shall notify a motor vehicle fuel dispensing facility owner and operator, in writing, within 30 days of an inspection, when the department determines that a violation of its stage II system rules has occurred.
(c) The department shall not promulgate or enforce a requirement that a motor vehicle fuel dispensing facility with a defective component in the stage II system shall cease dispensing fuel at the facility after the discovery of the defective component if: (i) the facility operator marks the defective component “out of order”; (ii) the facility operator takes the component out of service until repaired or replaced; and (iii) the remainder of the stage II system is operating in accordance with the General Laws and the regulations of the department of environmental protection. This subsection shall not prohibit the department from promulgating or enforcing a requirement that a motor vehicle fuel dispensing facility shall cease dispensing fuel after failing the annual compliance test of the stage II system until such time as the system passes the compliance test.
(d) The department shall not promulgate or enforce a requirement that less than 2 responsible individuals or officials shall certify, subject to criminal sanctions or civil penalties, all Stage II system compliance requirements at a dispensing facility where the facility is owned by 1 party, leased or managed by another independent party and both parties have separate Stage II compliance responsibilities.
(e) The department shall establish and implement ongoing programs to communicate the department’s Stage II system standards and operating requirements to motor vehicle fuel dispensing facility owners and operators.
Chapter 111: Section 143. Trade or employment attended with noisome and injurious odors; assignment of places; prohibition; appeal Section 143. No trade or employment which may result in a nuisance or be harmful to the inhabitants, injurious to their estates, dangerous to the public health, or may be attended by noisome and injurious odors shall be established in a city or town except in such a location as may be assigned by the board of health thereof after a public hearing has been held thereon, subject to the provisions of chapter forty A and such board of health may prohibit the exercise thereof within the limits of the city or town or in places not so assigned, in any event. Such assignments shall be entered in the records of the city or town, and may be revoked when the board shall think proper.
The department of environmental protection shall advise, upon request, the board of health of a city or town previous to the assignment of places for the exercise of any trade or employment referred to in this section, and any person, including persons in control of any public land, aggrieved by the action of the board of health in assigning certain places for the exercise of any trade or employment referred to in this section may, within sixty days, appeal from the assignment of the board of health to the department and said department may, after a hearing rescind, modify or amend such assignment.
Notwithstanding any provision in section one hundred and twenty-five A of this chapter, this section shall apply to the operations of piggeries.
Chapter 111: Section 144. Revocation of location assignment; removal of nuisance Section 144. If a place or building so assigned becomes a nuisance by reason of offensive odors or exhalations therefrom, or is otherwise hurtful or dangerous to the neighborhood or to travelers, the superior court may, on complaint of any person, revoke such assignment, prohibit such further use of such place or building, and cause the nuisance to be removed or prevented.
Chapter 111: Section 145. Damages Section 145. Whoever is injured in the comfort or enjoyment of his estate by such nuisance may recover in tort the damages sustained thereby.
Chapter 111: Section 146. Orders of prohibition; service Section 146. Orders of prohibition issued under section one hundred and forty-three shall be served by an officer qualified to serve civil process upon the occupant or person having charge of the premises where such trade or employment is exercised, and the board shall take all necessary measures to prevent such exercise. Whoever refuses or neglects for twenty-four hours thereafter to obey the same shall forfeit not less than fifty nor more than five hundred dollars.
Chapter 111: Section 147. Appeal from order; notice; trial Section 147. Whoever is aggrieved by an order made under section one hundred and forty-three or one hundred and fifty-two may, within three days after service of the order upon him, give written notice of appeal to the board or department of environmental protection, and file a petition for a jury in the superior court in the county where the premises affected are located, and, after notice to the board or department of environmental protection, may have a trial in the same manner as other civil cases are tried by jury. If by mistake of law or fact or by accident he fails within said three days to apply as aforesaid, and if it appears to the court that such failure was caused by such mistake or accident, and that he has not, since the service of such order upon him, violated it, he may within thirty days after the service of the order upon him apply for a jury.
Chapter 111: Section 148. Exercise of trade or employment during pendency of proceedings Section 148. Such trade or employment shall not be exercised contrary to the order while such proceedings are pending, unless specially authorized by the board; and if so specially authorized all further proceedings by the board shall be stayed while such proceedings are pending. Upon any violation of the order, unless specially authorized as aforesaid, the proceedings shall forthwith be dismissed.
Chapter 111: Section 149. Verdict; effect Section 149. The verdict may alter, affirm or annul the order, and shall be returned to the court for acceptance; and if accepted, shall have the authority and effect of a valid order of the board, and may also be enforced by the court in equity.
Chapter 111: Section 14A. Rheumatic fever; treatment of patients Section 14A. The department shall purchase and distribute to the boards of health in cities and towns penicillin and such other prophylactic drugs as the commissioner may approve for the treatment of persons recovering from rheumatic fever, and said local board of health may furnish such drugs free of cost to any such person when they are prescribed for him by his physician, provided that such person, or the person bound by law to support him, is unable to pay for such drugs.
Chapter 111: Section 15. Services for division of animal health Section 15. The department may perform for the division of animal health, upon such terms and conditions as may be agreed upon, such services in its laboratory as may be necessary in the examination of materials from animals suspected of being infected with glanders, tuberculosis, rabies or other diseases of domestic animals.
Chapter 111: Section 150. Damages and costs Section 150. If the order is affirmed by the verdict, the board shall recover costs to the use of the town; if it is annulled and the petitioner has not been specially authorized by said board to exercise such trade or employment during the proceedings, he shall recover damages and costs against the town; if it is annulled and the petitioner has been specially authorized as aforesaid, or if it is altered, he shall not recover damages, and the court may render judgment for costs in its discretion.
Chapter 111: Section 150A1/2. Standards and criteria for siting of facilities; rules and regulations Section 150A1/2. The department of environmental protection, in cooperation with the department of public health, shall promulgate rules and regulations for the siting of facilities pursuant to the provisions of section one hundred and fifty A. Said rules and regulations shall establish site suitability standards and criteria and shall include, but not be limited to, the following considerations:(1) the location, nature and extent of any existing or potential sources of public or private drinking water supplies in relation to the site, including the recharge area of a sole source aquifer;(2) the relationship of the site to groundwater elevations;(3) the proximity of wetlands, as defined in section forty of chapter one hundred and thirty-one;(4) the proximity of surface water bodies;(5) the proximity of flood plains;(6) the nature and extent of residential areas in proximity to the site;(7) the availability and suitability of access roads to the site;(8) whether areas adjacent to the proposed site have been previously used for solid waste disposal;(9) the potential for adverse impact on air quality;(10) the potential for creation of a nuisance from noise, windblown litter, or the proliferation of rodents, flies or other vermin;(11) the potential for the adverse public health and safety impacts;(12) the potential impact on agricultural uses;(13) the potential adverse impact on wildlife or on wildlife habitat;(14) the potential impact of increased traffic volume on roads to the site;(15) the extent to which existing solid waste disposal facilities are located within a municipality. Site assignments for new facilities are preferred in municipalities without existing facilities;(16) the extent to which the solid waste disposal needs of the municipality in which the site is sought are met as a member of a regional refuse disposal district. Site assignments in municipalities not participating in regional refuse disposal districts are preferred.
(17) the potential adverse impacts on communities within one-half mile of the proposed site including the potential adverse impacts on the considerations stated within this section for which site suitability standards and criteria are established.
Chapter 111: Section 150A. Solid waste disposal facilities; maintenance and operation; applications for site assignment Section 150A. As used in this section and in section one hundred and fifty A1/2 the following words shall, unless the context otherwise requires, have the following meanings:—“Department”, the department of environmental protection.
“Facility”, a sanitary landfill, a refuse transfer station, a refuse incinerator rated by the department at more than one ton of refuse per hour, a resource recovery facility, a refuse composting plant, a dumping ground for refuse or any other works for treating, storing, or disposing of refuse.
“Refuse”, all solid or liquid waste materials, including garbage and rubbish, and sludge, but not including sewage, and those materials defined as hazardous wastes in section two of chapter twenty-one C and those materials defined as source, special nuclear or by-product material under the provisions of the Atomic Energy Act of 1954.
“Maintain”, to establish, keep or sustain the presence of a facility on a site, whether or not such facility is in operation and whether or not such facility has been closed.
No place in any city or town shall be maintained or operated by any person, including any political subdivision of the commonwealth, as a site for a facility, or as an expansion of an existing facility, unless, after a public hearing, such place has been assigned by the board of health of such city or town in accordance with the provisions of this section, or, in the case of a facility owned or operated by an agency of the commonwealth, such place has been assigned by the department after a public hearing and unless public notice of such assignment has been given by the board of health or the department, whichever is applicable.
The determination by the board of health, or the department in the case of a state agency, of whether to assign a place as a site for a facility, or for the expansion of an existing facility, shall be based upon the site suitability criteria established by the department in cooperation with the department of public health pursuant to section one hundred and fifty A 1/2, and any site assignment shall be subject to such limitations with respect to the extent, character and nature of the facility or expansion thereof as may be necessary to ensure that the facility or expansion thereof will not present a threat to the public health, safety or the environment.
Any person desiring to maintain or operate a site for a new facility or the expansion of an existing facility shall submit an application for a site assignment to the local board of health and simultaneously provide copies to the department and the department of public health. A copy of the application for site assignment shall be filed with the board of health of any municipality within one-half mile of the proposed site. Any municipality within such one-half mile shall be afforded all the procedural rights of an abutter for the purpose of administrative review by the department or public hearing by the board of health where the proposed site is located. The department shall, upon request by the board of health, provide advice, guidance and technical assistance to said board during its review of a site assignment application. The department and a board of health may enter into such other cooperative agreements in addition to those herein specified for the purpose of achieving an effective and expeditious review of the application. The board of health may charge a reasonable application fee to cover the costs of conducting a hearing and reviewing technical data submitted to the board. The application fee may also include a portion of the reasonable costs of other technical assistance. The application fee shall be established in accordance with rules and regulations promulgated by the department.
Within sixty days of receipt of said application, the department shall issue a report stating whether the proposed site meets the criteria established under section one hundred and fifty A1/2 for the protection of the public health and safety and the environment. Any and all such reports shall be made available to the public in a timely fashion prior to any public hearing concerning the site application.
Within sixty days of receipt of said application, the department of public health shall review said application and comment thereon as to any potential impact of a site on the public health and safety. The department of public health may, in addition to its comment, make or cause to be made a public report, in writing, as it relates to an expansion of an existing facility or the assignment of a place as a site for a facility and provide said report with its written comments to the board of health. The department of public health shall coordinate and cooperate with a board of health on any matter relating to said public health report.
Within thirty days of the receipt of the department’s report, the board of health shall hold a public hearing satisfying the requirements of chapter thirty A. Within forty-five days of the initial date of such hearing, the board of health shall render its decision on whether to assign a site for a facility, in writing, accompanied by a statement of reasons therefor and publish notice of said decision including determinations of each issue of fact or law necessary to the decision.
No assignment shall be granted by the local board of health unless the department report affirms that the siting criteria of said section one hundred and fifty A1/2 have been met by the proposed site. The board of health shall consider the concerns, if any, relative to the public health and safety cited by the department of public health. A local board of health shall assign a place requested by an applicant as a site for a new facility or the expansion of an existing facility unless it makes a finding, based on the siting criteria established by said section one hundred and fifty A 1/2, that the siting thereof would constitute a danger to the public health or safety or the environment.
Any person aggrieved by a decision of a board of health in assigning or refusing to assign a place as a site for a new facility, or expanding or refusing to expand an existing facility, except a resource recovery facility in operation or under construction prior to July first, nineteen hundred and eighty-seven, may, within thirty days of the publication of notice of such decision, appeal under the provisions of section fourteen of chapter thirty A. For the limited purposes of such an appeal, a local board of health shall be deemed to be a state agency under the provisions of said chapter thirty A and its proceedings and decision shall be deemed to be a final decision in an adjudicatory proceeding.
No facility shall be established, constructed, expanded, maintained, operated, or devoted to any past closure as defined by regulation, unless detailed operating plans, specifications, a public health report, if any, and necessary environmental reports have been submitted to the department and the department has granted a permit for the facility, and notice of such permit is recorded in the registry of deeds, or if the land affected thereby is registered land in the registry section of the land court for the district wherein the land lies. Within one hundred and twenty days after the department is satisfied that said operating plans, specifications, and reports are complete, the department shall make a decision granting or refusing to grant such permit. Said permit may limit or prohibit the disposal of particular types of solid waste at a facility in order to extend the useful life of the facility or reduce its environmental impact.
Every decision by the department granting or refusing to grant such permit shall be in writing and shall contain findings with regard to criteria established by the department. Any person aggrieved by the action of the department in granting or refusing to grant such permit, may appeal said decision pursuant to the provisions of section fourteen of chapter thirty A. For the limited purposes of such an appeal said department action shall be deemed to be a final decision in an adjudicatory proceeding.
Every person maintaining or operating a facility, including every political subdivision of the commonwealth, shall maintain and operate the same in such manner as will protect the public health and safety and the environment. Upon determination that the operation or maintenance of a facility results in a threat to the public health and safety or the environment, such site assignment decision by a board of health may be rescinded or suspended or may be modified through the imposition or amendment of conditions, at any time after due notice and public hearing satisfying the requirements of section eleven of chapter thirty A by the board of health of the city or town where such facility is located or by the department. Any person aggrieved by the decision of the board of health or the department in rescinding, suspending or modifying a site assignment may appeal said decision within thirty days of the publication of notice thereof pursuant to the provisions of section fourteen of chapter thirty A. For the limited purposes of such an appeal a local board of health shall be deemed a state agency under the provisions of said chapter thirty A and said decision shall be deemed to be a final decision in an adjudicatory proceeding and the decision of the department shall be deemed to be a final decision in an adjudicatory proceeding. The department may rescind, suspend or modify the permit upon a determination that the operation or maintenance of the facility results in a threat to the public health and safety or to the environment. Any person aggrieved by such decision of the department may, within thirty days of the publication of notice thereof, appeal said decision pursuant to the provisions of chapter thirty A.
If a facility is a landfill owned or operated by any person other than a town or agency of the commonwealth, such person shall pay to the town where the facility is located an amount in accordance with the provisions of section twenty-four A of chapter sixteen for each ton of solid waste which is disposed of in such landfill. On or before the twentieth day of each month every such person shall file a return subscribed under the penalties of perjury with the board of health of the town in which such facility is located, on such form as the commissioner of environmental protection shall require for determination of the fee imposed by this paragraph. Said fee shall be due and payable on or before the due date of the return. Notwithstanding the foregoing, however, no fee shall be required or collected from an owner of a privately owned facility used by the owner thereof for the sole disposal of refuse generated from his own premises, and no such return need be filed.
No person shall dispose or contract for the disposal of solid waste at any place which has not been approved by the department pursuant to the provisions of this section or other applicable law.
The department shall allow any unlined landfill, owned or operated by a municipality or a solid waste district, to continue accepting refuse in compliance with existing approvals after January first, nineteen hundred and ninety-four; provided, that said municipality or district files a statement of intent with the department on or before August fifteenth, nineteen hundred and ninety-three, as to its intent to continue in operation after January first, nineteen hundred and ninety-four; provided further, that any landfill for which a statement of intent has been submitted shall operate in accordance with applicable federal and state statutes, regulations, existing approvals, and provisions included herein. For purposes of this paragraph, the term “existing approval” shall include any permit, site assignment, plan approval, condition of operation, or any other applicable order or rule governing the operations of a landfill issued or granted by a municipality, the department, or any other agency of the commonwealth, or for which an application was pending as of May first, nineteen hundred and ninety-three, when granted in accordance with applicable regulations; provided, that no such application shall be denied arbitrarily and capriciously. Any municipality or district which does not file such a statement of intent shall cease accepting refuse no later than January first, nineteen hundred and ninety-four, and shall commence closure of the landfill under its control subject to the approval of the department in accordance with regulations promulgated by the department. On or before October first, nineteen hundred and ninety-three, the department shall compile and publish a list of all landfills for which a statement of intent has been filed and classify separately, as supported by scientific data, those landfills which pose a significant threat to the public health, safety, or the environment, those landfills which pose a potential threat, and those landfills for which current scientific data demonstrate little or no present discernible threat or for which current data is inconclusive. In classifying landfills, the department shall utilize all available scientific data, including, without limitation, any scientific data submitted by the municipality or the district and any additional scientific data generated by the department relative to an assessment of the actual or potential migration of leachate or other contaminants off the site of the landfill. The department shall publish the list and accept public comment on said list. The department shall, if requested by November first, nineteen hundred and ninety-three, by the chief executive officer of a municipality or a district with a landfill on the list, participate in a public meeting in the municipality or district to be scheduled at mutual convenience within sixty days of such request. By February first, nineteen hundred and ninety-four, the department shall issue a final revised list taking into account any additional information generated or received through the comment and meeting process. The department shall work in conjunction with a municipality or a district to establish a schedule for the municipality or district to commence and complete closure of the landfill, considering the risks posed by the landfill and the fiscal capacity of the municipality or district to be incorporated in a consent order. If an agreement is not reached, the department may order any landfill which is classified as a significant threat to public health, safety or the environment to cease operations and commence closure, or take such other action as the department deems necessary; provided, that the municipality or district may request an adjudicatory hearing on such order pursuant to chapter thirty A. A municipality or district operating a landfill classified by the department as a potential threat shall no later than July first, nineteen hundred and ninety-four, install a groundwater monitoring system approved by the department, and shall report the results of such monitoring to the department no more than quarterly thereafter. A municipality or district operating a landfill for which the department has determined little or no present discernible threat exists or for which current data is inconclusive shall no later than January first, nineteen hundred and ninety-five, install a groundwater monitoring system approved by the department, and shall report the results of such monitoring to the department no more than quarterly thereafter. It shall be a violation of this section to falsify or falsely report any monitoring results. If the results of such groundwater monitoring or other site specific assessment indicate that a landfill does pose a threat to public health, safety or environment, the department shall work in conjunction with a municipality or a district to establish a schedule for the municipality or district to commence and complete closure of the landfill, considering the risks posed by the landfill and the fiscal capacity of the municipality or district to be incorporated in a consent order. If an agreement is not reached, the department may order the municipality or district to cease operations and commence closure, or to take such other action as the department deems necessary; provided, that the municipality or district may request an adjudicatory hearing on such order pursuant to chapter thirty A. Nothing in this paragraph shall preclude the department from acting to address violations of this section, chapter twenty-one E or the regulations promulgated thereunder.
No site on which a facility was operated shall be conveyed or leased by the owner thereof, or be devoted to any use other than the operation of a facility, until notice that such facility was operated on the site is recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court for the district wherein the land lies. No site on which a facility was operated shall be used for any other purpose without the prior written approval of the department.
The department shall adopt and may from time to time amend rules and regulations, and the commissioner may issue orders, to enforce the provisions of this section. Any person, including any political subdivision of the commonwealth who violates this section, or any order issued pursuant thereto, or any rule or regulation promulgated hereunder (1) shall be subject to a fine of not more than twenty-five thousand dollars, or by imprisonment for not more than two years in a house of correction, or both, for each such violation; or (2) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each such violation. Each day each such violation occurs or continues shall be deemed a separate offense. These penalties shall be in addition to any other penalties that may be prescribed by law.
The superior court shall have jurisdiction in equity to enforce the provisions of this section upon petition of the department or any aggrieved person.
Ash produced from the combustion of coal, including but not limited to fly ash and bottom ash, shall not be construed as refuse, rubbish, garbage, or waste material under this section when used as a raw material for concrete block manufacture, aggregate, fill, base for road construction, or other commercial or industrial purpose, or stored for such use. A location where such use or storage takes place may be constructed, established, maintained, and operated without being construed as a facility or site for a facility under this section, and no assignment or approval from the board of health or the department shall be required for such construction, establishment, maintenance, or operation; provided, however, the department shall have jurisdiction to determine, after notice and hearing, that the establishment or operation of such a location has created a nuisance condition by reason of odor, dust, fires, smoke, the breeding or harboring of rodents, flies or vermin, or other causes, and to prevent or order abatement thereof; and provided, further, that no final disposal of ash produced by the combustion of coal may be accomplished by burial of such ash in the ground, other than as base for road construction or fill, unless the place where such disposal takes place has been assigned for such disposal by the board of health and plans for such disposal have been approved by the department pursuant to this section. The department may waive the requirements of the preceding paragraphs of this section and the application of any regulations, or portions thereof, promulgated under the preceding paragraphs of this section as they may apply to the disposal by burial of ash produced by the burning of coal, and shall review and may approve the plans, site and method of storage upon a determination that no nuisance is created and damage to the environment is minimal. Use of ash produced from the combustion of coal as intermediate cover material over rubbish at sanitary landfill facilities may be permitted by assignment of the board of health with approval of the department under this section.
Chapter 111: Section 150B. Establishment of facility site Section 150B. The definition of “facility” in section two of chapter twenty-one D shall apply to this section. Any such facility shall be subject to this section and not subject to section one hundred and fifty A.
No place in any city or town shall be established or maintained or operated by any person, including any political subdivision or agency of the commonwealth, as a site for a facility, unless such place has either been assigned by the board of health of such city or town as a site for a facility after a public hearing, subject to the provisions of any ordinance or by-law adopted therein under chapter forty A or corresponding provisions of earlier laws, or, in the case of an agency of the commonwealth, has been assigned by the department of environmental protection, in this section called the department after a public hearing and unless public notice of such assignment has been given by the board of health.
The assignment of a place as a site for a facility shall be subject to such limitation with respect to the extent, character and nature of operation thereof as will insure that the facility imposes no significantly greater danger to the public health or public safety from fire, explosion, pollution, discharge of hazardous substances, or other construction or operational factors than the dangers that currently exist in the conduct and operation of other industrial and commercial enterprises in the commonwealth not engaged in the treatment, processing or disposal of hazardous waste, but utilizing processes that are comparable. In assessing the significance and degree of danger, the board shall consider and evaluate such evidence as all interested persons may submit to it including, but not limited to, evidence comparing the procedures and practices proposed for the conduct and operation of a facility with the procedures and practices existing in the conduct and operation of other industrial and commercial enterprises in the commonwealth not engaged in the treatment, processing or disposal of hazardous waste which are conducted and operated in accordance with law and sound principles of modern engineering practice. The board of health shall notify the department upon receipt of an application to assign a place as a site for a facility. The department shall, upon request by the board of health, provide advice, guidance and technical assistance in reviewing the application. The department and a board of health may enter into such other cooperative arrangements in addition to those herein specified for the purpose of achieving a more effective and expeditious review of the application.
Every decision of the board of health in assigning or refusing to assign a place as a site for a facility shall be in writing and shall include a statement of reasons and the facts relied upon by the board in reaching its decision. The assignment of a place as a site for a facility shall be recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court wherein the land lies, before the construction, operation, or maintenance of the facility may commence.
Any person aggrieved by the action of a board of health in refusing to assign a place as a site for a facility may, within thirty days of the publication of notice of said decision, appeal to the superior court, which may affirm said decision of the board of health, remand the matter for further proceedings before the board of health, set aside or modify said decision, or order the board of health to take any action unlawfully withheld or unreasonably delayed if the court determines that the substantial rights of any party may have been violated because said decision violated constitutional provisions or was in excess of the statutory authority and jurisdiction of the board of health or was based upon an error of law or was made upon unlawful procedure or was unsupported by substantial evidence, or was arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law.
Any person aggrieved by the action of a board of health in assigning a place as a site for a facility may, within thirty days of the publication of notice of such assignment, appeal to the department from the assignment of the board of health. Upon such appeal or upon the department’s own initiative, the department may, after due notice and public hearing, rescind or suspend such assignment or modify the same by the imposition or amendment of terms, restrictions, conditions and requirements.
Upon determination that the maintenance and operation of a facility has resulted in a significant danger to public health or is not in compliance with the terms, restrictions, conditions and requirements established for its maintenance and operation in an assignment made pursuant to the provisions of this section, said assignment may be rescinded or suspended or may be modified through the imposition or amendment of terms, restrictions, conditions and requirements at any time after due notice and a public hearing by the board of health where such facility is located, upon its own initiative or upon complaint by any person aggrieved by such assignment, or by the department upon its own initiative or upon complaint by any person aggrieved by said assignment. Every such rescission, suspension or modification shall be in writing and shall include a statement of reasons and the facts relied upon by the board of health or the department in taking such action.
Any person aggrieved by the action of the board of health or the department in rescinding, suspending or modifying an assignment may, within thirty days of publication of notice or such rescission, suspension or modification of said assignment, appeal to the superior court, which may affirm said rescission, suspension or modification, remand the matter for further proceedings, set aside or modify said rescission, suspension or modification, order any action unlawfully held or unreasonably delayed if the court determines that the substantial rights of any party may have been violated because said rescission, suspension or modification violated constitutional provisions or was in excess of statutory authority and jurisdiction or was based upon an error of law or was made upon unlawful procedure or was unsupported by substantial evidence or was arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law.
The department shall adopt, and may from time to time amend rules and regulations, and the commissioner may issue orders, to enforce the provisions of this section. Any person, including any political subdivision of the commonwealth, who fails to operate and maintain a facility in accordance with the provisions of this section or in accordance with any rules, regulations, or orders hereunder promulgated (a) shall be punished by a fine of not less than one hundred nor more than twenty-five thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation. Each day’s failure to comply with said provisions, rules, regulations or orders shall constitute a separate violation.
The superior court shall have jurisdiction in equity to enforce the provisions of this section upon petition of the department or any aggrieved person.
This section and section one hundred and fifty A shall not apply to any hazardous waste facility exempt from the licensing requirements of chapter twenty-one C, which was lawfully organized and in existence on May first, nineteen hundred and eighty, or to any hazardous waste facility which was licensed as such by any division of the department as of May first, nineteen hundred and eighty. If any facility has its license revoked and reapplies for a license after May first, nineteen hundred and eighty, the provisions of this section shall apply to said reapplication; provided, however, that the provisions of this section shall not apply to any facility, or the operation of any facility under receivership by a federal or state agency or by a judicially appointed and supervised receiver of any court of competent jurisdiction where the license of the facility has been suspended or revoked and said receivership has been imposed.
This section and section one hundred and fifty A shall not apply to any generator who stores, treats, processes, or disposes of any hazardous waste produced exclusively on-site; provided, however, that this section shall apply to any such generator who disposes of hazardous waste into or on the land. For purposes of this section, “on-site” shall be defined to mean the same or geographically contiguous property in single ownership which may be divided by public or private right-of-way; provided, however, that the entrance and exit between the properties is at a crossroads intersection, and access is by crossing as opposed to going along the right-of-way; as well as noncontiguous properties owned by the same person but not connected by a right-of-way which such person controls and to which the public does not have access.
Notwithstanding any provisions of this section to the contrary, this section shall apply to the increase of capacity to store, treat, or dispose of any particular type of hazardous waste, unless such increase of capacity was approved by the department pursuant to chapter twenty-one C prior to the effective date of this paragraph, or unless an existing site assignment established pursuant to the requirements of this section provides for the conditions under which such increase of capacity shall be permitted.
Chapter 111: Section 151. Slaughter houses; regulation; public hearing; application of section Section 151. No person shall occupy or use a building for carrying on the business of slaughtering cattle, horses, mules, sheep or other animals, or for a melting or rendering establishment, or for other noxious or offensive trade and occupation, or permit or allow said trade or occupation to be carried on upon premises owned or occupied by him, without first obtaining, after a public hearing has been held thereon, the written consent and permission of the mayor and city council, or of the selectmen, or, in any town having a population of more than five thousand, of the board of health, if any, of the town where the building or premises are situated. This section shall not apply to any building or premises occupied or used for said trade or occupation on May eighth, eighteen hundred and seventy-one; but no person who used or occupied any building or premises on said date for said trades or occupations shall enlarge or extend the same without first obtaining the written consent and permission of the mayor and city council or the selectmen, or, in any town having a population of more than five thousand, of the board of health, if any.
Chapter 111: Section 152. Prohibition of offensive trades or occupations Section 152. If any buildings or premises are so occupied or used, the department of environmental protection shall, upon application, appoint a time and place for hearing the parties, and, after due notice thereof to the party against whom the application is made and a hearing, may, if in its judgment the public health, comfort or convenience so require, order any person to desist from further carrying on said trade or occupation in such buildings or premises; and no person shall thereafter continue so to occupy or use such buildings or premises. Whoever occupies or uses any building or premises in violation of this or the preceding section shall forfeit not more than two hundred dollars for every month of such occupancy or use and in like proportion for a shorter time.
Chapter 111: Section 153. Restraint of offensive trades or occupations Section 153. The superior court may restrain the unauthorized occupancy, use or extension of any building or premises occupied or used for the trades or occupations aforesaid, and enforce the orders of the department issued under the preceding section; but this and the two preceding sections shall not impair any other remedies against nuisances.
Chapter 111: Section 154. Killing or rendering of horses; licenses; application; notice to director of animal health; fees Section 154. A person engaged in or desiring to engage in the business of killing horses, or in the rendering of horses or other animals, shall annually in March apply for a license to the board of health of the town where such business is to be carried on. The application shall be in writing and signed by the persons desiring to carry on such business, or, if the applicant is a corporation, by a duly authorized officer thereof. It shall state the names in full and the addresses of all persons desiring to carry on such business, or, if a corporation is the applicant, the names of all its officers, and the street or other place where the business is to be conducted. The board of health of a town may grant such licenses after it is satisfied that the applicants have a suitable building and plant in a situation approved by said board, and that they have suitable trucks or wagons for the removal of dead animals. The license shall state the name of the licensee, the situation of the building or establishment where the business is to be carried on, and shall continue in force until April first of the year next ensuing unless sooner revoked. The board of health shall keep a record of such licenses granted by it, and shall notify the director of animal health of the granting of any such license, giving the name and address of the licensee. Unless otherwise established in a town by town meeting action and in a city by city council action, and in a town with no town meeting by town council action, by adoption of appropriate by-laws and ordinances to set such fees, the fee for a license shall not exceed one dollar, and a license may be revoked at any time by the board of health, but in no event shall any such fee be greater than ten dollars. Licensees shall report to the director of animal health, in such form and at such times as he may order, every animal received by them which is infected with a contagious disease. No unlicensed person shall carry on the business of killing horses or of rendering horses or other animals. So much of section thirty of chapter one hundred and twenty-nine as provides that no person shall knowingly sell an animal with a contagious disease shall not apply to any person who sells such animal to a licensee under this section, if such animal is to be killed or rendered at the establishment of such licensee. Whoever violates this section shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than three months, or both.
Chapter 111: Section 155. Licensing of stables in cities and large towns; fees Section 155. No person shall erect, occupy or use for a stable any building in a city, or in a town having more than five thousand inhabitants, unless such use is licensed by the board of health, and, in such case, only to the extent so licensed. The fee for such licenses shall be established in a town by town meeting action and in a city by city council action, and in a town with no town meeting by town council action, by adoption of appropriate by-laws and ordinances to set such fees, but in no event shall any such fee be greater than forty dollars. This section shall not prevent any such occupation and use authorized by law on May fourth, eighteen hundred and ninety-five, to the extent and by the person so authorized, but the board of health of such a city or town may make such regulations or orders as, in its judgment, the public health requires relative to drainage, ventilation, size and character of stalls, bedding, number of animals and storage and handling of manure in any stable in its city or town.
Chapter 111: Section 156. Stables in vicinity of churches Section 156. No person shall in a city occupy or use a building for a livery stable, or a stable for taking or keeping horses and carriages for hire or to let, within two hundred feet of a church or meeting house erected and used for the public worship of God, without the written consent of the religious society or parish worshipping therein; but this section shall not prevent such occupation and use if authorized by law on May seventeenth, eighteen hundred and ninety-one, to the extent then authorized.
Chapter 111: Section 157. Penalty for violation of Secs. 155 and 156 Section 157. Whoever violates any provision of the two preceding sections or of a regulation or order made thereunder shall be punished by a fine of five dollars for each day such violation continues.
Chapter 111: Section 158. Licensing of stables in small towns; fees; restraint of erection, occupancy or use of stables Section 158. The selectmen of towns having a population of five thousand or less may license suitable persons to keep more than four horses in specified buildings or places within their respective towns, and may revoke such licenses at pleasure. The fee for such licenses shall be established by said selectmen, but in no event shall any such fee be greater than twenty dollars. Whoever, not being licensed as aforesaid, occupies or uses a building or place for a stable for more than four horses shall forfeit not more than fifty dollars for every month he so occupies or uses such building or place, and in like proportion for a shorter time. The superior court may restrain the erection, occupancy or use of stables contrary to this section or section one hundred and fifty-five or one hundred and fifty-six.
Chapter 111: Section 159. Supervision of inland waters Section 159. The department of environmental protection, in this section and sections one hundred and sixty to one hundred and sixty-six, inclusive, called the department, shall have the general oversight and care of all inland waters and of all streams, ponds and underground waters used by any city, town, water supply or fire district or public institution or by any water or ice company or any person in the commonwealth as sources of ice or water supply and of all springs, streams and watercourses tributary thereto. It shall be provided with maps, plans and documents suitable for such purposes, and shall keep records of all its transactions relative thereto. It shall give notice to the attorney general of any violation of law relative to the pollution of water supplies and inland waters.
Chapter 111: Section 16. Unsanitary condition of barns, stables or enclosures in which cattle are kept; report Section 16. The department shall report to the director of animal health all cases brought to its attention where barns, stables or other enclosures, in which neat cattle, other ruminants or swine are kept, are in an unsanitary condition.
Chapter 111: Section 160. Examination of water supply; assistance to cities, towns and districts for groundwater aquifers and recharge areas Section 160. The department may cause examinations of such waters to be made to ascertain their purity and fitness for domestic use, or the possibility of their impairing the interests of the public or of persons lawfully using them or of imperilling the public health. It may make rules and regulations and issue such orders as in its opinion may be necessary to prevent the pollution and to secure the sanitary protection of all such waters used as sources of water supply and to ensure the delivery of a fit and pure water supply to all consumers. It may delegate the granting and withholding of any permit required by such rules or regulations to state departments, boards and commissions and to selectmen in towns, and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such selectmen, departments, boards and commissions, subject to such recommendation and direction as shall be given from time to time by the department; and upon complaint of any person interested, the department shall investigate the granting or withholding of any such permit, and make such orders relative thereto as it may deem necessary for the protection of the public health and to restrain the use of such waters to the extent as in its opinion such use will tend to adversely affect the public health. Whoever violates any such orders, rules or regulations: (a) shall be punished by a fine of not more than twenty-five thousand dollars, to the use of the commonwealth, for each day that such violation occurs or continues, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b), shall be subject to civil penalty not to exceed twenty-five thousand dollars per day for each day such violation occurs or continues.
The department shall, within one hundred and eighty days of the adoption of a national primary drinking water regulation for lead, promulgate state regulations for lead in drinking water that are no less stringent than the federal standard. Such regulations shall also specify sampling procedures to be followed by water suppliers that are adequate to ensure detection of dangerous levels of lead at all appropriate points in the distribution system, including residential tap water. The department shall monitor the results of such sampling. The department shall also, by July first, nineteen hundred and eighty-eight, promulgate regulations specifying corrosion control measures to be taken by communities in which the drinking water supplied to consumers poses a risk of exposure to dangerous levels of lead.
The department of environmental protection shall establish a program to assist the cities, towns and districts of the commonwealth to acquire, by purchase, gift, lease, eminent domain, or otherwise lands and waters and easements therein to protect and conserve groundwater aquifers and recharge areas, surface water resources and watersheds, and land adjacent to, or nearby said resources, as it determines necessary to meet further water resource needs of the commonwealth for municipal or regional water supply. Said department shall develop criteria and procedures for the administration of said program subject to the approval of the water resources commission. No such city, town or district shall receive such assistance hereunder unless such city, town or district has adopted or is in the process of adopting a local water resources management plan pursuant to regulations established by the water resources commission.
Chapter 111: Section 160A. Cross connections between distribution systems; certification for inspection and testing of backflow prevention devices Section 160A. No physical cross connection shall be maintained between the distribution system of a public water supply, the water of which is used for drinking, domestic or culinary purposes, and the distribution system of any water supply not approved by the department as being of safe sanitary quality, unless said connection has been approved by the department in accordance with rules and regulations adopted for the purpose, and unless a permit therefor has been issued by the department. Such permit may be issued upon the application of a person maintaining such connection and upon the payment of a fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven, and may be renewed annually upon payment of a like fee. When more than one such connection is maintained on any premises a separate permit shall be required for each connection. A permit may be revoked by the department upon due notice to the person maintaining the connection whenever, in the opinion of the department, the connection or the maintenance thereof no longer complies with its rules and regulations, and no portion of the permit fee shall be refunded.
Whoever maintains such a connection without a permit or after revocation of the permit, maintains such a connection, (a) shall be punished by a fine of not more than twenty-five thousand dollars for each day such violation occurs or continues, or by imprisonment for not more than one year, or both such fine and imprisonment, or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars per day for each day that such violation occurs or continues.
The department of environmental protection may establish a program for the certification of persons desiring to engage in inspection and testing of backflow prevention devices installed in accordance with regulations adopted pursuant to section one hundred and sixty. Said department shall adopt regulations for the certification program prescribing the minimum qualifications which such persons must meet in order to be certified. A certificate issued pursuant to this paragraph shall be valid for not longer than three years, after which it shall be renewed by said department upon receipt of an application from the person desiring to be so certified and a determination by said department that the applicant meets the qualifications established by the regulations adopted pursuant to this section. An application to renew a certificate shall be filed not later than one month prior to expiration of such certificate. After notice and opportunity for hearing, said department may suspend or revoke for cause any such certification. Said department may prescribe reasonable application fees for the issuance of such a certificate. Any person who engages in inspecting or testing backflow prevention devices in violation of this paragraph, shall, in addition to any other remedy provided by law, be punished by fine not to exceed five thousand dollars, or by imprisonment for not more than six months, or both.
Chapter 111: Section 160B. Water quality violations; orders of department of environmental quality engineering; enforcement Section 160B. The department shall immediately report any violations of standards or regulations regulating the quality of water used for drinking, domestic or culinary purposes to the department of public health. If the department of public health ascertains from its own inspection or from the report of the department that there is a violation of those regulations or standards which may endanger the public health, it may order the appropriate party to cease violating the regulation and to take whatever steps are necessary to purify the water. If any such order of the department of public health conflicts with any order of the department the order of the department of public health shall take precedence. Such an order will be enforceable by the superior court sitting in equity upon the petition of the department of public health.
Chapter 111: Section 160C. Home water treatment devices; definitions applicable to Secs. 160B to 160G Section 160C. As used in this section and sections one hundred and sixty B to one hundred and sixty G, inclusive, the following terms shall, unless the context clearly indicates otherwise, have the following meanings:—“Department”, the department of environmental protection.
“Home water treatment device”, any product that (a) is designed to alter the chemical, electro-chemical, or physical properties or characteristics of drinking water, and (b) is used, sold, leased, or rented for use on residential real property primarily for personal, family, or household purposes.
“Purchaser”, a person who purchases, leases or rents home water treatment devices.
“Seller”, a person who sells, leases, rents or promotes home water treatment devices.
Chapter 111: Section 160D. Analysis of drinking water; disclosure form Section 160D. Any person shall be permitted to test or analyze drinking water for the purpose of selling, leasing, renting or promoting home water treatment devices for the following substances: chlorine, chloride, color, iron, manganese, odor, hardness, hydrogen sulfide, PH, sulfate, TDS, zinc and such other substances as the department may by regulation allow; provided, however, that the test or analysis shall be accompanied by a form provided or approved by the department and given by the seller to the prospective purchaser setting out clearly and accurately the scope, limits, and results of said test or analysis. A civil penalty of not more than five thousand dollars shall be assessed for a failure by the seller to provide prospective purchasers with the required form. The department, in consultation with representatives of consumer groups and the home water treatment device industry shall develop such form or approve such forms as may be submitted to the department. Failure by the department to provide or approve such form shall constitute a waiver of said requirement until such form shall be provided or approved by the department.
Any person may deliver to an independent laboratory, certified by the department to test for drinking water supply parameters, a sample of water collected and sealed in a manner approved by the department for the purpose of having said water tested or analyzed. Results of such testing and analysis, including a comparison of such results with Massachusetts drinking water standards and a brief description of the health effects of any contaminants shown to be present at levels that exceed the Massachusetts drinking water standards shall be reported in writing to the prospective purchaser by the certified laboratory on a standard testing result form, as approved by the department, prior to any sale, lease or rental arrangement of a home water treatment device.
Chapter 111: Section 160E. Analysis by uncertified person; penalty Section 160E. A civil penalty of not more than five thousand dollars shall be assessed on any person who is not certified by the department to perform drinking water quality testing who tests or analyzes drinking water, except for those tests allowed under the provisions of section one hundred and sixty D for the purpose of selling, leasing, renting or promoting a home water treatment device.
Chapter 111: Section 160F. Misrepresentations; sale of home water treatment devices Section 160F. Any misleading statement or material misrepresentation made in order to sell, lease, rent or promote for sale, lease, or rental of a home water treatment device shall constitute an unfair and deceptive practice under the provisions of chapter ninety-three A.
Chapter 111: Section 160G. Enforcement of Secs. 160C to 160F Section 160G. The department may make such rules and regulations or issue orders requiring such action as it deems necessary to enforce the provisions of sections one hundred and sixty C to one hundred and sixty F, inclusive. The department and cities, towns and districts acting through their local boards of health or boards or offices having like powers and duties where there is no board of health, shall have concurrent jurisdiction to enforce the provisions of said sections one hundred and sixty C to one hundred and sixty F, inclusive. Any persons aggrieved by any action of a city, town or district pursuant to the provisions of said sections one hundred and sixty C to one hundred and sixty F, inclusive, may appeal to the department and said department may, after a hearing, affirm, rescind, modify or amend such action. Civil penalties collected by cities, towns, and districts from said enforcement shall be retained for use by the cities, towns, and districts.
Chapter 111: Section 161. Repealed, 1961, 48 Chapter 111: Section 162. Removal of causes of pollution; petition; hearing; notice; damages; violation of order Section 162. Upon petition to the department by the mayor of a city or the selectmen of a town, the managing board or officer of any public institution, or by a board of water commissioners, or the president of a water or ice company, stating that manure, excrement, garbage, sewage or any other matter pollutes or tends to pollute the waters of any stream, pond, spring, underground waters, or watercourse used by such city, town, institution or company as a source of water supply, the department shall appoint a time and place within the county where the nuisance or pollution is alleged to exist for a hearing, and after notice thereof to parties interested and a hearing, if in its judgment the public health so requires, shall, by an order served upon the party causing or permitting such pollution, prohibit the deposit, keeping or discharge of any such cause of pollution, and shall order him to desist therefrom and to remove any such cause of pollution; but the department shall not prohibit the cultivation and use of the soil in the ordinary methods of agriculture if no human excrement is used thereon. The department shall not prohibit the use of any structure in existence on June eleventh, eighteen hundred and ninety-seven, upon a complaint made by the board of water commissioners of any town or by any water or ice company unless such board of water commissioners or company files with the department a vote of its city council, selectmen or company that such town or company will at its own expense make such changes in said structure or its location as said department shall deem expedient. Such vote shall be binding on such town or company. All damages caused by such changes shall be paid by such town or company; and if the parties cannot agree thereon, the damages may be recovered under chapter seventy-nine. Whoever violates such an order, (a) shall be punished by a fine of not more than twenty-five thousand dollars, to the use of the commonwealth, for each day that such violation occurs or continues, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars per day for each day that such violation occurs or continues.
Chapter 111: Section 163. Appeal Section 163. Whoever is aggrieved by an order made under section one hundred and sixty or section one hundred and sixty-two may appeal therefrom as provided in section one hundred and forty-seven; but such notice as the court shall order shall also be given to the board of water commissioners and mayor, or chairman of the selectmen, or president or other officer of the water or ice company interested in such order. While the appeal is pending the order of the department shall be complied with, unless otherwise authorized by it.
Chapter 111: Section 164. Enforcement of orders, rules and regulations Section 164. The supreme judicial or superior court, upon the application of the department or of any party interested, may enforce the orders, rules and regulations of said department, and restrain the use or occupation of the premises or such portion thereof as said department may specify on which the material is deposited or kept, or such other cause of pollution exists, until the orders, rules and regulations of the department have been complied with.
Chapter 111: Section 165. Entry on premises; compensation of agents; apportionment Section 165. The agents and servants of the department may enter any building, structure or premises to ascertain whether sources of pollution or danger to the water supply there exist, and whether the rules, regulations and orders aforesaid are obeyed. Their compensation for services rendered in connection with proceedings under section one hundred and sixty-two shall be fixed by the department, and shall in the first instance be paid by the commonwealth; but the whole amount so paid shall, at the end of each year, be justly and equitably apportioned by the commissioner of revenue between such towns or companies as, during said year, have instituted said proceedings, and may be recovered in an action by the state treasurer, with interest from the date of demand.
Chapter 111: Section 166. Repealed, 1977, 526, Sec. 4 Chapter 111: Section 167. Protection of sources of water supply Section 167. No sewage, drainage, refuse or polluting matter, of such kind and amount as either by itself or in connection with other matter will corrupt or impair the quality of the water of any pond or stream used as a source of ice or water supply by a town, public institution or water company for domestic use, or render it injurious to health, and no human excrement, shall be discharged into any such stream or pond, or upon their banks if any filter basin so used is there situated, or into any feeders of such pond or stream within twenty miles above the point where such supply is taken.
Chapter 111: Section 168. Prescriptive rights of drainage; application of Sec. 167 Section 168. The preceding section shall not destroy or impair rights acquired by legislative grant prior to July first, eighteen hundred and seventy-eight, or destroy or impair prescriptive rights of drainage or discharge to the extent to which they lawfully existed on that date; nor shall it be applicable to the Merrimack or Connecticut rivers, or to so much of the Concord river as lies within the limits of Lowell.
Chapter 111: Section 169. Injunction against pollution of water supply Section 169. The supreme judicial or superior court, upon application of the mayor of a city, the selectmen of a town, the managing board or officer of a public institution, or a water or ice company which is interested, may enjoin the violation of section one hundred and sixty-seven.
Chapter 111: Section 17. Disposal of sewage; consultation, advice or experiments; hearing; improvements; definition Section 17. The department of environmental protection, in this section called the department, shall consult with and advise the officers of towns and persons having or about to have systems of water supply, drainage or sewerage as to the most appropriate source of water supply and the best method of assuring its purity, or as to the best method of disposing of their drainage or sewage with reference to the existing and future needs of other towns or persons which may be affected thereby. It shall also consult with and advise persons engaged or intending to engage in any manufacturing or other business whose drainage or sewage may tend to pollute any inland water as to the best method of preventing such pollution, and it may conduct experiments to determine the best methods of the purification or disposal of drainage or sewage. Towns, districts and persons shall submit to said department for its advice and approval their proposed system of water supply or of the disposal of drainage or sewage, and no such system shall be established without such approval. All petitions to the general court for authority to introduce a system of water supply, drainage or sewerage shall be accompanied by a copy of the recommendation, advice and approval of said department thereon. The department may after a public hearing require a town, person, district or water company to make such improvements relative to any existing treatment, works or system of water supply as in its judgment may be necessary for the protection of public health. In this section the term “drainage” means rainfall, surface and subsoil water only, and “sewage” means domestic and manufacturing filth and refuse.
Chapter 111: Section 170. Willful defilement or corruption of spring or source of water Section 170. Whoever willfully and maliciously defiles or corrupts any spring or other source of water, or reservoir, or destroys or injures any pipe, conductor of water or other property pertaining to an aqueduct, or aids or abets in any such trespass, shall be punished by a fine of not more than twenty-five thousand dollars for each day that such willful and malicious activity occurs or continues, or imprisonment for not more than two years, or both such fine and imprisonment. Whoever otherwise defiles or corrupts any spring or other source of water, or reservoir, or destroys or injures any pipe, conductor of water or other property pertaining to an aqueduct shall be subject to a civil penalty not to exceed twenty-five thousand dollars per day for each day that such violation occurs or continues.
Chapter 111: Section 171. Wilful defilement of sources of water supply Section 171. Whoever wilfully deposits excrement or foul or decaying matter in water used for domestic water supply, or upon the shore thereof within five rods of the water, or whoever bathes in such water shall be punished by a fine of not more than fifty dollars or by imprisonment for not more than one month. A police officer or constable of a town where such water is wholly or partially situated, acting within the limits of such town, and any executive officer or agent of a water board, board of water commissioners, public institution or water company furnishing water or ice for domestic purposes, acting upon the premises of such board, institution or company and not more than five rods from the water, may without a warrant arrest any person found in the act of violating this section and detain him in some convenient place until a complaint can be made against him therefor. The provisions of this section shall not interfere with the sewage of a town or public institution, or prevent the enrichment of land for agricultural purposes by the owner or occupant thereof.
Chapter 111: Section 172, 173. Repealed, 1975, 384 Chapter 111: Section 173A. Police employed to protect water supply; powers and duties Section 173A. Police employed by the water board or board of water commissioners of a city, town or water district, a public institution or water company, and duly appointed in one of the cities or towns within an area from which water is being supplied under the direction of such board, institution or company, or over which such board, institution or company has control, or where such water is furnished by such city, town, district, institution or company shall within and throughout any or all of such areas have all the powers and duties of police officers of cities and towns.
Chapter 111: Section 173B. Entry upon premises within water shed of source of water supply Section 173B. Any water board or board of water commissioners of a city, town or water district and any executive officer or agent of any such board or of a public institution or water company furnishing water for domestic purposes, and any police officer employed by such a water board, board of water commissioners, public institution or water company, may enter any premises except dwelling houses within the water shed of the source of water supply of such city, town, district, institution or company to ascertain whether the provisions of this chapter relative to water supply and the rules and regulations adopted under section one hundred and sixty are being obeyed.
Chapter 111: Section 174. Driving animal on ice of pond or stream used for domestic water supply Section 174. Whoever, not being engaged in cutting or harvesting ice, or in hauling logs, wood or lumber, drives any animal on the ice of a pond or stream used for domestic water supply for a town shall be punished by a fine of not more than fifty dollars or by imprisonment for not more than one month.
Chapter 111: Section 174A. Prevention of defilement of domestic water supply by gulls or terns Section 174A. In order to preserve the purity and prevent the pollution of the waters of any reservoir, pond, and stream used for domestic water supply, by the watershed system of the division of watershed management of the metropolitan district commission, or by a town, water supply or fire and water district, public institution or water company, said division, the public board or commission, or the governing board in case of a water company, having control of such waters may authorize one or more of its employees, so far as permissible under federal law, to take such reasonable means and use such appliances and weapons as, in the judgment of such public board or commission, or governing board, as the case may be, will prevent the defilement of said waters by gulls or terns, any provision of chapter one hundred and thirty-one to the contrary notwithstanding. Every such division, public board or commission and governing board shall keep an accurate account of all birds killed by its employees under authority of this section and submit such account to the director of the division of fisheries and wildlife of the department of fish and game at such times and covering such periods as he may prescribe.
Chapter 111: Section 175. Protection of Charles river from pollution Section 175. The department of environmental protection, in this section called the department, shall make reasonable orders, having due regard for the particular circumstances of each case, prohibiting the entrance or discharge of sewage into any part of the Charles river or its tributaries, and preventing the entrance or discharge therein of any other substance which may be injurious to the public health or may tend to cause an offensive odor or to create a public nuisance or to obstruct the flow of water or to diminish the public use or enjoyment of said river, its tributaries, or adjacent areas, including all waste or refuse from any factory or other establishment where persons are employed. Any finding of fact made by the department in making such an order shall be prima facie evidence in any proceeding to enforce such order. The department shall consult and advise with the owner of any factory or establishment, or with any municipality, discharging any substance into the Charles river or any of its tributaries, at his or its request or of the department’s own motion, as to the best practicable and reasonably available method of making such substance harmless. The supreme judicial and the superior court shall have jurisdiction in equity to enforce any order made by the department hereunder. Proceedings to enforce any such order shall be instituted and prosecuted by the attorney general upon the request of the department. Whoever violates any order of the department made under authority of this section shall be punished by a fine of not less than twenty-five nor more than one thousand dollars.
Chapter 111: Section 176 to 180. Repealed, 1938, 265, Sec. 17 Chapter 111: Section 18. Powers and duties of district health officer Section 18. Every district health officer shall inform himself respecting the sanitary condition of his district and concerning all influences dangerous to the public health or threatening to affect the same; he shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district, shall disseminate knowledge as to the best methods of preventing the spread of such diseases, and shall take such steps as, after consultation with the department and the local authorities, shall be deemed advisable for their eradication.
Chapter 111: Section 181. Enforcement of vaccination of inhabitants of towns Section 181. Boards of health, if in their opinion it is necessary for public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants of their towns, and shall provide them with the means of free vaccination. Whoever refuses or neglects to comply with such requirement shall forfeit five dollars.
Chapter 111: Section 182. Vaccination of inmates of institutions supported by aid of commonwealth Section 182. The board of health of a town where any incorporated manufacturing company, infirmary, training or industrial school, hospital or other establishment where the poor or sick are received, prison, jail or house of correction, or any institution supported or aided by the commonwealth, is situated may, if it decides that it is necessary for the health of the employees or inmates or for the public safety, require the authorities of said establishment or institution, at the expense thereof, to cause all said employees or inmates to be vaccinated.
Chapter 111: Section 183. Exemptions Section 183. Any person over eighteen presenting a certificate, signed by the register of a probate court, that he is under guardianship shall not be subject to section one hundred and eighty-one; and any child presenting a certificate, signed by a registered physician designated by the parent or guardian, that the physician has at the time of giving the certificate personally examined the child and that he is of the opinion that the physical condition of the child is such that his health will be endangered by vaccination, shall not, while such condition continues, be subject to the two preceding sections.
Chapter 111: Section 184. Establishment and maintenance of bacteriological laboratories Section 184. In order to better preserve public health and secure greater accuracy in the diagnosis of communicable diseases, county commissioners may establish and maintain bacteriological laboratories, or provide such laboratory facilities for their respective counties as they deem advantageous, and may expend necessary sums therefor. No expenditures shall be made under this section until the laboratories or the laboratory facilities established or provided in accordance herewith have been inspected and approved by the department.
Chapter 111: Section 184A. Certificates of approval relative to bacteriological laboratories; rules and regulations; renewals; fees Section 184A. The department, at the request of any person owning or operating a bacteriological laboratory, may issue a certificate of approval of the performance at such laboratory of bacteriological or serological tests set forth in such certificate; provided, that no such certificate shall be granted hereunder except in accordance with such suitable and reasonable rules and regulations as the department shall establish; authority to establish, and from time to time to alter and amend, such rules and regulations being hereby granted to the department. Rules and regulations governing approval of such bacteriological laboratories made under authority hereof may include provisions relative to the location and equipment of such laboratories, the personal and professional qualifications of the personnel thereof, and the methods employed thereat. The department may from time to time submit to, or request from, any such laboratory such specimens for examination as it may deem necessary to determine whether or not such laboratory can properly perform such tests. Certificates of approval issued under authority hereof shall be valid for one year from their dates of issue and may be annually renewed. The fee for the issue, and for each annual renewal, of every such certificate shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven; provided, that no such fee shall be charged or collected on account of any such laboratory established and maintained by the commonwealth or by any political subdivision thereof. Any such certificate may be revoked by the department, after thirty days’ notice to such laboratory and the opportunity to be heard by the department, if in its judgment the public interest so requires.
For the purposes of this section, a bacteriological laboratory is defined to be a place or establishment advertised, and maintained or purported to be maintained, in whole or in part, for the purpose of accepting for and subjecting to bacteriological or serological study or analysis, or both, specimens of blood, sputum, urine, feces or other fluids, secretions or excretions of the body of persons ill, or suspected of being ill, with a disease dangerous to the public health, or of the body of persons who are to serve as donors or recipients of blood or derivatives of blood.
The department is hereby further authorized to grant certificates of approval for laboratory tests upon milk, foods, eating utensils, water and sewage in accordance with such rules and regulations as the department may establish under the authority granted above. Only one certificate and one fee shall be required for all of the tests mentioned in this section.
Chapter 111: Section 184B. Blood banks Section 184B. No blood bank, so-called, shall be established and maintained in the commonwealth except by a hospital licensed by the department under the provisions of section fifty-one. The American Red Cross, the Center for Blood Research, Inc.
, federal hospitals, and hospitals operated by the department of public health may establish and maintain a blood bank, provided that such blood bank is approved by the commissioner and the public health council as meeting all applicable regulations developed under the authority of this chapter.
Any violation of this section shall be punished by a fine of not more than five hundred dollars or the revocation of the right to establish and maintain a blood bank, or both.
Chapter 111: Section 184C. Donation by minors Section 184C. A minor 17 years of age or older may donate his blood without the prior assent thereto by his parent or guardian.
Chapter 111: Section 185. Disinfecting public mutoscopes and other apparatus Section 185. The proprietor or manager of any place of public amusement or other place where there are provided for public use and entertainment mutoscopes or any other machine or apparatus of such nature that the person using the same breathes or speaks into it, or, to see or hear, holds any part thereof in contact with or near to his eyes or ears, shall disinfect the same, in such manner as shall be approved by the board of health, at least twice during such hours, in every twenty-four hours, as the machine or apparatus is offered for use by the public. This section shall not apply to telephones.
Chapter 111: Section 185A. Rules of instruction, test cards and other appliances Section 185A. The department of public health, after consultation with the department of education, shall prescribe and furnish to school committees suitable rules of instruction, test cards, blanks, record books and other useful appliances for accomplishing the purposes of sections fifty-three to fifty-seven, inclusive, of chapter seventy-one and may furnish said material to such boards of health as may require it in the performance of their duties. The department may provide for pupils in the teachers colleges instruction and practice in the best methods of testing the sight and hearing of children.
Chapter 111: Section 186. Public use of machines requiring application of lips Section 186. No person shall provide for public use or entertainment in any place of public amusement or other place of public resort any so-called lung testing machine or similar contrivance the use of which requires the application of any part thereof to the lips. Violations of this or the preceding section shall be punished by a fine of not more than twenty-five dollars.
Chapter 111: Section 186A. Shoe-fitting machines; restrictions on use; penalty Section 186A. No person shall operate or maintain a shoe-fitting device or machine which uses fluoroscopic, X-ray or radiation principles, except for diagnostic or therapeutic purposes by or under the direction of a physician or podiatrist registered under the laws of the commonwealth. Violations of this section shall be punished by a fine of not more than twenty-five dollars.
Chapter 111: Section 186B. Sale of “flammable” fabric or related material to be used for children’s sleepwear; penalties Section 186B. It shall be unlawful to sell or offer for sale any fabric or related material or finished piece of clothing which is designed to be used in the manufacture, or sold as items, of children’s sleepwear up to and including size 14, when such fabric or related material or finished piece of clothing shall be defined as “Flammable” under the provisions of chapter ninety-four B. Whoever himself or by his servant or agent, violates any provision of this section shall, for the first offense, be punished by a fine of not less than fifty nor more than two hundred dollars; and, for the second or subsequent offense, by a fine of not less than two hundred nor more than one thousand dollars, or by imprisonment for not more than ninety days, or both.
Chapter 111: Section 187. Enforcement of chapter Section 187. The supreme judicial or superior court, upon the application of the board of health of a town, may enforce the orders of said board relative to public health. Sections eleven and twelve of chapter two hundred and fourteen shall apply to such cases; but a jury may be summoned under said sections, if there is no sitting of the court, within one month after issues have been framed.
Chapter 111: Section 188. Disposition of fines and forfeitures Section 188. Fines and forfeitures incurred under the general laws, the special laws applicable to a town, or the ordinances, by-laws and regulations of a town, relative to health, shall enure to the use of such town except where the forfeiture is incurred by said town.
Chapter 111: Section 189. Application of chapter to cities Section 189. Unless the context otherwise requires, the provisions of this chapter shall apply to cities so far as consistent with their several charters.
Chapter 111: Section 189A. Definitions Section 189A. For the purposes of this section and sections one hundred and ninety to one hundred and ninety-nine B, inclusive, the following words shall, unless the context clearly indicates otherwise, have the following meanings:—“Abatement”, the removal and replacement of paint, plaster or other accessible structural material containing dangerous levels of lead.
“Advisory committee”, the committee established in section one hundred and ninety.
“Commissioner”, the commissioner of public health.
“Containment”, the encapsulation, covering or enclosing by means authorized by the director, of paint, plaster or other accessible structural material containing dangerous levels of lead.
“Department”, the department of public health.
“Director”, the lead poisoning control director provided for in section one hundred and ninety.
“Owner”, any person who alone or jointly or severally with others (i) has legal title to any premises; (ii) has charge or control of any premises as an agent who has authority to expend money for compliance with the state sanitary code, executor, administrator, trustee or guardian of the estate or the holder of legal title; (iii) is an estate or trust of which such premises is a part, or the grantor or beneficiary of such an estate or trust; or (iv) is the association of unit owners of a condominium or cooperative, which shall be considered an owner solely with respect to common areas and exterior surfaces and fixtures of such condominium or cooperative; provided, however, that the term “owner” shall not include a secured lender except to the extent provided in section one hundred and ninety-seven D.
“Premises”, any residential premises, dwelling unit or residential property constructed prior to nineteen hundred and seventy-eight.
Chapter 111: Section 19. Annual report of district health officer Section 19. Every such officer shall keep a record of his proceedings and observations, shall annually on or before December first make a report thereof to the department, shall from time to time furnish the department with such information as it may require of circumstances affecting the public health in his district, and shall in every instance where a written suggestion is made by him to the local authorities send a copy of such suggestion to said department.
Chapter 111: Section 190. Statewide program; director; advisory committee Section 190. Subject to appropriation, the department shall establish a statewide program for the prevention, screening, diagnosis and treatment of lead poisoning, including elimination of the sources of such poisoning, through such research, educational, epidemiologic and clinical activities as may be necessary.
The commissioner shall appoint a lead poisoning control director, who shall serve at the pleasure of the commissioner. The director shall be responsible, subject to the authority of the commissioner, for carrying out and administering all programs created pursuant to this section and sections one hundred and ninety-one to section one hundred and ninety-nine B, inclusive, except as otherwise indicated herein. The director may contract with any agencies, individuals or groups for the provision of necessary services, subject to appropriation; and shall issue and from time to time, amend, such rules and regulations as may be necessary; provided, however, that such rules, regulations or amendments shall be filed with the joint committee on health care and the joint committee on housing and urban development at least thirty days before the effective date of such rules, regulations and amendments.
The governor shall appoint an advisory committee for the lead poisoning prevention program, which shall consist of fourteen members who shall serve at the pleasure of the governor. At least four of said fourteen members shall be physicians or persons active in the field of public health; at least one of said members shall be a representative of the Massachusetts Association of Community Development Corporations; at least two of said members shall be parents of children under six years of age who reside in lower-income urban areas; at least one of said members shall be a representative of the Massachusetts Rental Housing Association; at least one of said members shall be a representative of the Massachusetts Bankers Association; at least one of said members shall be a representative of the Massachusetts Association of Realtors; and at least one of said members shall be a representative of the property and casualty insurance industry. The committee shall advise the director on matters of policy; shall be consulted by the director prior to the issuance of rules and regulations; and shall perform such other duties as the director may request. The members of the advisory committee shall not be paid for their services, but they may be reimbursed for travel and other expenses necessary for the performance of their duties.
Chapter 111: Section 191. Reports of lead poisoning; notifications to agencies; records Section 191. Any examining physician, hospital, public health nurse or other diagnosing person or agency shall report to the director the existence and circumstances of each case of lead poisoning known to them and not previously reported. Such reports shall be made on forms prescribed by the director, and shall be submitted not later than three days after said person or agency first diagnoses or is informed of such case. The director shall by regulation with the advice of the advisory committee and in accordance with sound medical practice define the terms “lead poisoning” and “previously reported”.
When a case of lead paint poisoning is reported to the director, he shall inform such local boards of health, public health agencies and other persons and organizations as he deems necessary; provided, however, that the name of any individual contracting lead poisoning shall not be included unless the director determines that such inclusion is necessary to protect the health and well-being of the affected individual.
The director shall maintain comprehensive records of all reports submitted pursuant to this section. Such records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. Such records shall be public records, subject to the provision of the preceding paragraph relating to the names of individuals.
Chapter 111: Section 192. Educational and publicity program Section 192. The director shall institute an educational and publicity program, in order to inform the general public, and particularly parents of children residing in areas of significant exposure to sources of lead poisoning; teachers, social workers and other human service personnel; owners of residential property, particularly property constructed previous to the year nineteen hundred and forty-five; and health services personnel, and particularly interns, residents and other intake personnel at major hospitals, of the dangers, frequency, and sources of lead poisoning, and the methods of preventing such poisoning.
Chapter 111: Section 192A. Field testing and approval of new methods of removing paint and other materials Section 192A. The director shall investigate, field test and approve new methods of removing or covering paint, plaster, or other materials containing dangerous levels of lead that facilitate compliance with section one hundred and ninety-seven with greater efficiency, safety or economy. The director shall consult with the department of labor and workforce development prior to field testing or approval of new methods of removal or covering to ensure that these methods are consistent with regulations and laws concerning the occupational safety and health of workers engaged in deleading operations. The director shall establish a task force composed of appropriate representatives of the public and private sectors to review, evaluate and recommend such new methods. The director may contract with persons to support research and development of such new methods.
Chapter 111: Section 192B. Preparation of educational materials Section 192B. The department of public health’s childhood lead poisoning and prevention program shall, subject to appropriation, promote the education of all persons, including parents and property owners, on lead poisoning and its prevention. The director of said program shall prepare educational materials, the content of which shall include, but not be limited to, a discussion of safety measures, which can be taken to reduce the incidence of lead poisoning in children; available community and health care resources in all geographic regions of the commonwealth useful in the matter of lead poisoning prevention and treatment; legal rights and remedies under section one hundred and ninety-seven, and any other information deemed important by the director and the advisory council with regard to said matter. The director of said program shall also work with the representatives of the banking industry, a designee from the Massachusetts Bankers Association and officials from various state quasi-public agencies involved in providing lead paint abatement financing to develop educational materials including a resource or financing guide on programs available for lead paint abatement. Such educational materials shall be made available to, but not be limited to, hospitals, physicians’ offices, community health centers, educational institutions, day care centers, and programs providing public assistance or social services. The director may contract or associate with public and private agencies and organizations for the preparation of said educational materials on lead poisoning prevention, other pertinent resource information on the matter of lead poisoning and conducting educational programs.
Publication of educational materials shall not subject any agency or organization to liability under section one hundred and ninety-nine.
Chapter 111: Section 193. Early identification program; examination and reports Section 193. The director shall establish a program for early identification of cases of lead poisoning. Such program shall systematically screen all children under six years of age for the presence of lead poisoning. The director shall, after consultation with recognized professional medical groups and such other sources as he deems appropriate, promulgate regulations establishing (1) the means by which and the intervals at which children under six years of age shall be screened for lead poisoning and (2) guidelines for the medical follow-up of children found to be lead poisoned. The director may also prescribe a screening schedule for pregnant women, children six years of age and older including such children who exhibit pica, and persons whose cognitive development is delayed or retarded if he finds such additional screening to be medically warranted. Such program shall employ, to the extent possible, residents of the areas in which screening and examinations are conducted, which residents shall not be subject to the provisions of chapter thirty-one, unless required as a condition for receipt of federal funds, or section nine A of chapter thirty.
Such identification program shall, to the extent that all children residing in the commonwealth are not systematically screened, give priority in screenings to children residing, or who have recently resided, in areas where significant numbers of lead poisoning cases have recently been reported or where other reliable evidence indicates that significant numbers of lead poisoning cases may be found.
When the director is informed of a case of lead poisoning pursuant to section one hundred and ninety-one, or otherwise, he shall cause to have screened all other children under six years of age, and such other children as he may find advisable to screen, residing or recently residing in the household of the victim, unless the parents of such child object to said screening because it conflicts with their religious beliefs and practices. The results of such screenings shall be reported to the director, to the person or agency reporting the original case pursuant to section one hundred and ninety-one, and to such other persons or agencies as the director deems advisable.
The director shall maintain comprehensive records of all screenings conducted pursuant to this section. Such records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. Such records shall be public records, subject to the provision of section one hundred and ninety-one relating to the names of screened individuals. A summary of the results of all screenings conducted pursuant to this section shall be released quarterly, or more frequently if the director so determines, to all interested parties.
All cases or probable cases of lead poisoning, as defined by regulation by the director, found in the course of screenings conducted pursuant to this section shall be reported immediately to the affected individual, to his parent or legal guardian if he is a minor, and to the director. The director shall inform such persons or agencies as he deems advisable of the existence of such case or probable case, subject to the provision of section one hundred and ninety-one relating to the names of individuals.
Chapter 111: Section 194. Detection of sources of lead poisoning; inspection; search warrant; notice; examination of children; reports; records Section 194. The director shall, subject to appropriation, establish a comprehensive program for detection of sources of lead poisoning. Such program shall attempt, to the extent permitted by appropriations, to locate all premises in which the paint, plaster or other accessible structural material contains dangerous levels of lead. The means of detection and the amount of lead in the paint, plaster or other accessible structural material that produces the danger of lead poisoning shall be determined by regulation by the director in accordance with sound medical practice and current technical knowledge.
Such program of detection may, to the extent that all appropriate premises are not inspected, give priority in inspections to those premises located in areas where significant numbers of lead poisoning cases have been reported, and in which children under six years of age reside.
Upon the request of any occupant and subject to appropriation, the director shall cause to have the occupant’s premises inspected, within a reasonable time, not to exceed ten days, unless systematic inspection of the area in which the person requesting the inspection resides is scheduled within thirty days, in which case said inspection may be deferred up to twenty additional days.
When the director is informed of a case of lead poisoning, he shall cause to have inspected the premises in which the victim resides, or has resided within the past twelve months, if the occupants of said premises consent, after reasonable notice, to such inspection. If the occupant refuses admittance, an agent of the director or of any local board of health or code enforcement agency may apply for a search warrant to permit entry. A court may issue a warrant upon a showing that a victim of lead poisoning resides in said premises. The findings of such inspection shall be reported to the director and to the appropriate enforcement authorities.
A dangerous level of lead found in premises inspected pursuant to this section or otherwise, shall be reported immediately to the owner of the building, all mortgagees and lien holders of record, the director, and all affected tenants as outlined below. The owner of such building shall comply with any order to correct violations issued by the director, any local board of health or any code enforcement agency within the time established by regulations promulgated by the director. Except as otherwise provided, abatement or containment of lead shall not be required unless the premises has been occupied by a poisoned child within the past twelve months or is occupied by a child under six years of age. When dangerous levels of lead are present on the exterior of the building or in common areas, notice shall be given to all occupants of the building; and when such levels are present only within particular premises, notice shall be given to the occupants of the premises involved. The director shall promulgate regulations specifying the form and content of all required notices.
When a dangerous level of lead is found in premises inspected pursuant to this section, or otherwise, the director shall cause to have screened all children under six years of age, and such other children as he may find advisable to screen, residing or who have resided within the past twelve months in said premises. The results of such screening shall be reported to the director and the affected child’s parent or legal guardian. The director shall inform such other persons or agencies as he deems advisable, subject to the provisions of section one hundred and ninety-one relating to the names of affected individuals.
The director shall provide by regulation for the implementation by local boards of health, code enforcement agencies and housing inspection agencies of the provisions of this section and the periodic reporting to him of the results of all inspections of premises conducted hereunder by said boards and agencies.
The director shall maintain comprehensive records of all inspections conducted pursuant to this section. Such records shall be geographically indexed in order to determine the location of areas of relatively high incidence of dangerous lead levels. Such records shall be public records. A summary of the results of all inspections conducted pursuant to this section shall be released annually, or more frequently if the director so determines, to all interested parties.
Chapter 111: Section 194A. Repealed, 1993, 482, Sec. 6 Chapter 111: Section 195. State laboratory for lead and lead poisoning detection; specimen analysis; fee; report as prima facie evidence Section 195. The commissioner shall establish, within the Bureau of Institute of Laboratories, a state laboratory for lead and lead poisoning detection. Said laboratory shall analyze specimens received from children for the presence of lead poisoning, and samples of paint and other materials for dangerous levels of lead.
Said laboratory shall analyze tests and samples submitted by persons and agencies not within the department as its facilities permit, and may charge for such services a fee not greater than the cost to it of such services. When certified as a true copy by the custodian of such records, a copy of any report of said laboratory or any division thereof, or of any local board of health, code enforcement agency, or housing inspection agency duly trained and authorized by the director to implement the provisions of this chapter and to conduct inspections for the presence of dangerous levels of lead or lead determinations shall be admissible in any judicial proceeding without further authentication by either the laboratory or by the agency for which said report was made and shall be prima facie evidence of the facts stated therein.
Chapter 111: Section 196. Prohibited acts; punishment; embargo of personal property Section 196. (a) No person shall apply or cause to be applied any lead-based paint, glaze or other substance to any toy, furniture, cooking, drinking, or eating utensil, or interior or exterior surface or fixture of any dwelling; and no person shall sell, expose for sale, deliver, give away or possess with intent to sell, deliver or give away any toy, furniture, cooking, drinking or eating utensil to which any lead-based paint, glaze or other substance has been applied.
Any paint, glaze or other substance shall be deemed to be lead-based when it contains more than six one-hundredths of one per centum lead by weight, and for such substances manufactured prior to June twenty-third, nineteen hundred and seventy-seven one-half of one per centum lead by weight (calculated as lead metal) in the total non-volatile content of liquid paints or in the dried film of paint or glaze already applied, or when it contains a substantially equivalent amount of lead measured by such alternative reliable method of measurement as the director shall by regulation establish.
Any person who violates the provision of this subsection shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars for each violation. Each article, surface or fixture to which a lead-based substance is applied shall constitute a separate violation. Any person who willfully violates the provisions of this subsection shall be punished by imprisonment for not more than three months for each violation.
Any article of personal property in violation of this subsection may be embargoed by the director in the manner provided in section one hundred eighty-nine A of chapter ninety-four.
(b) No person shall sell, expose for sale, deliver, give away or possess with intent to sell, deliver or give away any lead-based paint, glaze or other surface covering including raw lead or the raw lead compounds utilized in the home manufacturing of glazes, as defined in subsection (a); provided, however, that the director may by regulation with the concurrence of a majority of the advisory committee exempt from the provisions of this subsection certain lead-based paints that are not intended or suitable for use on or within residential premises, and are not advertised or labeled as intended or suitable for such uses, and are not sold to the general public on a retail basis, when he finds with substantial certainty that the sale or use of said paints will not result in the exposure of children younger than six years of age to said paints and will not result in an additional danger to life or health for such children or for the general public. The director may by regulation with the concurrence of a majority of the advisory committee exempt from the provisions of this subsection certain lead-based ceramic glazes or the raw lead and raw lead compounds utilized in the home manufacturing of glazes on such terms as he finds will not result in an additional danger to life or health.
Whoever violates the provisions of this subsection shall be punished by a fine of not less than two hundred dollars nor more than five hundred dollars for each violation. Each can, bottle or other container of any prohibited substance shall constitute a separate violation. Whoever willfully violates the provisions of this subsection shall be punished by imprisonment for not more than six months for each violation. Any article or substance in violation of this subsection may be embargoed by the director in the manner provided in section one hundred eighty-nine A of chapter ninety-four.
Chapter 111: Section 197. Duty of residential premises owners; interim control measures; removal or cover of offending paint, soil, or material Section 197. (a) Whenever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials in accordance with the requirements of subsection (b) or (c). Except as provided in section one hundred and ninety-seven D, whenever any such premises containing said dangerous levels of lead undergoes a change of ownership and as a result a child under six years of age will become or will continue to be a resident therein, the new owner shall have ninety days to contain or abate said paint, plaster or other accessible structural material as required by this section, so as to make the premises in compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive.
(b) Owners shall be eligible to contain and control paint, plaster or other accessible structural materials containing dangerous levels of lead on an interim basis until achieving full compliance as set out in subsection (c), in accordance with measures defined in an emergency lead management plan, and a letter of interim control issued by a licensed inspector pursuant thereto. If, in the determination of a licensed inspector, the condition of such premises make it ineligible for interim control under an emergency lead management plan, the owner shall be required to satisfy the requirements of subsection (c) and receive a letter of full compliance, provided that secured lending institutions shall be governed by the provisions of section one hundred and ninety-seven D.
The director shall promulgate regulations to establish a program of interim control measures that are eligible to be used in emergency lead management plans to address urgent lead paint hazards that include, but are not limited to, paint containing a dangerous level of lead that is chipping, peeling or flaking, and highly lead-contaminated dust. Interim control measures shall be used to address said urgent lead hazards until a letter of full compliance has been obtained pursuant to subsection (c), and all emergency lead management plans shall include full compliance in accord with subsection (c) as their ultimate goal. Only in the instance of a waiver by the department, shall an owner be eligible for an emergency lead management plan and letter of interim control for premises in which a lead-poisoned child resides. The owner of premises containing a dangerous level of lead may obtain approval for an emergency lead management plan from an inspector licensed under section one hundred and ninety-seven B after an inspection and assessment of the premises by said inspector, and for a letter of interim control by such a licensed inspector certifying compliance with the emergency lead management plan and regulations promulgated by the director under this section. Said regulations shall, at minimum, include the following:(1) a determination by the inspector regarding the need to correct structural defects, including roof and plumbing leaks, and deteriorating windows, which may cause damage to surfaces containing dangerous levels of lead, and a requirement that any such defects found be repaired or replaced, as needed, to prevent damage to interior surfaces containing lead;(2) abatement or containment of all peeling paint and installing safeguards to protect intact paint, plaster or other accessible structural material on both interior and exterior surfaces and fixtures;(3) removal of lead dust using specified methods, unless the initial inspection indicates that there is no peeling paint and that surface dust levels meet specified standards;(4) provision of educational materials prepared by the department to tenants occupying the affected premises, as well as compliance with the tenant notification provisions of section one hundred and ninety-seven A;(5) correction of any other lead paint condition which the director determines poses an urgent risk of lead poisoning to children under age six;(6) requirement that all interim control work performed under this section comply with the requirements for use of licensed deleading contractors or for the abatement and containment activities by property owners contained in the regulations promulgated by the director pursuant to subsection (d); and(7) a final inspection by a licensed inspector, including testing to ensure that surface dust levels are within specified limits for particular surfaces.
A letter of interim control shall expire at the end of one year from the date of its issuance, and may be renewed once, for an additional one-year period, upon reinspection and recertification pursuant to this section by a licensed lead inspector, in accordance with regulations promulgated by the director. The revocation and subsequent recertification of a letter of interim control shall not extend the initial letter of interim control beyond the time period allowed by this section. An emergency lead management plan and letter of interim control shall be issued for the premises, not its owner, and shall remain in effect should ownership of the premises be transferred during the existence of the emergency lead management plan and the letter of interim control. A subsequent owner of premises under a pre-existing emergency lead management plan and letter of interim control shall be responsible for complying with the terms of said plan and letter. In no case shall premises be subject to an emergency lead management plan and letter of interim control for longer than two years.
A letter of interim control shall be revocable by operation of law upon occurrence of either of the following conditions: (i) expiration by its own term; (ii) upon the failure of the owner to bring the unit into compliance, or keep the unit in compliance, as required by this paragraph. If a licensed lead inspector finds that the premises contains peeling paint or otherwise fails to meet the standards of the emergency lead management plan and the letter of interim control, said inspector shall notify the owner of the premises, the director, the local code enforcement agency or board of health of said failure. The owner shall bring the premises into compliance with the emergency lead management plan and the letter of interim control within fourteen days of being notified to do so by the director, local code enforcement agency or board of health or licensed lead inspector, or within such greater period of time as may be allowed by the director, local code enforcement agency or board of health, or by judicial order.
No claim for strict liability may be brought under section one hundred and ninety-nine against the owner by an occupant or former occupant of premises for which a letter of interim control has been issued for damages caused by exposure to dangerous levels of lead during such period that the letter of interim control is in effect or within the fourteen day period after being notified to bring the premises into compliance discussed in the previous paragraph. During the period a letter of interim control is in effect, such owner shall take reasonable care to ensure that the premises are in compliance with the requirements of this subsection and the letter of interim control, and shall be liable for all damages caused by his breach of that duty of reasonable care.
(c) Owners may proceed either directly, or at the end of the process of interim control set out in a poisoning prevention management plan approved pursuant to subsection (b), to abate or contain paint, plaster or other accessible structural material in a particular premises in order to achieve full compliance. Prior to beginning such work, the owner or his agent shall notify the occupants of the premises, the director, the department of labor and workforce development and the local board of health or code enforcement agency of the date on which such containment and abatement for full compliance will occur, and the method or methods that will be used. Where containment or abatement is to occur in common areas, including the exterior, all occupants of the premises shall be notified in writing.
All containment or abatement for full compliance subject to this chapter shall, pursuant to regulations promulgated by the director to ensure the safety of occupants, be performed as follows:(1) All peeling paint, plaster or other structural material containing dangerous levels of lead, on both interior and exterior surfaces and fixtures shall be abated or contained.
(2) Intact paint, plaster or other accessible structural material containing dangerous levels of lead shall be contained or abated on door frames below the five foot level and four inches from all edges; stair rail spindles; stair treads from the lip to the riser on the bottom and four inches back from the lip on the top of the tread; doors below the five foot level and four inches from all edges; stair rails; porch railings; and all other exterior and interior surfaces and fixtures that may be readily mouthed by, or are otherwise accessible to, children. The director may, by regulation, require that in order to maintain the stability of any encapsulants used as a containing agent as part of the process to achieve full compliance, intact paint, plaster or other accessible structural material containing dangerous levels of lead be contained beyond the height of five feet and more than four inches from all edges.
(3) Peeling and intact paint, plaster or other accessible structural material containing dangerous levels of lead shall be contained or abated, on the interior and exterior surfaces of windows having sills below the five foot level when surfaces are either movable or impact on movable surfaces. Such surfaces shall include, but not be limited to, interior and exterior window sashes, window sills, and mullions; window wells and parting beads; headers on the lower side of the window that impact on the sash; and interior and exterior inner sides of the window casings that impact on the sash.
(4) Exterior paint containing dangerous levels of lead shall be contained or abated pursuant to regulations issued by the director, after consultation with the department of environmental protection specifying acceptable methods and prescribing encapsulation, shrouding or other containment methods; provided, however, that the director may ban sandblasting of exterior paint where he determines that children under six years of age are at risk of exposure to dangerous levels of lead. The use of potassium or sodium hydroxide in removing exterior lead-based paint shall be prohibited. Such regulations shall recommend appropriate methods of containment or abatement for properties listed on the state register of historic places. Local boards of health or code enforcement agencies shall enforce compliance with this regulation.
(5) Paint chips, dust and other debris created by the containment or abatement of interior or exterior paint shall be cleaned up by the person performing the containment or abatement in conformance with regulations promulgated by the director.
Upon the determination of a licensed inspector that the premises fully comply with the requirements of this subsection, said inspector shall issue a letter of full compliance for said premises. The director shall prepare one or more standard formats for letters of full compliance which may be revised from time to time as appropriate. All licensed inspectors shall use such standardized formats in issuing letters of full compliance.
Premises for which a letter of compliance has been issued prior to January first, nineteen hundred and ninety-four, pursuant to previous versions of this section and regulations promulgated thereunder, shall be deemed to be in full compliance with the provisions of this subsection, and shall be deemed to have been issued a letter of full compliance in accord with this subsection for all purposes of sections one hundred and eighty-nine A through one hundred and ninety-nine B, inclusive. Owners of such premises shall not be required to comply with any additional requirements of this subsection or of rules and regulations promulgated pursuant to said sections.
If a tenant believes that the premises fail to meet the standards of the letter of compliance or a licensed lead inspector finds that the premises fails to meet the standards of the letter of full compliance, said tenant or inspector shall notify the owner of the premises, the director, the local code enforcement agency or board of health of said failure. The owner shall ensure that the condition of the premises meets the standards required by the letter of full compliance within fourteen days of being notified to do so by the director, local code enforcement agency or board of health or licensed lead inspector, or within such greater period of time as may be allowed by the director, local code enforcement agency or board of health, or by judicial order.
No claim for strict liability may be brought under section one hundred and ninety-nine against an owner by an occupant or former occupant of premises for which a letter of full compliance has been issued and is in effect in accordance with this subsection.
(d) Containment or abatement, and daily and final cleanup of paint, plaster or other accessible structural material required under this section, whether undertaken for full compliance or as an interim measure under an emergency lead management plan, shall be conducted only by a contractor licensed by the department of labor and workforce development, except that the owner of premises or the owner’s agent, acting pursuant to regulations promulgated by the director specifying the conditions under which owners or their agents may undertake such containment or abatement, need not be licensed to engage in such activities. Any person who is not licensed may undertake containment or abatement activities only after successful completion of a course of instruction approved by the commissioner in consultation with the director detailing the proper methods and health hazards of containment or abatement and final cleanup of paint, plaster or other accessible structural material; provided further, that all containment or abatement activities by an unlicensed person shall be inspected and approved after completion by a licensed inspector. Such regulations shall include, but not be limited to, the removal of doors, windows, woodwork or other elements or fixtures containing dangerous levels of lead and shall address the presence of residents during deleading and cleanup; provided, that in no instance shall paint containing such dangerous levels of lead be stripped or scraped from the doors, windows, woodwork, elements or fixtures while residents are on the premises. The director shall make available to the public standard guidelines relative to owner deleading activities made permissible pursuant to this section.
(e) The director may waive or alter any requirements of this section concerning the required containment or abatement of paint, plaster or other accessible structural material on specified surfaces and fixtures or specified substrates upon a finding by the director that no substantial risk is posed to the health of children under six years of age by the continued presence of such paint, plaster or other accessible structural material.
(f) Under no circumstances shall repainting with a non-lead based paint, without containment or abatement of the offending paint, plaster or other accessible structural material, constitute compliance with either subsection (b) or (c).
(g) No person shall occupy the premises while containment or abatement of dangerous levels of lead paint, plaster or other accessible structural materials is taking place and until such time as the premises has been cleaned up and found to be in compliance with this section, except pursuant to regulations issued by the director. Such regulations shall provide that persons may occupy the premises pursuant to specified conditions established on a case-by-case basis by the director or local board of health or code enforcement agency upon a finding that such occupancy will not endanger or materially impair the health or the well-being of any occupant; provided, however, that pregnant women and children under the age of six are not permitted to occupy the dwelling unit during deleading activities.
(h) Any owner undertaking to abate or contain dangerous levels of lead in any dwelling unit may, at the owner’s option, reasonably delay the commencement of the tenancy until a letter of compliance or interim control certificate has been issued; provided, that no duly executed lease exists between owner and tenant; and provided, further, that no such delay shall exceed thirty days. During any such period of delay of occupancy the prospective tenant shall bear any living expenses. Should the owner decide to bring any residential premises into compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, while a tenant is occupying a dwelling unit, the owner shall have the right to move the tenant to a substitute dwelling unit upon reasonable notice; provided, however, that the owner pays reasonable moving expenses and any use and occupancy charges for a substitute dwelling unit which exceed the rent for the vacated dwelling unit for which the tenant remains responsible. A substitute dwelling unit shall be defined as one that does not cause undue economic or personal hardship to the tenant. If the tenant fails to accept the substitute dwelling unit selected by the owner during such period of time reasonably required to bring the vacated dwelling unit into compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, the owner shall have no obligation to reimburse the tenant for any expense or inconvenience other than moving expenses and any use and occupancy charges for the substitute dwelling unit selected by the owner which may exceed the rent for the vacated dwelling unit.
Chapter 111: Section 197A. Notice to prospective purchasers of premises; forms; letter of compliance; civil penalty Section 197A. Prospective purchasers of premises shall be notified about the hazards of lead in paint, plaster or other accessible structural material in premises and the requirements for their abatement or containment as follows:—(a) The director shall prepare a standard notification form and such other materials as may be necessary to inform prospective purchasers about the possible presence of dangerous levels of lead in such premises, the symptoms and treatment of lead poisoning, and the requirements of the lead law and regulations, including the provisions concerning liability for failure to abate or contain lead hazards and prohibitions against unlawful discrimination. The director shall prepare a separate notification form and materials for prospective purchasers of residential properties containing one or more rental units. Such rental property notification materials shall inform prospective purchasers about issues specific to rental properties, such as liability insurance and prohibitions against unlawful discrimination. Such forms and materials shall be revised from time to time as appropriate.
(b) All persons selling premises shall, prior to the signing of a purchase and sale agreement, provide a copy of the form and other materials prepared pursuant to subsection (a) to the prospective purchaser. Effective May first, nineteen hundred and ninety-four, all persons leasing premises with an option to purchase such premises shall, prior to the signing of the lease with an option to purchase, provide a copy of the form and other materials prepared pursuant to subsection (a) to the lessee-prospective purchaser. In addition to and at the time of providing said notification, the lessor-prospective seller shall provide the lessee-prospective purchaser with any letter of interim control for the premises issued pursuant to subsection (b) of section one hundred and ninety-seven, or any letter of full compliance for the premises issued pursuant to subsection (c) of said section, and such seller and any real estate agent involved in the sale shall disclose to the prospective purchaser any information known to the seller or real estate agent about the presence of paint, plaster, or other accessible structural materials containing dangerous levels of lead in the premises.
(1) The lessee-prospective purchaser shall also be informed by the lessor-prospective seller and any such real estate agent about the availability of inspections for dangerous levels of lead. If, after receiving said notice, the lessee-prospective purchaser chooses to have an inspection done, the lessor-prospective seller shall afford the lessee-prospective purchaser a period of ten days or such longer time as the parties may agree to have such inspection performed, through a lead inspection contingency provision in the purchase and sale agreement, or otherwise.
(2) If any real estate agent involved in the sale has provided the lessee-prospective purchaser with the required information and materials, he shall verbally inform the lessee-prospective purchaser of the possible presence of dangerous levels of lead and the provisions of sections one hundred and eighty-nine A through one hundred and ninety-nine B, inclusive, and regulations promulgated thereunder. At that time or at any time prior to signing of the purchase and sale agreement, any such real estate agent shall obtain the lessee-prospective purchaser’s certification that he has been notified.
(c) Nothing in this section or this chapter shall be construed to require the director, local boards of health or code enforcement agencies to conduct lead inspections the sole purpose of which is to inform sellers or prospective purchasers of premises about the presence of dangerous levels of lead in said premises.
(d) Tenants of premises and those prospective tenants who are about to enter an agreement to rent premises shall be notified about the hazards of dangerous levels of lead as follows:—(1) The director shall, by July first, nineteen hundred and ninety-four, prepare a standard notification brochure and such other materials as may be necessary to inform such tenants and property owners about the hazards associated with dangerous levels of lead; the symptoms and treatment of lead poisoning; measures which can be taken by parents and property owners to reduce the risk of lead exposure to children; and the requirements of sections one hundred and eighty-nine A through one hundred and ninety-nine B, inclusive, and regulations promulgated thereunder. Such materials shall also describe the significance of letters of interim control and letters of full compliance, and the need for tenants to promptly notify owners, the director, the local code enforcement agency or board of health in writing whenever an intact painted surface begins to peel or flake. The director shall also prepare a standard form to be distributed by owners to tenants and prospective tenants about to enter an agreement to rent the premises, which shall include the name, address and telephone number of the owner or the owner’s managing agent and the address and telephone number of the state childhood lead poisoning prevention program. In addition, the owner shall disclose any information actually known by the owner concerning the location of paint, plaster or other accessible structural materials containing dangerous levels of lead, including such intact paint, plaster or other accessible structural materials containing dangerous levels of lead which have been covered or encapsulated.
(2) Effective December first, nineteen hundred and ninety-four, prior to entering into a tenancy agreement, the owner of premises or such other person to whom rent is to be regularly paid, shall provide a prospective tenant who is about to enter such an agreement to rent premises with:(i) a copy of the materials and standard form completed pursuant to paragraph (1); (ii) a copy of the most recent lead paint inspection report, letter of interim control, letter of compliance or abatement plan applicable to the dwelling unit and to the common areas or exterior surfaces of the residential premises; and (iii) two copies of a statement certifying that the prospective tenant received all of the above materials, one copy of which is to be retained by the tenant and one by the owner. For purposes of this section, inclusion of such certification as a provision in a written tenancy agreement shall be permitted.
(e) Any owner who fails to comply with the provisions of this section shall be liable for all damages caused by the failure to comply and, in addition, shall be subject to assessment of a penalty not to exceed one thousand dollars. A violation of this section by a person engaged in trade or commerce shall be an unfair and deceptive act or practice as defined in section two of chapter ninety-three A.
(f) The receipt by a tenant or prospective tenant of a notification brochure or other disclosure materials from an owner pursuant to this section shall not be construed to bar any claim for liability by the tenant or his minor children against the owner. The disbursement by an owner of a notification brochure to a tenant shall not operate as an admission of liability to any claim for liability by the tenant or his minor children against the owner under any provision of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive.
Chapter 111: Section 197B. Lead paint inspectors; deleaders; licensure Section 197B. (a) The director shall, by July first, nineteen hundred and eighty-eight, establish regulations for the licensing of lead paint inspectors. The director shall prescribe the requirements for licensure and may set conditions and restrictions governing the revocation and suspension of licenses. The director shall periodically assess the number of applications for licensed lead paint inspectors and may, subject to appropriation, increase the frequency of training sessions required for licensure, if necessary, in order to process said applications in an efficient and timely fashion. The director may, subject to appropriation, ensure that there are a sufficient number of training sites available throughout the commonwealth.
(1) No persons shall enter into engage in or conduct lead paint inspections unless such person shall have received a license therefor.
(2) The director may, by regulation, authorize employees of the state program, local boards of health and code enforcement agencies to temporarily conduct inspections without receiving such a license during a period ending July first, nineteen hundred and ninety. The director shall set a date after which only licensed inspectors may conduct inspections adequate to comply with sections one hundred and eighty-nine A to one hundred and ninety-nine, inclusive, and to qualify for tax credits under paragraph (e) of section six of chapter sixty-two, but in no event shall that date be later than July first, nineteen hundred and ninety. The director shall also set out the conditions, if any, under which unlicensed inspectors may conduct such inspections during this transition period.
(b) The department of labor shall, by July first, nineteen hundred and eighty-eight and in consultation with the director, establish regulations for the licensing of deleaders. The department of labor shall prescribe the requirements for licensure and may set conditions and restrictions governing the revocation and suspension of licenses.
(1) Such regulations shall require the training of workers in subjects including, but not limited to, safe work practices, instruction in health risks, precautionary measures, protective equipment, and other safeguards, including practices to prevent contamination of the residential premises, ambient discharges and ground contamination. On site instruction shall be a component of the required training. Said department shall periodically assess the number of applications for licensed deleaders and may, subject to appropriation, increase the frequency of training sessions required for licensure, if necessary, in order to process said applications in an efficient and timely manner. Said department may, subject to appropriation, also ensure that there are a sufficient number of training sites available throughout the commonwealth. No person licensed as an inspector shall receive anything of value for referring any person to a licensed deleader. Violation of this subsection shall be punishable by license revocation and by civil penalty of not more than one thousand dollars.
(2) No person shall enter into engage in or conduct deleading operations unless such person shall have received a license therefor.
(3) The director of labor, jointly with the director, shall set a date after which only licensed deleaders may conduct removal and covering adequate to comply with section 197 and to qualify for tax credits under paragraph (e) of section 6 of chapter 62 but in no event shall the date be later than July 1, 1990. Said director of labor, jointly with the director, shall also set out the conditions, if any, under which unlicensed deleaders may conduct such removal and covering during this transition period.
(c) The department of labor shall, by July first, nineteen hundred and eighty-eight and in consultation with the director, promulgate regulations to protect the occupational safety and health of licensed lead paint inspectors and deleaders. Such regulations may be more, but not less, stringent than applicable federal standards. The department shall also, by July first, nineteen hundred and eighty-eight and in consultation with the director, promulgate regulations specifying licensing requirements and/or safety procedures to be used by all persons employed in performing renovations or rehabilitation in a manner that disturbs paint, plaster or other materials containing dangerous levels of lead.
(d) All private laboratories which perform lead testing for persons other than those engaged in deleading operations shall be certified by the department of public health and shall follow testing protocols established by the department of public health. Lead testing of workers engaged in deleading operations shall be performed by the department of labor or by laboratories certified by the department of labor and workforce development and the results of such testing shall be reported to the department of labor and the director.
(e) The director and the director of labor and workforce development shall charge fees for licensure and certification in an amount determined annually by the commissioner of administration under the provisions of section 3B of chapter 7.
(f) The director, with respect to licensing of lead paint inspectors under subsection (a), and the department of labor and workforce development, with respect to licensing of deleaders under subsection (b), shall enforce the provisions of this section as appropriate and shall have all necessary powers therefore.
(1) The appropriate agency may revoke, suspend, cancel or deny any certification or any license, at any time, if it believes that the terms or conditions thereof are being violated or that the holder of or applicant for the certification or license has violated any regulation of the department of public health or the department of labor and workforce development or any other regulation or law of the commonwealth. Any person aggrieved by a determination by the director or the department to issue, deny, revoke or suspend any certification or license may request an adjudicatory hearing under the provisions of chapter thirty A.
(2) Any person who violates the terms or conditions of any certification or license issued under this section or any regulation or law of the commonwealth concerning such licensing or certification shall be punished by a fine of not less than five hundred nor more than fifteen hundred dollars for each offense. The director or the department of labor and workforce development may file a written complaint with the district court in the jurisdiction in which the violation occurred. Punishment by fine under this section may be in addition to the suspension of any license or certification.
(3) A representative of the director or the department of labor and workforce development or a board of health or local code enforcement agency may issue an immediate cease-work order to any person who violates the terms or conditions of any license issued under this section or any provision of this section or section one hundred and ninety-seven or any regulation or order issued thereunder if such violation will endanger or materially impair the health or well-being of any occupant of a residential premises, any lead paint inspector, any deleader or any person employed in performing renovations or rehabilitation in a manner that disturbs paint, plaster or other materials containing dangerous levels of lead.
(4) Nothing in this section shall be construed to limit the authority of the department of labor and workforce development under chapter one hundred and forty-nine.
Chapter 111: Section 197C. Child exhibiting dangerous blood lead level after issuance of letters of compliance or interim control; liability Section 197C. (a) If, after the issuance of a letter of full compliance pursuant to subsection (c) of section one hundred and ninety-seven, a child under the age of six exhibits a blood lead level in excess of the level considered dangerous to the child’s immediate health as determined by the department, the director shall immediately review the appropriateness of the issuance and take such corrective measures as may be necessary. If after such a review, the director determines the issuance to be appropriate, the department shall conduct an environmental investigation to determine, to the extent possible, the cause of said excess blood lead level. In no event shall an owner of premises which have been issued a letter of full compliance be held strictly liable for injury or damage caused by exposure to dangerous levels of lead during such time that said letter of full compliance was in effect. Notwithstanding the provisions of this subsection, the owner shall remain subject to a standard of reasonable care relative to compliance within the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive.
(b) If, after issuance of a letter of interim control and during compliance with provisions of an emergency lead management plan, pursuant to subsection (b) of section one hundred and ninety-seven, a child under the age of six exhibits a blood lead level in excess of the level considered dangerous to the child’s immediate health as determined by the department, the department shall immediately review said interim controls and may alter any emergency lead management plan and letter of interim control previously issued so as to require the immediate abatement or containment of dangerous levels of lead in the premises wherein said child resides. In no event shall an owner in possession of a letter of interim control be held strictly liable for injury or damage caused by exposure to dangerous levels of lead during such time the letter of interim control is in effect.
Chapter 111: Section 197D. Secured lenders; liability Section 197D. (a) No secured lender shall be considered an owner for purposes of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, unless and until such secured lender has acquired legal title pursuant to applicable law, and takes actual physical possession, at which point he shall be considered an owner; provided, however, that a secured lender who has acquired legal title pursuant to applicable law shall be liable in any action brought pursuant to section one hundred and ninety-nine only to the following extent:—Within ninety days after acquiring legal title to a premises in which a child under the age of six resides, such secured lender shall either (i) obtain a letter of interim control pursuant to subsection (b) of section one hundred and ninety-seven, (ii) obtain a letter of full compliance pursuant to subsection (c) of said section one hundred and ninety-seven, or (iii) transfer the property following the procedures required by section one hundred and ninety-seven A. A secured lender who does not take one of such actions within the specified time period shall be fully liable for all damages, including punitive damages, under section one hundred and ninety-nine.
(b) A secured lender who has acquired legal title pursuant to applicable law of premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead may recover from the mortgagor any monies expended in bringing the premises into compliance with sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive; provided, however, that the mortgagor shall not be liable for such contribution if the mortgagor establishes that no child under six years of age resided in the residential premises while the premises were owned by the mortgagor.
(c) For the purpose of this section, the term “secured lender” shall mean (1) a person, corporation or other entity which holds indicia of ownership in a residential property primarily to protect that person’s security interest in said residential property; (2) two or more persons, corporations or other entities when one holds indicia of ownership in a residential property primarily to protect the other person’s security interest in that residential property, if the person, corporation or other entity, holding the indicia of ownership is (a) wholly owned by the person, corporation or other entity holding the security interest, or (b) an affiliate of the person, corporation or other entity holding the security interest and both are wholly-owned, directly or indirectly, by the same person, corporation or other entity and (3) persons, corporations or other entities which hold contractual participation rights in a security interest, and any of the following which hold indicia of ownership in a residential property primarily to protect that security interest: a wholly-owned subsidiary of any such person, corporation, or other entity; an affiliate of any such person, corporation, or other entity if both are wholly-owned, directly or indirectly, by the same person, corporation or other entity; and any entity formed among such persons, subsidiaries, or affiliates.
Chapter 111: Section 197E. Lead abatement loan program Section 197E. There shall be a loan program in the department of housing and community development for lead abatement throughout the commonwealth. Said program shall assist residential property owners in financing the abatement and containment of lead paint hazards. The director of housing and community development, in consultation with the commissioner and the lead poisoning control director, shall administer said program and may distribute funds through community action agencies, redevelopment agencies, local nonprofit community and housing agencies and other appropriate municipal and non-profit agencies and organizations. Loans under the program must be used for lead-paint abatement and containment activities.
Agencies and organizations eligible for loans under this program shall be selected by the director of housing and community development in consultation with the commissioner and the lead poisoning control director. Not less than one-half of funds allocated for this program shall be distributed to agencies and organizations serving high-risk areas and communities. Such high-risk areas and communities shall be chosen by the commissioner based upon the following criteria: the incidence of childhood lead poisoning reported in the previous five years; the proportion of residential housing stock containing lead paint hazards; the proportion of residents of low and moderate income; and the prior efforts of appropriate agencies and organizations to promote and carry out preventive measures designed to alleviate lead hazards. All agencies and organizations wishing to receive funding from this program shall submit to said secretary and the commissioner a report detailing a proposed plan to reduce lead paint hazards.
The director of housing and community development and the commissioner, subject to the consultation provisions of section one hundred and ninety of this chapter, shall promulgate regulations necessary to administer this program. Said director of housing and community development and the commissioner shall report to the clerks of the house of representatives and the senate not later than October first of each year concerning the distribution of loan funds under this program. Said director of housing and community development shall promulgate regulations which establish reasonable terms and conditions of such loans, including interest rates and maturity dates designed to encourage compliance with this chapter.
Chapter 111: Section 198. Violations of state sanitary code; enforcement Section 198. Violations of this section shall not constitute violations of the state sanitary code when (i) an owner has received a letter of full compliance, or (ii) an owner has received a letter of interim control; provided that in the case where an owner has received a letter of interim control and the tenant causes the unit to be inspected by a licensed inspector and found to be out of compliance, the sanitary code provisions will apply after fourteen days and until such time as the unit is recertified pursuant to subsection (b) of section one hundred and ninety-seven. If a tenant has a unit inspected by a licensed inspector, and the unit is found to be out of compliance, the owner shall pay the cost of such inspection. If a tenant has a unit inspected by a licensed inspector, and should the unit be found to be in compliance, the tenant shall pay the cost of such inspection.
Except as provided in the preceding paragraph, any violations of sections one hundred and ninety-six and one hundred and ninety-seven may be treated by any party as a violation of the state sanitary code and all procedures and remedies applicable to such violations of said sanitary code shall be available to correct, deter or punish violations of said sections. In any action in which a tenant is withholding rent due to lead paint and as a result of said action the landlord is required to abate, the judge, unless he finds that the landlord did not act in good faith shall order that any amounts that would be awarded to the tenant pursuant to a finding that the value of the housing was reduced by the violation of the lead law be applied to the costs of abatement; provided, however, that any amounts awarded to the tenant pursuant to a finding of any other violation of the sanitary code or any other law shall be retained by the tenant. The district, housing and superior courts shall have jurisdiction to enforce the provisions of said sections to the same extent that said courts have jurisdiction to enforce said sanitary code.
All local boards of health or other code enforcement agencies, including in the city of Boston the commissioner of housing inspection shall enforce sections one hundred and ninety-four A, one hundred and ninety-six and section one hundred and ninety-seven in the same manner and with the same authority as they may enforce the sanitary code. The director shall provide by regulation for the implementation by local boards of health, code enforcement agencies and housing inspection agencies of the provisions of this section and the periodic reporting to him of the results of all actions undertaken hereunder by said boards and agencies.
The director shall have concurrent responsibility and authority to enforce sections one hundred and ninety-four A, one hundred and ninety-six and section one hundred and ninety-seven and in so doing shall have available to him all powers and authority which shall be available to local boards of health pursuant to sections one hundred and twenty-seven A to one hundred and twenty-seven K, inclusive.
Violations of sections one hundred and ninety-four A, one hundred and ninety-six and section one hundred and ninety-seven shall be treated as emergency matters, and shall be given preference by enforcing agencies and speedy hearings by district, housing and superior courts.
Chapter 111: Section 199. Liability of owner of premises; punitive damages Section 199. (a) Except as provided in section one hundred and ninety-seven D, the owner of any premises shall be liable for all damages to a child under six years of age at the time of poisoning, upon proof that said child’s blood lead level equals or exceeds the blood lead level at which the department defines lead poisoning, that are caused by his failure to comply with the provisions and requirements of section one hundred and ninety-four, subsection (a) of section one hundred and ninety-six or section one hundred and ninety-seven, and regulations pursuant to said provisions. An owner of premises covered by a letter of full compliance in accordance with subsection (c) of section one hundred and ninety-seven, or a letter of interim control, in accordance with subsection (b) of section one hundred and ninety-seven, shall not be strictly liable under this section for damages caused to a child under six years of age at the time of poisoning, as defined in this section, by exposure to dangerous levels of lead. Notwithstanding the provisions of this subsection, during the period a letter of full compliance or a letter of interim control is in effect, the owner shall take reasonable care to ensure that the premises are in compliance with the requirements of subsection (c) of section one hundred and ninety-seven, in the case of premises covered by a letter of full compliance, or with the requirements of subsection (b) of section one hundred and ninety-seven and the emergency lead management plan, in the case of premises covered by a letter of interim control, and shall be liable for all damages caused by his breach of that duty of reasonable care.
(b) Except as provided in section one hundred and ninety-seven D, an owner of premises who is notified pursuant to the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, of a dangerous level of lead in paint, plaster, or other accessible structural material present upon his premises or who receives a notice or order to comply concerning dangerous levels of lead from the director, a local board or department of health or a code enforcement agency, and who willfully fails to take the actions required by the applicable provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, and regulations issued pursuant thereto, or the order to remedy said dangerous conditions by the deadlines contained in the applicable regulations or order, shall, in addition to the provisions of the subsection (a), be subject to punitive damages, which shall be treble the actual damages found.
(c) An owner who is held liable under this section and who seeks contribution pursuant to chapter two hundred and thirty-one B against the parent or guardian of a child who has been awarded damages under this section shall bring a separate action after a judgment has been entered against him; provided, however, that such action shall be brought within one year after the judgment has become final.
(d) Except as provided in section one hundred and ninety-seven D, the new owner of any premises which has undergone a change of ownership, and, either as a result of which a child under six years of age is or will be a resident of the premises, or the premises have been out of compliance with the requirements of this section and a child under six years of age will continue to reside in such premises, shall not be strictly liable for damages under this section if such new owner complies with the requirements of this chapter within ninety days after becoming the owner.
Chapter 111: Section 199A. Unlawful practices in selling, renting, or leasing premises containing lead in paint, plaster or materials Section 199A. (a) It shall be an unlawful practice for purposes of chapter one hundred and fifty-one B for the owner, lessee, sublessee, real estate broker, assignee, or managing agent of any premises to refuse to sell, rent, lease or otherwise deny to or withhold from any person or to discriminate against any person in the terms, conditions or privileges of the sale, rental or lease of such premises, because such premises do or may contain paint, plaster or accessible structural materials containing dangerous levels of lead, or because the sale, rental or lease would trigger duties under sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, or regulations promulgated thereunder, or because a person chooses to exercise any right under said sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, or regulations promulgated thereunder. Any person claiming to be aggrieved by an alleged unlawful practice as herein defined may file a complaint pursuant to section five of chapter one hundred and fifty-one B and all provisions of said chapter shall be applicable to such complaints.
(b) Refusing to rent to families with children in violation of paragraph eleven of section four of chapter one hundred and fifty-one B shall not constitute compliance with the lead law and regulations.
(c) Refusing to renew the lease of or evicting families with children shall not constitute compliance with the lead law and regulations. Such evictions shall also constitute a violation of section two of chapter ninety-three A and section eighteen of chapter one hundred and eighty-six.
Chapter 111: Section 199B. Exemptions from Secs. 189A to 199A Section 199B. The provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine A, inclusive, shall not apply to any dwelling unit having fewer than two hundred and fifty square feet of floor space calculated on the basis of total habitable room area or which is used as a rooming house; provided, that no person occupying said dwelling unit may be less than six years of age.
For the purpose of this section, “rooming house” shall mean every dwelling or part thereof which contains one or more rooming units in which space is let or sublet for compensation by the owner or operator to four or more persons not within the second degree of kindred to the person compensated. Boarding houses, hotels, inns, lodging houses, dormitories and other similar dwelling places shall be included, and “rooming units” shall mean the room or group of rooms let to an individual or household for use as living and sleeping quarters.
Sections one hundred and eighty-nine A to one hundred and ninety-nine A, inclusive and this chapter shall not apply to any unit for which a lease, rental, occupancy or tenancy is of thirty-one days or less in duration, which lease, rental or occupancy is for vacation or recreational purposes; provided, however, that said dwelling unit has no peeling or chipping paint, and the tenant has received the appropriate lead paint disclosure notification pursuant to regulations promulgated by the department of public health.
Chapter 111: Section 1A, 1B. Repealed, 1966, 685, Sec. 4 Chapter 111: Section 2. Duties of commissioner of public health Section 2. The commissioner shall administer the laws relative to health and sanitation and the regulations of the department, and shall prepare rules and regulations for the consideration of the council. The secretary of elder affairs and the commissioner shall jointly develop and submit to the council rules and regulations governing the licensure and operation of convalescent or nursing homes, rest homes, infirmaries maintained in a town and charitable homes for the aged. He may direct any executive officer or employee of the department to assist in the study, suppression or prevention of disease in any part of the commonwealth. He shall submit annually to the council a report containing recommendations in regard to health legislation.
The commissioner shall prepare from the birth, marriage and death records received by him under the provisions of chapter forty-six, and from the divorce returns received by him under the provisions of section forty-six of chapter two hundred and eight, such statistical tables as he deems useful, and shall make annual report thereof to the general court. The commissioner may transmit such information to the appropriate agency of the federal government to participate in the development of a cooperative system for producing uniform statistical information at the federal, state and local level. The commissioner may make further use of such records as he deems useful for administrative and research purposes connected with health programs and population studies. He shall, as soon as is reasonably practicable, cause the birth, marriage and death records to be bound with indexes thereto and shall retain their custody. He shall prepare an alphabetical index of such divorce returns showing the names of the parties, year and number of the judgment and the county in which the divorce occurred.
Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, including but not limited to the certification and licensure of providers of services under said chapter, the commissioner shall assure that such activity is reviewed by the commissioner of medical assistance.
The commissioner, subject to the approval of the governor, may make such rules and regulations governing the conduct of written and oral examinations by the several boards of registration and examination under the department as shall be necessary to standardize procedures and protect the commonwealth and applicants for registration against fraud. Nothing in this section shall prevent a board from adopting, under authority of other provisions of law, specific rules and regulations that are not in conflict with the rules and regulations authorized by this section.
Chapter 111: Section 20. Inspection of correctional institutions and lockups; findings and recommendations; report Section 20. The department shall, semiannually, inspect each correctional institution, as defined in section one of chapter one hundred and twenty-five, and shall, annually, inspect each lockup established pursuant to the provisions of section thirty-four of chapter forty or under the jurisdiction of the state police, and shall file a report of its findings and recommendations, with respect to the compliance of each such facility with the rules and regulations promulgated under the authority of section twenty-one, with the department of correction, the secretary of health and human services, the superintendent or administrator of each such facility and the general court.
Chapter 111: Section 200. Repealed, 1998, 180, Sec. 4 Chapter 111: Section 201. First aid training of emergency personnel, including cardiopulmonary resuscitation; standards; refresher course; coordination by department; personnel excepted Section 201. Members of police and fire departments, members of the state police participating in highway patrol, persons appointed permanent or temporary lifeguards by the commonwealth or any of its political subdivisions, and members of emergency reserve units of a volunteer fire department or fire protection district shall be trained to administer first aid, including, but not limited to, cardiopulmonary resuscitation by July first, nineteen hundred and seventy-eight, including those appointed on or after January first, nineteen hundred and seventy-six and may be trained in automatic or semi-automatic cardiac defibrillation. The training shall meet the standards for first aid training prescribed by the department and shall not be less than the standards established by the Committee on Cardiopulmonary Resuscitation and Emergency Cardiac Care of the American Heart Association, and shall be satisfactorily completed by them as soon as practical, but in no event more than one year after the date of their employment. Satisfactory completion of a refresher course approved by the department in cardiopulmonary resuscitation each year and in other first aid every three years shall also be required. The training and equipment for automatic or semi-automatic cardiac defibrillation shall meet standards prescribed by the department.
The department shall coordinate the provision, by county, of training required by this section. Such training shall be provided at no cost to the trainee.
This section shall not apply to police officers, fire fighters and persons engaged in police and fire work whose duties are primarily clerical or administrative.
Chapter 111: Section 202. Fetal deaths; reports; confidentiality; disposition of remains; violations; forms Section 202. As used in this section, “fetal death” means death prior to the complete expulsion or extraction from its mother of a fetus, irrespective of the duration of pregnancy, as indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. “Fetal death” does not include an abortion as defined in section twelve K of chapter one hundred and twelve.
When a fetal death occurs in a hospital, if a fetus is of twenty weeks gestation or more, or a weight of three hundred and fifty grams or more, the physician in attendance shall prepare and transmit a report of such death to the person in charge of the hospital or his designated representative, who shall file such report with the commissioner within ten days after such death.
When a fetal death occurs outside a hospital, if a fetus is of twenty weeks gestation or more, or a weight of three hundred and fifty grams or more, the physician in attendance at or immediately after delivery shall prepare and file a report of such death with said commissioner within ten days after such death.
When a fetal death occurs without medical attendance at or immediately after delivery or when the fetal death may have occurred from violence or unnatural causes, if a fetus is of twenty weeks gestation or more, or a weight of three hundred and fifty grams or more, the medical examiner shall investigate the cause and shall prepare and file a report of such death with said commissioner within ten days after such death.
Said commissioner may compile an annual statistical report of fetal deaths, and may make such further use of such records as he deems useful for administrative and research purposes connected with health programs and population studies.
Fetal death reports shall be confidential and shall be released by the department only upon written request of the parent, his or her guardian, executor, attorney, or any other person designated by the parent in writing. Such reports may also be released to the National Center for Health Statistics in the Department of Health, Education and Welfare, and to persons authorized by said commissioner under section twenty-four A of this chapter to conduct research studies. The department may release copies of such reports, or information contained therein, to other persons only in a manner which does not allow identification of the parents.
Disposition of fetal remains shall be made at the direction of the parent in either manner as hereinafter provided: the remains may be buried, entombed or cremated in accordance with chapter one hundred and fourteen and a copy of a report required by this section shall constitute the certificate required by section forty-five of said chapter one hundred and fourteen. Said copy shall, within thirty days after the issuance of a burial permit, be destroyed by the local board of health; or in all other circumstances, the fetal remains shall be disposed of by the hospital or as directed by the attending physician or medical examiner in a manner which does not create a hazard to the public health. Such disposition shall not be subject to the provisions of said chapter one hundred and fourteen. Before disposition, the physician or person in charge of the hospital shall ensure that the parent is informed of his right to direct either burial, entombment or cremation of the fetal remains, or disposal of the remains by the hospital or physician. Before disposition, the parent shall be informed in writing of the hospital policy relating to disposal of fetal remains, and shall be informed of the availability of a chaplain if any for counsel.
The provisions of chapter forty-six regarding the reporting of deaths shall not apply to fetal deaths.
A physician or medical examiner neglecting or refusing to file a report required by this section, or who makes a false statement therein, shall be subject to a fine of not more than fifty dollars.
The commissioner shall prescribe the form for the making of reports under this section, which shall be consistent with the United States standard report of fetal death.
Chapter 111: Section 203. Provider misconduct; medical peer review Section 203. (a) The by-laws of every licensed or public hospital and the by-laws of all medical staffs shall contain provisions for reporting conduct by a health care provider that indicates incompetency in his specialty or conduct that might be inconsistent with or harmful to good patient care or safety. Said by-laws shall direct a procedure for investigation, review and resolutions of such reports.
(b) Whenever, following review by a medical peer review committee of a licensed or public hospital determination is reached that a health care provider’s privileges should be suspended in the best interests of patient care, such committee shall immediately forward the recommendation to the executive committee of the medical staff and the institution’s board of trustees for action. A provider whose privileges are suspended shall be entitled to notice and a prompt hearing following suspension, in accordance with the institution’s medical staff by-laws.
(c) An individual or institution, including a licensed or public hospital, physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities, or licensed nursing home reporting, providing information, opinion, counsel or services to a medical peer review committee, or participation in the procedures required by this section, shall not be liable in a suit for damages by reason of having furnished such information, opinion, counsel or services or by reason of such participation, provided, that such individual or institution acted in good faith and with a reasonable belief that said actions were warranted in connection with or in furtherance of the function of said committee or the procedures required by this section.
(d) Every licensed hospital, as a condition of licensure, and every public hospital shall be required to participate in risk management programs established by the board of registration in medicine pursuant to section five of chapter one hundred and twelve; provided, however, that licensed or public hospitals which participate in pre-existing risk management programs may be exempted by regulations of the board from the requirements of this paragraph.
(e) Every licensed nursing home shall: (i) request from every physician providing medical care in the nursing home said physician’s name and license number; (ii) upon initial appointment of its medical director or physician advisor and biennially thereafter, inquire from a hospital where the physician has staff privileges and spends the greatest portion of his time, the status of said physician’s staff privileges, or if the physician has no such staff privileges, make such reasonable inquiry, as the board of registration in medicine by regulation may require, into the physician’s employment history and malpractice claims experience; (iii) report to said board any disciplinary action which the nursing home takes against any physician providing medical care in the nursing home; the nursing home shall report to the board any disciplinary action within thirty days of the occurrence of the reportable action; the report shall include a statement detailing the nature and circumstances of the action, its date, and the reasons for it; the nursing home shall file an annual disciplinary summary with the board; the annual disciplinary summary shall be filed no later than January thirty-first for each previous calendar year. The annual disciplinary summary shall summarize the reports submitted for the previous calendar year; the annual disciplinary summary shall be sent by certified or registered mail, and it shall be under oath; if the nursing home submitted no reports for the previous calendar year, then the annual disciplinary summary shall state that no reports were required; and (iv) simultaneously send to said board a copy of any report sent to the department of public health pursuant to the provisions of sections seventy-one and seventy-two, whenever any such report indicates incompetency of a physician or other conduct by a physician that seriously affects a nursing home patient’s health and safety. The types of incidents reported under this section, shall be jointly determined by the department of public health and the board of registration in medicine and may be set forth in regulations promulgated by the board.
(f) Every service, EMS first responder, emergency medical technician, every trauma center and regional EMS council licensed, certified or designated pursuant to chapter 111C, every physician providing medical direction under said chapter and every hospital affiliated with any such service shall participate in continuous quality improvement programs established under chapter 111C by the state medical director or by a regional medical director and conducted under said chapter by a medical peer review committee to review and evaluate the necessity, quality and effectiveness of the emergency medical care and specialty care services, including, without limitation, trauma care services in the commonwealth.
Chapter 111: Section 204. Confidentiality of proceedings, reports and records; exceptions; immunity Section 204. (a) Except as otherwise provided in this section, the proceedings, reports and records of a medical peer review committee shall be confidential and shall be exempt from the disclosure of public records under section 10 of chapter 66 but shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the department of public health pursuant to chapter 111C, and no person who was in attendance at a meeting of a medical peer review committee shall be permitted or required to testify in any such judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work or psychology or by the department of public health pursuant to chapter 111C, as to the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, deliberations or other actions of such committee or any members thereof.
(b) Documents, incident reports or records otherwise available from original sources shall not be immune from subpoena, discovery or use in any such judicial or administrative proceeding merely because they were presented to such committee in connection with its proceedings. Nor shall the proceedings, reports, findings and records of a medical peer review committee be immune from subpoena, discovery or use as evidence in any proceeding against a member of such committee to establish a cause of action pursuant to section eighty-five N of chapter two hundred and thirty-one; provided, however, that in no event shall the identity of any person furnishing information or opinions to the committee be disclosed without the permission of such person. Nor shall the provisions of this section apply to any investigation or administrative proceeding conducted by the boards of registration in medicine, social work or psychology or by the department of public health pursuant to chapter 111C.
(c) A person who testifies before such committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee’s proceedings, provided that, except in a proceeding against a witness to establish a cause of action pursuant to section eighty-five N of chapter two hundred and thirty-one, neither the witness nor members of the committee may be questioned regarding the witness’ testimony before such committee, and further provided that committee members may not be questioned in any proceeding about the identity of any person furnishing information or opinions to the committee, opinions formed by them as a result of such committee proceedings, or about the deliberations of such committee.
(d) A court or administrative body may place reasonable restrictions on the use which may be made of the information obtained hereunder so as to maintain, so far as necessary or practicable, the confidentiality of such information.
(e) No proceeding, report or record of a medical peer review committee obtained hereunder and disclosed in an action pursuant to section eighty-five N of chapter two hundred and thirty-one or a proceeding before an administrative body, shall be subject to subpoena or discovery, or introduced into evidence in judicial or administrative proceedings other than those proceedings or investigations specified in subsections (a) and (b).
Chapter 111: Section 205. Information and records necessary to comply with risk management and quality assurance programs; confidentiality; definitions Section 205. (a) As used in this section the following terms shall have the following meanings:“Health care facility”, any entity required to participate in risk management and quality assurance programs established by the board of registration in medicine.
“Patient care assessment coordinator”, a person or committee designated by a health care facility to implement and coordinate the facility’s compliance with risk management and quality assurance programs established by the board of registration in medicine.
“Risk management and quality assurance programs established by the board of registration in medicine”, programs and activities undertaken pursuant to regulations promulgated by the board of registration in medicine under section two hundred and three of this chapter and sections five and five I of chapter one hundred and twelve.
(b) Information and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of medical peer review committees, including incident reports required to be furnished to the board of registration in medicine or any information collected or compiled by a physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities shall be deemed to be proceedings, reports or records of a medical peer review committee for purposes of section two hundred and four of this chapter and may be so designated by the patient care assessment coordinator; provided, however, that such information and records so designated by the patient care assessment coordinator may be inspected, maintained and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit. Such information and records inspected, maintained or utilized by the board of registration in medicine shall remain confidential, and not subject to subpoena, discovery or introduction into evidence, consistent with section two hundred and four; however, such records may not remain confidential if disclosed in an adjudicatory proceeding of the board of registration in medicine, but the information and records shall be otherwise subject to the protections afforded by section two hundred and four. In no event, however, shall records of treatment maintained pursuant to section seventy of this chapter, or incident reports or records or information which are not necessary to comply with risk management and quality assurance programs established by the board of registration in medicine be deemed to be proceedings, reports or records of a medical peer review committee under this section; nor shall any person be prevented by the provisions of this section from testifying as to matters known by such person independent of risk management and quality assurance programs established by the board of registration in medicine.
Chapter 111: Section 206. Risk factors; wellness programs Section 206. The department shall establish a program to reduce the incidence among the general public of mortality and morbidity from accidents and diseases for which risk factors can be identified. Such risk factors shall include, but not be limited to emotional stress, lack of exercise, poor nutrition and diet, abuse of alcohol and other drugs, smoking, and exposure to toxic substances. Such diseases shall include, but not be limited to, heart disease, lung disease, cancer and stroke. The program shall educate and screen the general public and particular groups of the general public at risk with respect to particular diseases or accidents. The department shall encourage the development of programs for fitness and behavior changes, including dietary change and smoking cessation. The department, with the cooperation of the personnel administrator and the commissioner of public employee retirement, shall develop, implement, coordinate and monitor fitness and behavior change programs, to be known as wellness programs, for public employees. Such programs shall make use of existing resources, facilities and programs whenever possible; and shall provide for access to any such programs, resources and facilities at no cost to such employees.
The department shall promulgate minimum requirements for wellness programs. Such minimum requirements may vary according to the classification of the employees whom a program is to serve. Wellness programs may be phased in over a period of years, but shall be implemented first for police officers and firefighters to whom section sixty-one A of chapter thirty-one applies and next for employees to whom paragraph (e) of subdivision (3) of section five of chapter thirty-two applies. Minimum requirements for wellness programs for employees to whom said section sixty-one A and said paragraph (e) apply shall be designed to enable such employees to meet the respective health and physical fitness standards of said section sixty-one A and said paragraph (e).
Chapter 111: Section 207. Definitions Section 207. For the purposes of sections two hundred and eight to two hundred and fourteen, inclusive, the following words shall, unless the context clearly indicates otherwise, have the following meanings:“Board of health” or “board”, the board of health, including the board or officer having like powers and duties in towns where there is no board of health, with jurisdiction in the community in which a tanning facility is located.
“Phototherapy device”, equipment that emits ultraviolet radiation and is used by health care professionals in the treatment of disease.
“Tanning device”, any equipment used for tanning the skin that emits electromagnetic radiation with wavelengths in the air between two hundred and four hundred nanometers, including, but not limited to, a tanning booth, tanning bed or sunlamp which includes high pressure tanning lamps. Tanning device shall also include any accompanying equipment, including, but not limited to, protective eyewear, timers and handrails.
“Tanning facility”, any location, place, area, structure or business which provides access to a tanning device.
Chapter 111: Section 208. Licenses; necessity; expiration; fees; inspection of facilities; violations; revocation; appeals Section 208. No access shall be provided to any tanning device by a tanning facility until said facility has been granted a license therefor by the board of health. Each license granted hereunder shall expire one year from the date of its issue. The fee for each such license and annual renewal thereof shall be determined by the board. The board shall inspect each tanning facility within thirty days of licensure and every six months thereafter. A tanning facility which violates the provisions of this section, sections two hundred and nine to two hundred and fourteen, inclusive, or any other applicable law, rule or regulation shall have seven days after written notice of such failure in which to comply with such provisions. The board may revoke the license of a tanning facility which fails to comply after said seven days. Any person aggrieved by a determination of the board pursuant to sections two hundred and seven to two hundred and thirteen, inclusive, may appeal to the department within twenty days of said determination. Any person, including, but not limited to, the board, aggrieved by a determination of the department may appeal said decision pursuant to the provisions of section fourteen of chapter thirty A.
Chapter 111: Section 209. Statement of warning and notice; posting; form; acknowledgment by customer Section 209. A tanning facility shall give each customer a written statement of warning and shall post a notice in a conspicuous place in every area in which a tanning device is used. Said statement or notice shall be at least eight and one-half inches wide by eleven inches long and printed in white on a red background. Said statement and notice shall contain the following information in substantially the following form:DANGER: ULTRAVIOLET RADIATION.
1. Follow instructions.
2. Avoid too frequent or lengthy exposure. As with natural sunlight, exposure to a sunlamp may cause eye and skin injury and allergic reaction. Repeated exposure may cause chronic damage characterized by wrinkling, dryness, fragility, bruising of the skin and skin cancer.
3. Wear protective eyewear. FAILURE TO USE PROTECTIVE EYEWEAR MAY RESULT IN SEVERE BURNS OR LONG TERM INJURY TO THE EYES.
4. Ultraviolet radiation from sunlamps aggravates the effects of sun. Do not sunbathe before or after exposure to ultraviolet radiation.
5. Abnormal or increased skin sensitivity or burning may be caused by certain foods, cosmetics or medications, including but not limited to, tranquilizers, diuretics, antibiotics, high blood pressure medication, birth control pills and skin creams. Consult a physician before using a sunlamp if you are taking medication, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women on birth control pills who use a tanning device may develop discolored skin.
6. IF YOU DO NOT TAN IN THE SUN YOU WILL NOT TAN FROM USE OF THIS DEVICE. Use of a tanning device does not provide substantial protective base against the effects of the sun.
Each time a person uses a tanning facility, or each time a person executes or renews a contract to use a tanning facility such person shall sign a written statement acknowledging that such person has read and understood such warning.
Chapter 111: Section 21. Rules for living conditions of detainees; enforcement Section 21. The department shall make rules and regulations for police station houses, lockups, houses of detention, jails, houses of correction, prisons and reformatories, regarding the care and use of drinking cups and of dishes used for food, the care and use of bedding, appropriate clothing for detainees, the ventilation of the buildings, the minimum plumbing facilities for human habitation, and the general health and safety of the detainee. A copy of such rules as are applicable to station houses, houses of detention or lockups shall be sent by the said department to the mayor of every city and to the selectmen of every town to which the rules apply; and a copy of such rules as are applicable to jails, houses of correction, prisons or reformatories shall be sent by the department to the proper authorities. Said officials shall enforce said rules.
The commissioner shall, following a public hearing, cause any facility failing to comply with the rules and regulations promulgated under the authority of this section to close until said facility is found to be in compliance and receives written notification from the department to that effect.
Chapter 111: Section 210. Presence of operators; protective eyewear required; limitation of exposure and temperature Section 210. A tanning facility shall at all times during operating hours have an operator present who is sufficiently knowledgeable in the correct operation of the tanning devices used at the tanning facility to be able to inform and assist each customer in the proper use of such tanning devices and to provided sanitized protective eyewear and towels. No person shall use a tanning device without such protective eyewear.
A tanning facility shall (i) limit each customer to the maximum exposure established by the department, (ii) control the interior temperature so it does not exceed one hundred degrees Fahrenheit, and (iii) use a timer that has an accuracy of plus or minus ten percent of any selected time interval and check that selected time has not been extended for each customer.
Chapter 111: Section 211. Minors; parental consent; accompaniment by parent or guardian Section 211. No person fourteen years of age to seventeen years of age, inclusive, shall use a tanning device without the prior written consent of a parent or legal guardian who shall indicate therein that such parent or guardian has read and understood the warnings required under the provisions of section two hundred and nine.
No person under fourteen years of age shall use a tanning device unless accompanied by a parent or legal guardian.
Chapter 111: Section 212. Promotional material; liability not affected by warnings; report of injuries Section 212. No tanning facility shall claim or distribute promotional material that claims that use of a tanning device is safe and free from risk. The liability of a tanning facility operator or the manufacturer of a tanning device shall not be affected by the giving of the warnings required by section two hundred and nine.
A tanning facility shall send a written report of any injury or complaint of injury to the board of health with a copy to the complainant or injured person. The board shall retain said report for a period of at least one year from the date of receipt thereof and shall allow public inspection thereof.
Chapter 111: Section 213. Access to facilities for inspections; rules and regulations; phototherapy devices excluded Section 213. The board of health, local health agent, or department shall have access at all reasonable times to any tanning facility for the purposes of inspecting said facility.
The department may promulgate rules and regulations necessary for the implementation of sections two hundred and seven to two hundred and fourteen, inclusive, including, but not limited to, the maximum exposure limit for a person using a tanning device which limit shall not exceed the manufacturer’s recommended maximum exposure time.
The provisions of sections two hundred and seven to two hundred and fourteen, inclusive, shall not apply to a phototherapy device used by or under the supervision of a licensed physician who is trained in the use of such phototherapy device.
Chapter 111: Section 214. Violations; fines Section 214. Whoever violates any provision of sections two hundred and seven to two hundred and thirteen, inclusive, or any rule or regulation of the department promulgated thereunder shall be punished by a fine of not less than two hundred dollars nor more than two thousand dollars.
Chapter 111: Section 215. Pilot program for exchange of needles Section 215. The department of public health is hereby authorized to promulgate rules and regulations for the implementation of not more than ten pilot programs for the exchange of needles in cities and towns within the commonwealth upon nomination by the department. Local approval shall be obtained prior to implementation of each pilot program in any city or town.
Not later than one year after the implementation of each pilot program said department shall report the results of said program and any recommendations by filing the same with the joint legislative committees on health care and public safety.
Chapter 111: Section 216. Fragrance advertising inserts; microencapsulated fragrance; penalty Section 216. All fragrance advertising inserts contained in a newspaper, magazine, mailing, or other periodically printed material shall contain only microencapsulated oils. Glue tabs or binders shall be used to prevent premature activation of the fragrance advertising insert. Fragrance advertising insert shall mean a printed piece with encapsulated fragrance applied to it which is activated by opening a flap or removing an overlying ply of paper. Paperstocks employed in the manufacture of fragrance advertising inserts shall have a maximum porosity of twenty Sheffield units or one hundred and seventy-two Gurley Hill units.
Any person who distributes fragrance advertising inserts in violation of this section shall be guilty of an infraction and shall, if convicted, be subject to a fine of one hundred dollars for each such distribution. The fine shall apply to each mass mailing or distribution and to each mass publication of a magazine or newspaper in violation of this section. The fine shall not apply, however, to each individual letter, magazine, newspaper or fragrance advertising insert so distributed.
Chapter 111: Section 217. Office of patient protection; duties Section 217. (a) There is hereby established within the department an office of patient protection. The office shall:-(1) have the authority to administer and enforce the standards and procedures established by sections 13, 14, 15 and 16 of chapter 176O, and to promulgate regulations therefor. Such regulations shall protect the confidentiality of any information about a carrier or utilization review organization, as defined in said chapter 176O, which, in the opinion of the office, and in consultation with the division of insurance, is proprietary in nature. The regulations authorized by this section shall be consistent with, and not duplicate or overlap with, regulations promulgated by the bureau of managed care established in the division of insurance pursuant to said chapter 176O;(2) establish a site on the internet and through other communication media in order to make managed care information collected by the office readily accessible to consumers. Said internet site shall, at a minimum, include (i) the health plan report card developed pursuant to section 24 of chapter 118G, (ii) a chart, prepared by the office, comparing the information obtained on premium revenue expended for health care services as provided pursuant to subsection (3) of paragraph (b) of section 7 of chapter 176O, for the most recent year for which information is available, and (iii) data collected pursuant to paragraph (c);(3) assist consumers with questions or concerns relating to managed care, including but not limited to exercising the grievance and appeals rights established by sections 13 and 14, of said chapter 176O;(4) monitor quality-related health insurance plan information relating to managed care practices;(5) regulate the establishment and functions of review panels established by section 14 of chapter 176O;(6) periodically advise the commissioner, the managed care oversight board established by section 16D of chapter 6A, the joint committee on health care and the joint committee on insurance on actions, including legislation, which may improve the quality of managed care health insurance plans.
(b) The commissioner shall establish an external review system for the review of grievances submitted by or on behalf of insureds of carriers pursuant to section 14 of chapter 176O.
(c) Each entity that compiles the health plan employer data and information set, so-called, for the National Committee on Quality Assurance, or collects other information deemed by the entity as similar or equivalent thereto, shall, upon submitting said data and information set to the division of health care finance and policy pursuant to section 24 of chapter 118G, concurrently submit to the office of patient protection a copy thereof excluding, at the entity’s option, proprietary financial data.
Chapter 111: Section 218. Guidelines for human leukocyte or histocompatibility locus antigen testing Section 218. (a) The commissioner, in collaboration with the commissioner of insurance, shall establish guidelines, criteria, and rules or regulations, as may be necessary, to ensure that human leukocyte antigen testing or histocompatibility locus antigen testing conducted for the purposes of section 17H of chapter 32A, section 47V of chapter 175, section 8V of chapter 176A, section 4V of chapter 176B and section 4N of chapter 176G conform to medical eligibility requirements and other test protocols established by the United States food and drug administration, the American Association of Blood Banks, the joint commission on accreditation of health care organizations and the national marrow donor program registry. The eligibility of a health care facility to conduct such tests shall be established by such guidelines, criteria, rules or regulations, which shall further require such a facility to obtain informed consent from test subjects prior to conducting such tests, and at the time of obtaining such consent, to advise a test subject of the opportunity to participate in the national marrow donor program.
(b) The commissioner shall convene an advisory group of medical experts to assist in making recommendations relative to such guidelines, criteria, rules or regulations, which shall include, but need not be limited to, oncologists recommended by the society of clinical oncology, medical researchers with expertise in the field of bone marrow transplantation, specialists in the area of medical ethics, representatives of bone marrow donation programs, a physician selected by the Massachusetts League of Community Health Centers, a physician selected by a hospital and medical service corporation, and a physician selected by the Massachusetts Association of Health Maintenance Organizations.
Chapter 111: Section 219. Meningitis immunization awareness Section 219. The commissioner shall adopt regulations requiring a public or private secondary school, college, university, day care center or youth camp to distribute to the parent or guardian of a child in its care information regarding the risk of meningococcal disease and the availability, effectiveness and the risks of the meningitis vaccine.
Chapter 111: Section 22. Approval of plans for police station houses, houses of detention or lockups; enforcement Section 22. No station house, house of detention or lockup shall be built until the department has approved, in writing, the plans for the provisions for lighting, heating, ventilation and plumbing, the dimensions and form of construction and the location of the cells. The commissioner may cause any facility failing to comply with the provisions of this section to close until such time as the department has approved the plans of such facility and has inspected the facility in accordance with the provisions of section twenty.
Chapter 111: Section 23. Annual report of commissioner of environmental protection; recommendations Section 23. The commissioner of environmental protection shall make an annual report, including the results of the examination of main outlets of sewers and drainage of towns and the effect of sewage disposal, with such recommendations for the preservation of the interest of persons and property and for the prevention of offensive odors and objectionable conditions as he considers expedient, together with recommendations for the prevention of the pollution of waters used for ice or water supply and for the removal of polluting substances, in order to protect and develop the rights and property of the commonwealth therein and protect public health; and he may recommend any legislation or plans for systems of main sewers necessary for the preservation of the public health and for the purification and prevention of pollution of ponds, streams and inland waters of the commonwealth. The commissioner of environmental protection shall include in his annual report the number of prosecutions by the department of environmental protection and an itemized account of the money expended by it in enforcement actions.
Chapter 111: Section 24. Publication of parts of annual report; manual of laws Section 24. The department may publish for general distribution such parts of its annual report to the general court and such other matter as it may deem adapted to promote the interests of the public health in the commonwealth. The department shall publish every five years for distribution among boards of health and other health agencies a manual of the laws relating to boards of health in the commonwealth, containing such information upon the same subject as it may deem expedient. The cost of any publications referred to in this section shall be paid out of the appropriation for the general expenses of the department.
Chapter 111: Section 24A. Reduction of morbidity and mortality; establishment of program; information and reports Section 24A. The commissioner may authorize or cause to be made scientific studies and research which have for their purpose the reduction of morbidity and mortality within the commonwealth.
All information, records of interviews, written reports, statements, notes, memoranda, or other data procured in connection with such scientific studies and research conducted by the department, or by other persons, agencies or organizations so authorized by the commissioner shall be confidential and shall be used solely for the purposes of medical or scientific research.
The furnishing of such information to the department or to the authorized representative of such an authorized study or research project, shall not subject any person, hospital, sanitarium, rest home, nursing home or other person or agency furnishing such information, to any action for damages or other relief.
Such information, records, reports, statements, notes, memoranda, or other data shall not be admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency or person. Such information, records, reports, statements, notes, memoranda, or other data shall not be exhibited nor their contents disclosed in any way, in whole or in part, by any officer or representative of the department, nor by any other person, except as may be necessary for the purpose of furthering the study or research project to which they relate. No person participating in such an authorized study or research project shall disclose, in any manner, the information so obtained except in strict conformity with such research project. Any person who discloses such information in violation of this section shall be punished by a fine of fifty dollars.
Chapter 111: Section 24B. Birth information; statistical purposes Section 24B. Upon the birth of any child, the physician, certified nurse midwife, administrator or other person in charge of a hospital, or any other person responsible for reporting a birth pursuant to chapter 46 shall forward to the commissioner any information, including the residence address and social security number of each parent, as required by the commissioner for administrative, research and statistical purposes, including the purposes of the IV-D agency as set forth in chapter 119A. Access to such information by the IV-D agency shall include electronic access. Such data that is included in the certificate of birth shall be transmitted within ten days of the birth of the child and shall not constitute a public record and shall not be available except for the foregoing purposes. Disclosure of information for research purposes which may identify any person named in any vital record or report restricted by section 2A of chapter 46 or by this section may only be made in accordance with regulations promulgated pursuant to section 4 of chapter 17, which regulations shall require the submission of written requests for information by researchers and the execution of research agreements that protect the confidentiality of the information provided. Such agreements shall prohibit the release by the researcher of any information that might identify any person. For the purposes of this chapter, research means a systematic investigation designed primarily to develop or contribute to general knowledge, including public health, medical, social, demographic and historical research. Nothing in this section shall prohibit the release of information or data that would not identify any person named in a vital record or report.
Chapter 111: Section 24C. Repealed, 2003, 26, Sec. 299 Chapter 111: Section 24D. Repealed, 2003, 26, Sec. 300 Chapter 111: Section 24E. Comprehensive family planning services; program establishment Section 24E. For the purposes of this section, the term “comprehensive family planning services” shall mean those medical, educational, and social services that assist individuals of childbearing age, including sexually active minors, in determining the number and spacing of their children.
The department shall establish within its health promotion division a program for comprehensive family planning services for all persons without regard to religion, race, color, national origin, creed, handicap, sex, number of pregnancies, marital status, age, or contraceptive preference, who do not receive medical assistance under chapter one hundred and eighteen E.
Comprehensive family planning services provided pursuant to this section shall be no less in scope than such services provided by the department of public welfare pursuant to chapter one hundred and eighteen E. Services shall be provided in a manner which protects the dignity of the recipient. Service providers shall assure confidentiality and shall protect the privacy of recipients in a manner consistent with the provisions of 5 USC 552a. No information obtained regarding a recipient shall be disclosed without the consent of said recipient, except as required by law or as necessary to provide such services. Information may be disclosed in summary, statistical, or other form which does not identify individual recipients. Recipients shall accept such services on a voluntary basis. Income standards for eligibility shall be established by the department; provided, however, that such standards shall not be less than two hundred percent of the non-farm income poverty guidelines prescribed by the United States department of health and human services. A sworn affidavit as to income by an applicant shall be sufficient to establish eligibility. This section shall be the responsibility of the division of health promotion. Services provided hereunder shall be provided by agencies operating under the provisions of 42 USC 300, 300a or comprehensive family planning agencies as defined by the department of public welfare.
Chapter 111: Section 24F. Repealed, 1997, 170, Sec. 4 Chapter 111: Section 24G. Repealed, 2003, 26, Sec. 301 Chapter 111: Section 24H. Managed care program within community health centers Section 24H. The department shall, subject to appropriation, establish a program of managed care within community health centers pursuant to regulations promulgated by the department; provided, however, that the department may transfer funds to the division of medical assistance to provide medical benefits pursuant to section 9A of chapter 118E equal to the cost of providing such benefits to persons eligible for said programs. Any revenues generated by said program shall be credited to the General Fund.
Chapter 111: Section 24I. Universal immunization program Section 24I. There is hereby established a universal immunization program. Said program shall be administered by the department, subject to appropriation. Any revenues generated by said program shall be credited to the General Fund.
Chapter 111: Section 24J. Medical respite services program Section 24J. There is hereby established a program of medical respite services provided by the Boston health care for the homeless program. Said program shall be administered by the department, subject to appropriation. Any revenues generated by said program shall be credited to the General Fund.
Chapter 111: Section 25. Publication of certificate of examination or results of analyses Section 25. The department shall publish in each issue of its official departmental publication, and also, if in its opinion the public health can be served thereby, may publish in one or more newspapers in the commonwealth, a certificate of the examination or analysis made under its authority during the preceding months of any article of food manufactured or offered for sale in the commonwealth which is adulterated within the meaning of chapter ninety-four; and it shall also publish, with such certificate of examination, a statement of the trade mark, brand mark or name, with the name and place of business of the manufacturer, appearing upon the package or box containing such adulterated article, or with the name and place of business of the wholesale dealer of whom the goods were obtained.
Chapter 111: Section 25A. Inventory of health care resources and related information; status as public record; reporting regulations; publication; inter-agency cooperation; contracts authorized Section 25A. The department, in order to identify the location, distribution and nature of all health care resources in the commonwealth shall establish and maintain on a current basis an inventory of all such resources together with all other reasonably pertinent information concerning such resources. For purposes of this section, a health care resource shall include any resource, whether personal or institutional in nature and whether owned or operated by any person, the commonwealth or political subdivision thereof, the principal purpose of which is to provide, or facilitate the provision of, services for the prevention, detection, diagnosis or treatment of those physical and mental conditions experienced by humans which usually are the result of, or result in, disease, injury, deformity, or pain; and provided that the term “treatment” shall include custodial and rehabilitative care incident to infirmity, developmental disability or old age.
Such inventory and all related information shall be maintained in a form usable by the general public in a designated office of the department, shall constitute a public record, and shall be coordinated with information collected by the department under other provisions of law, federal census information, and other vital statistics from reliable sources; provided, however, that any item of information which is confidential or privileged in nature shall not be regarded as a public record under this section.
The department may require health care resources to provide information for the purposes of this section and may prescribe by regulation uniform reporting requirements. In prescribing such regulations the department shall strive to make any reports required under this section of mutual benefit to those providing as well as those using such information, and shall avoid placing any burdens on such providers which are not reasonably necessary to accomplish the purposes of this section.
The department shall publish analyses, reports and interpretations of information collected under this section in order to further public knowledge concerning the distribution and nature of health care resources in the commonwealth.
Agencies of the commonwealth which collect cost or other data concerning health care resources shall cooperate with the department in coordinating such data with information collected under this section.
In the performance of its duties, the department, subject to appropriation, may enter into such contracts with agencies of the federal government, the commonwealth or its political subdivisions, and public or private bodies, as it deems necessary; provided, however, that no information received under such a contract shall be published or relied upon for any purpose by the department unless the department has determined such information to be reasonably accurate by statistical sampling or other suitable techniques for measuring the reliability of information-gathering processes.
The department of public health may establish an Amyotrophic Lateral Sclerosis registry, by areas and regions of the commonwealth, with specific data to be obtained from urban, low and median income communities, and minority communities of the commonwealth.
Chapter 111: Section 25B1/2. Expenditure minimums; annual adjustments Section 25B1/2. Expenditure minimums established pursuant to section twenty-five B shall be adjusted annually by the department after consideration of any inflation index set by the Secretary of the United States Department of Health and Human Services.
Chapter 111: Section 25B. Definitions Section 25B. In this section and sections twenty-five C to twenty-five G, inclusive, the following words shall have the following meanings:“Appropriate regional comprehensive health planning agency,” the regional agency designated pursuant to the provisions of section three hundred and fourteen (b) the Federal Public Health Service Act, or its successor agency.
“Construction”, construction of a new health care facility; the alteration of, expansion of, making of major repairs to, remodeling of, renovation of or replacement of an existing health care facility; the initial, additional or replacement equipping of any such facility; the acquisition of consulting, architectural, and engineering services, and of site, when such acquisition is directed toward an undertaking sufficiently specific to constitute part of the subject matter of an application for determination of need under section twenty-five C.
“Department”, the department of public health; provided, however, that no member of the public health council who is an owner, in whole or in part, an officer or an employee of a health care facility, or who bears any other fiduciary relationship to such a facility, shall participate in any decision which would substantially affect the facility to which he is related.
“Health care facility”, a hospital, institution for the care of unwed mothers or clinic, as defined in section fifty-two; a long-term care facility, which is an infirmary maintained in a town, a convalescent or nursing home, a rest home or a charitable home for the aged, as defined in section seventy-one; a clinical laboratory subject to licensing under chapter one hundred and eleven D, a public medical institution, which is any medical institution, and, after December first, nineteen hundred and seventy-two, any institution for the mentally ill or retarded, supported in whole or in part by public funds, staffed by professional, medical and nursing personnel and providing medical care, in accordance with standards established through licensing, approval or certification for participation in the programs administered under Titles 18 and 19 of the Federal Social Security Act, by the department; and any part of such facilities; provided, however, that “health care facility” shall not include a facility operated by and for persons who rely exclusively upon treatment by spiritual means through prayer for healing, in accordance with the creed or tenets of a church or religious denomination and in which health care by or under the supervision of doctors of medicine, osteopathy, or dentistry is not provided.
“Health maintenance organization” or “HMO”, a public or private organization as defined in section one of chapter one hundred and seventy-six G.
“State comprehensive health planning agency”, the agency designated pursuant to the provisions of section three hundred fourteen (a) of the Federal Public Health Service Act.
“Acute-care hospital”, any hospital licensed under section fifty-one of chapter one hundred and eleven, and the teaching hospital of the University of Massachusetts Medical School, which contains a majority of medical-surgical, pediatric, obstetric, and maternity beds, as defined by the department.
“Acute psychiatric service”, a service for inpatients in need of intensive, twenty-four hour per day, psychiatric and nursing care and supervision, not including persons hospitalized for alcohol problems, and which includes a staff of mental health specialists who provide psychiatric, psychological and social evaluation, treatment and aftercare planning.
“Ambulatory surgery”, health care services restricted to those defined by the department as surgical services, not requiring overnight stay, typically provided to ambulatory patients on an elective, urgent, or emergency basis.
“Innovative service”, a service or procedure such as dialysis, transplant services, cardiac catheterization, angioplasty and neonatal intensive care, which for reasons of quality, access, or cost is determined to be innovative by the department.
“Inpatient services”, health care services requiring at least one overnight stay, provided to patients on an elective, urgent, or emergency basis.
“Major movable equipment”, equipment that is not permanently attached to the building and that has a depreciable life of three or more years.
“New technology”, equipment including but not limited to magnetic resonance imagers, lithotrypters, and linear accelerators, as defined by the department, or a service, as defined by the department, primarily intended for use in the provision of medical or surgical services, whether for diagnostic or treatment purposes, which has received approval from the U.
S. Food and Drug Administration or which has been placed in “Approvable Status” by the U.
S. Food and Drug Administration, or which has been authorized for physician use by appropriate professional societies, but which is not in general use for patient care by physicians qualified to operate the equipment or provide the service.
“Outpatient services”, health care services, not requiring overnight stay, typically provided to ambulatory patients on an elective basis.
“Substantial capital expenditures”, (1) the expenditure, or obligation of a sum of money for construction of a health care facility (a) which under generally accepted accounting principles is not properly chargeable as an expense of operation and maintenance, or is made by lease or comparable arrangement, and (b) which exceeds, or may reasonably be regarded as leading to an expenditure for construction in excess of, the expenditure minimum determined pursuant to this section for an undertaking sufficiently specific to constitute the subject matter of an application for a determination of need under section twenty-five C; or (2) the obtaining by lease or comparable arrangement, by donation, or by transfer for less than fair market value in excess of the expenditure minimum.
“Expenditure minimum with respect to substantial capital expenditures”, shall mean, with respect to expenditures and acquisitions made by or for (1) acute-care hospitals and comprehensive cancer centers as defined in section thirty-one of chapter six A, only, seven and one-half million dollars, except that expenditures for or the acquisition of, major movable equipment not otherwise defined by the department as new technology or innovative services shall not require a determination of need, and shall not be included in the calculation of the expenditure minimum; and (2) health care facilities, other than acute-care hospitals, and facilities subject to licensing under chapter one hundred and eleven B, with respect to (a) expenditures for, or the acquisition of, medical, diagnostic or therapeutic equipment, four hundred thousand dollars, and (b) all other expenditures and acquisitions, eight hundred thousand dollars; provided, however, that expenditures for, or the acquisition of, any replacement of medical, diagnostic or therapeutic equipment defined as new technology or innovative services for which a determination of need has issued or which was exempt from determination of need, shall not require a determination of need and shall not be included in the calculation of the expenditure minimum; provided, further, that expenditures and acquisitions concerned solely with outpatient services other than ambulatory surgery, not otherwise defined as new technology or innovative services by the department, shall not require a determination of need and shall not be included in the calculation of the expenditure minimum. Notwithstanding the above limitations, acute-care hospitals only may elect at their option to apply for determination of need for expenditures and acquisitions less than the expenditure minimum.
“Substantial change in services”, shall mean: (1)(a) with regard to acute-care hospitals only, the addition or expansion of, or conversion to, A new technology or innovate service regardless of whether an expenditure minimum is exceeded; (b) for any acute-care hospital, the addition or expansion of, or conversion to any services which may be provided by facilities which are not acute-care hospitals; except that conversions of acute-care services to skilled nursing, rehabilitation, acute psychiatric, and substance abuse services located in an underbedded areas shall be determined by criteria developed by the department in consultation with the department of elder affairs, department of mental health, the Massachusetts federation of nursing homes, the Massachusetts hospital association and other interested parties, and that no such conversion shall occur until the department has certified in writing the conversions meet the criteria established. The department shall promulgate regulations to implement the provisions of said criteria for underbedded areas including, but not limited to medicaid access, and regulations to define criteria for reconversion; and (2) for any health care facility other than an acute-care hospital (a) the addition of a service which entails annual operating costs in excess of the expenditure minimum determined pursuant to this section; (b) any increase in bed capacity of more than twelve beds; (c) the addition or expansion of, or conversion to, A new technology or innovative service regardless of whether an expenditure minimum is exceeded; (d) provided, however, that no decrease in the level of a service that, pursuant to department regulations, may be offered by a nursing, convalescent, or rest home which does not involve a capital expenditure in excess of eight hundred thousand dollars shall be subject to the provisions of sections twenty-five C to twenty-five G, inclusive; (e) provided, further, that an increase in staff by itself shall not be defined by the department to constitute a substantial change in service unless said increase in staff will result in an addition to annual operating costs which exceeds the expenditure minimum determined pursuant to this section. Notwithstanding any other provisions to the contrary, a change of service concerned solely with outpatient services other than ambulatory surgery, not otherwise defined as a new technology or innovative services, shall not be defined by the department to constitute a substantial change of service.
“Expenditure minimum with respect to expenditures for a change in service or increase in staff”, shall mean three hundred and fifty thousand dollars in annual operating costs.
Chapter 111: Section 25C1/2. Exemption from determination of need of projects related to inpatient services Section 25C1/2. (a) Notwithstanding the provisions of section twenty-five C, no determination of need shall be required for any substantial capital expenditure for construction related to the provision of inpatient services or for any substantial change in inpatient services if, upon application pursuant to subsection (b), the department finds that such substantial capital expenditure or such substantial change in services will be made by or on behalf of one of the following:—(1) An HMO or combination of HMOs if (A) the HMO or combination of HMOs has in the service area of the HMO or the service areas of the HMOs in combination an enrollment of at least fifty thousand individuals, (B) the facility in which the services will be provided is or will be geographically located so that the services will be reasonably accessible to such enrolled individuals; and (C) at least seventy-five per cent of the patients who can reasonably be expected to receive such inpatient services will be individuals enrolled with such HMO or HMOs in the combination;(2) A health facility if (A) the facility primarily provides or will provide inpatient services, (B) the facility is or will be controlled, directly or indirectly, by an HMO or a combination of HMOs which has in the service area of the HMO or service areas of the HMOs in the combination an enrollment of at least fifty thousand individuals, (C) the facility is or will be geographically located so that the services will be reasonably accessible to such enrolled individuals, and (D) at least seventy-five per cent of the patients who can reasonably be expected to receive such inpatient services will be individuals enrolled with such HMO or HMOs in the combination; or(3) A health care facility or portion thereof if (A) the facility is or will be leased by an HMO or combination of HMOs which has in the service area of the HMO or the service areas of the HMOs in the combination an enrollment of at least fifty thousand individuals and on the date the application is submitted under subsection (b) at least fifteen years remain in the term of the lease, (B) the facility is or will be geographically located so that the services will be reasonably accessible to such enrolled individuals, and (C) at least seventy-five percent of the patients who can reasonably be expected to receive such inpatient services will be individuals enrolled with such HMO or HMOs in the combination.
(4) A health care facility if (a) the facility is or is going to be a long-term care facility, an infirmary maintained in a town, a convalescent or nursing home, a rest or charitable home for the aged as defined in section seventy-one, (b) the facility is, or will be located in an underbedded urban area as determined by criteria developed by the department in consultation with the Massachusetts federation of nursing homes and other interested parties, including the department of elder affairs, (c) the facility provides service, or will agree to provide service, to at least seventy per cent of its patients as enrollees in Title XIV of the Federal Social Security Act, (d) the facility presents an adequate quality assurance program plan meeting criteria established by the department subsequent to consultation with the Massachusetts federation of nursing homes and other interested parties, and (e) need for such facility has been established pursuant to an administrative review procedure shall be established by the department within ninety days of the effective date of this act.
(b) Any HMO or health care facility seeking an exemption under subsection (a) shall submit to the department an application for such exemption in such form and manner as the department shall prescribe. The application shall contain such information as the department may require to determine if the requirements of subsection (a) are met and may be subject to such public review and comment as the department deems appropriate. In the case of a proposed health care facility or portion thereof which has not begun to provide services on the date an application is submitted under this paragraph with respect to such facility or portion, the facility or portion shall meet the applicable requirements of subsection (a) when the facility first provides such services. The department shall approve an application submitted under this subsection if it determines that the applicable requirements of subsection (a) are met. Any exemption granted under subsection (a) shall be a valid authorization for use only by the applicant of the health care facility or portion or medical equipment with respect to which the exemption is granted.
(c) In the case of a health care facility which is controlled directly or indirectly by an HMO or combination of HMOs, no determination of need under section twenty-five C shall be required for a substantial capital expenditure solely related to the provision of outpatient services or for a substantial change in outpatient services; provided, however, that no such facility shall acquire a unit of medical, diagnostic, or therapeutic equipment with a fair market value in excess of one hundred and fifty thousand dollars which is intended to serve outpatients unless such facility notifies the department of the facility’s intent to acquire such equipment and of the use that will be made of the equipment. Such notice shall be made in writing and shall be received by the department at least thirty days before contractual arrangements are entered into to acquire the equipment with respect to which notice is given. A determination by the department of need therefor shall be required for any such acquisition (i) if the notice required by this subsection is not filed in accordance with the requirements of this subsection, and (ii) if the requirements for exemption under subsection (a) are not met.
Chapter 111: Section 25C. Determination of need Section 25C. Notwithstanding any contrary provisions of law, except as provided in section twenty-five C1/2, no person or agency of the commonwealth or any political subdivision thereof shall make substantial capital expenditures for construction of a health care facility or substantially change the service of such facility unless there is a determination by the department that there is need therefor. No such determination of need shall be required for any substantial capital expenditure for construction or any substantial change in service which shall be related solely to the conduct of research in the basic biomedical or applied medical research areas, and shall at no time result in any increase in the clinical bed capacity or outpatient load capacity of a health care facility, and shall at no time be included within or cause an increase in the gross patient service revenue of a facility for health care services, supplies, and accommodations, as such revenue shall be defined from time to time in accordance with section thirty-one of chapter six A. Any person undertaking any such expenditure related solely to such research which shall exceed or may reasonably be regarded as likely to exceed one hundred and fifty thousand dollars or any such change in service solely related to such research, shall give written notice thereof to the department and the division of health care finance and policy at least sixty days before undertaking such expenditure or change in service. Said notice shall state that such expenditure or change shall be related solely to the conduct of research in the basic biomedical or applied medical research areas, and shall at no time be included within or result in any increase in the clinical bed capacity or outpatient load capacity of a facility, and shall at no time cause an increase in the gross patient service revenue, as defined in accordance with said section thirty-one of said chapter six A, of a facility for health care services, supplies and accommodations. Notwithstanding the preceding three sentences, a determination of need shall be required for any such expenditure or change if the notice required by this section is not filed in accordance with the requirements of this section, or if the department finds, within sixty days after receipt of said notice, that such expenditure or change will not be related solely to research in the basic biomedical or applied medical research areas, or will result in an increase in the clinical bed capacity or outpatient load capacity of a facility, or will be included within or cause an increase in the gross patient service revenues of a facility. A research exemption granted under the provisions of this section shall not be deemed to be as evidence of need in any determination of need proceeding.
No person or agency of the commonwealth or any political subdivision thereof shall provide an innovative service or use a new technology, as such terms are defined in section twenty-five B, in any location other than in a health care facility, as such term is defined in section twenty-five B, unless the person or agency first is issued a determination of need therefor by the department.
No person or agency of the commonwealth or any political subdivision thereof shall acquire for location in other than a health care facility a unit of medical, diagnostic, or therapeutic equipment, other than equipment used to provide an innovative service or which is a new technology, as such terms are defined in section twenty-five B, with a fair market value in excess of one hundred and fifty thousand dollars unless the person or agency notifies the department of the person’s or agency’s intent to acquire such equipment and of the use that will be made of the equipment. Such notice shall be made in writing and shall be received by the department at least thirty days before contractual arrangements are entered into to acquire the equipment with respect to which notice is given. A determination by the department of need therefor shall be required for any such acquisition (i) if the notice required by this paragraph is not filed in accordance with the requirements of this paragraph, and (ii) if the requirements for exemption under subsection (a) of section twenty-five C1/2; provided, however, that in no event shall any person who acquires a unit of magnetic resonance imaging equipment for location other than in a health care facility refer or influence any referrals of patients to said equipment, unless said person is a physician directly providing services with that equipment; provided, however, that for the purposes of this section, no public advertisement shall be deemed a referral or an influence of referrals; and provided, further, that any person who has an ownership interest in said equipment, whether direct or indirect, shall disclose said interest to patients utilizing said equipment in a conspicuous manner.
Each person or agency operating a unit of equipment described in this section shall submit annually to the department information and data in connection with utilization and volume rates of said equipment on a form or forms prescribed by the department are not met.
Except as provided in section twenty-five C1/2, no person or agency of the commonwealth or any political subdivision thereof shall acquire an existing health care facility unless the person or agency notifies the department of the person’s or agency’s intent to acquire such facility and of the services to be offered in the facility and its bed capacity. Such notice shall be made in writing and shall be received by the department at least thirty days before contractual arrangements are entered into to acquire the facility with respect to which the notice is given. A determination of need therefor shall be required for any such acquisition if the notice required by this paragraph is not filed in accordance with the requirements of this paragraph or if the department finds, within thirty days after receipt of notice in accordance with this paragraph, that the services or bed capacity of the facility will be changed in being acquired.
The department, in making any such determination, shall encourage appropriate allocation of private and public health care resources and the development of alternative or substitute methods of delivering health care services so that adequate health care services will be made reasonably available to every person within the commonwealth at the lowest reasonable aggregate cost and shall take into account the special needs and circumstances of HMOs. The department shall also recognize the special needs and circumstances of projects that (1) are essential to the conduct of research in basic biomedical or health care delivery areas or to the training of health care personnel, (2) are unlikely to result in any increase in the clinical bed capacity or outpatient load capacity of the facility, and (3) are unlikely to cause an increase in the total patient care charges of the facility to the public for health care services, supplies, and accommodations, as such charges shall be defined from time to time in accordance with section five of chapter four hundred and nine of the acts of nineteen hundred and seventy-six.
Applications for such determination shall be filed with the department, together with such other forms and information as shall be prescribed by, or acceptable to, the department. A duplicate copy of any application together with supporting documentation therefor, shall be a public record and kept on file in the department. The department may require a public hearing on any application. A reasonable fee, established by the department, shall be paid upon the filing of such application; provided, that in no event shall such fee exceed one-tenth of one per cent of the capital expenditures, if any, proposed by the applicant.
Except in the case of an emergency situation determined by the department as requiring immediate action to prevent further damage to the public health or to a health care facility, the department shall not act upon an application for such determination unless (a) the application has been on file with the department for at least thirty days, (b) the division of health care finance and policy, the state, and appropriate regional comprehensive health planning agencies and, in the case of long-term care facilities only, the department of elder affairs, have been provided copies of such application and supporting documents and given reasonable opportunity to comment thereon, and (c) a public hearing has been held thereon when requested by the applicant, the state or appropriate regional comprehensive health planning agency, or any ten taxpayers of the commonwealth. If, in any filing period, an individual application is filed which would implicitly decide any other application filed during such period, the department shall not act only upon an individual.
The department shall so approve or disapprove in whole or in part each such application for a determination of need within eight months after filing with the department; provided that the department may, on one occasion only, delay such action for up to two months after the applicant has provided information which the department reasonably has requested during such eight month period. Applications remanded to the department by the health facilities appeals board pursuant to the provisions of section twenty-five E shall be acted upon by the department within the same time limits provided in this section for the department to approve or disapprove applications for a determination of need. If an application has not been acted upon by the department within such time limits, the applicant may, within a reasonable period of time, bring an action in the nature of mandamus in the superior court to require the department to act upon the application.
Such determinations of need shall be based on the written record compiled by the department during its review of the application and on such criteria consistent with sections twenty-five B to twenty-five G, inclusive, as were in effect on the date of filing of the application. In compiling such record the department shall confine its requests for information from the applicant to matters which shall be within the normal capacity of the applicant to provide. In each case the action by the department on the application shall be in writing and shall set forth the reasons therefor; and every such action and the reasons therefor shall constitute a public record and be filed in the department.
The department shall stipulate the period during which a determination of need shall remain in effect, which in no event shall originally be longer than three years but which may be extended by the department for cause shown. Any such determination shall continue to be effective only upon the applicant (a) making reasonable progress toward completing the construction or substantial change in services for which need was determined to exist, (b) complying with all other provisions of law relating to the construction, licensure, and operation of health care facilities, and (c) complying with such further terms and conditions as the department reasonably shall require.
The department shall notify the secretary of elder affairs forthwith of the pendency of any proceeding, of any public hearing and of any action to be taken under this section on any application submitted by or on behalf of any long-term care facility.
No long term care facility located in an underbedded urban area shall be replaced or the license for said facility transferred outside an underbedded urban area. For the purposes of this paragraph, an underbedded urban area shall mean a city or town in which: (a) the per capita income is below the state average; or (b) the percentage of the population below one hundred percent of the federal poverty level is above the state average; or (c) the percentage of the population below two hundred percent of the federal poverty level is above the state average.
Chapter 111: Section 25D. Financing; notice of intent; necessity of application for determination of need; acceptance of gifts; governmental bodies as applicant; report Section 25D. Every person, at least thirty days prior to making a public solicitation of funds or otherwise securing financing for construction of a health care facility or a substantial change in the services of a facility, shall file written notice of his intent to do so with the department. In the case of a solicitation of funds from the general public, the department may require such person to file an application for a determination of need for such construction or substantial change in services and to postpone any such public solicitation of funds until such application has been acted upon by the department and such need has been found to exist; provided, however, that failure of the department to comment upon a notice of intent shall not be construed to constitute a determination that such need exists. Nothing in this section shall be construed to prohibit any person or agency subject to sections twenty-five C to twenty-five G, inclusive, from accepting gifts, and the provisions of this section shall not apply to any such solicitation or securing of financing where the undertaking to be funded is not sufficiently specific to constitute the subject matter of an application for determination of need under section twenty-five C.
Each agency of the commonwealth and its political subdivisions desiring to make substantial capital expenditure for construction of a health care facility or to substantially change the services of such a facility shall make application for determination of need therefor pursuant to section twenty-five C, and the department shall transmit a report of its determination thereon to the agencies empowered to recommend and to make appropriations of money for the applicant agency.
Chapter 111: Section 25E. Administrative appeal; hearing; decision; judicial review Section 25E. Any person or agency filing an application for determination of need or empowered to request a public hearing under the provisions of section twenty-five C, and aggrieved by the determination thereof may, within fourteen days after such determination, file an appeal to the health facilities appeals board established by section one hundred and sixty-six of chapter six. The appellant shall include with any such appeal a certificate stating that said appeal is not knowingly interposed for delay.
The board in considering any such appeal shall restrict itself to a review of materials on file with the department and to consideration of whether the determination appealed from was an abuse of discretion, without observance of procedure required by law or in violation of applicable provisions of law. In the event the board determines that the materials available to it are inadequate to allow the required consideration, it may order a hearing on the appeal. Such appeal shall be heard by the board or its designated hearing officer within thirty days after its filing. If the matter is heard by a hearing officer, such officer, within thirty days after hearing, shall submit a recommended decision, reasons therefor and a determination of each issue of fact or law incident to said recommended decision to the board. The board shall, within sixty days after filing of the appeal, issue a final decision, either denying the appeal, in which case said decision shall be subject to judicial review under the provisions of section fourteen of chapter thirty A to the extent they are not inconsistent with the provisions of this section, or order the matter remanded to the department for action consistent with the opinion of the board. All proceedings of the board shall be subject to the provisions of chapter thirty A to the extent they are not inconsistent with the provisions of this section. Failure of the board to issue a final decision within one hundred and twenty days after filing of the appeal shall constitute a final decision affirming the action of the department and denying the appeal.
Chapter 111: Section 25F. Rules and regulations; effective date Section 25F. The department and the health facilities appeals board are hereby authorized and directed to promulgate rules and regulations necessary for the implementation of sections twenty-five C to twenty-five G, inclusive; provided, however, that no new promulgated rule or regulation shall take effect before the thirtieth day next following the date which a copy of the rule or regulation shall have been filed with the joint committee on health care of the general court.
Chapter 111: Section 25G. Enforcement Section 25G. The superior and supreme judicial courts shall have jurisdiction, upon request of the department, the appropriate regional comprehensive health planning agency, or of any ten taxpayers in the commonwealth to enforce the provisions of sections twenty-five C to twenty-five G, inclusive. A violation of such provisions shall subject the violator to liability for a civil penalty of not more than five hundred dollars for each day of such violation, assessable by the superior court. Any violation of such provisions also shall constitute grounds for refusing to grant or renew, modifying or revoking the license of a health care facility or of any part thereof.
Chapter 111: Section 25H. Severability; voidability of provisions in violation of federal law Section 25H. The provisions of sections twenty-five B to twenty-five G, inclusive, are severable and if any provision shall be in violation of any federal rule or regulation established by the Department of Health, Education and Welfare as a condition for receiving federal funds in connection with any program administered by said department, such provision shall be null and void and such violation shall not affect or impair any of the remaining provisions.
Chapter 111: Section 25I. Unused medication; return by health care facilities Section 25I. The commissioner by rules and regulations may provide that either a resident or consultant pharmacist in a health care facility may return to the pharmacy from which it was purchased any unused medication provided that such medication is sealed in unopened, individually packaged units and within the recommended period of shelf life, and provided that such medication is not a schedule I or II controlled substance as defined in chapter ninety-four C. Such rules and regulations shall permit the pharmacy to which such medication is returned to restock and redistribute such medication, and shall be required to reimburse or credit the purchaser for any such returned medication.
Chapter 111: Section 25J. Competent interpreter services in acute-care hospitals Section 25J. (a) For purposes of this section, the following words shall have the following meanings:—“Non-English speaker”, a person who cannot speak or understand, or has difficulty with speaking or understanding, the English language because the speaker primarily or only uses a spoken language other than English.
“Competent interpreter services”, interpreter services performed by a person who is fluent in English and in the language of a non-English speaker, who is trained and proficient in the skill and ethics of interpreting and who is knowledgeable about the specialized terms and concepts that need to be interpreted for purposes of receiving emergency care or treatment.
(b) Every acute-care hospital, as defined in section 25B, shall provide competent interpreter services in connection with all emergency room services provided to every non-English speaker who is a patient or who seeks appropriate emergency care or treatment. Based on the volume and diversity of the non-English-speaking patients or persons seeking appropriate emergency care or treatment, each such hospital shall use reasonable judgment as to whether to employ, or to contract for the on-call use of one or more interpreters for particular languages when needed, or to use competent telephonic or televiewing interpreter services. However, such hospital shall only use competent telephonic or televiewing interpreter services in situations where there is either (1) no reasonable way to anticipate the need for employed or contracted interpreters for a particular language; or (2) there occurs, in a particular instance, an inability to provide competent interpreter services by an employed or contracted interpreter.
(c) The receipt by any non-English speaker of interpreter services shall not be deemed the receipt of a “public benefit” under any provision of law restricting benefits or assistance on the basis of immigrant status.
(d) Substantial compliance with the provisions of this section shall be a requirement of licensing or relicensing by the department under section 51, and the department may promulgate regulations under said section 51 for the implementation of this section.
(e) Any non-English speaker, who is denied appropriate emergency health care services by an acute-care hospital by reason of such hospital’s not having exercised reasonable judgment in making competent interpreter services available, as required by this section, or the attorney general upon receiving written notice from a regulating state agency that such hospital is substantially failing to comply with applicable interpreter requirements, shall have a right of action in the superior court against such hospital for declaratory or injunctive relief. A non-English speaker bringing such action shall not be required to exhaust any administrative remedies that may be available to him and may be awarded damages for any actual harm suffered, but at least $250 in damages shall be awarded for each violation, together with such costs, including expert fees and attorney’s fees, as may be reasonably incurred in such action. Such action shall be brought within three years of any such failure to provide competent interpreter services.
Chapter 111: Section 26. Boards of health in cities; membership; appointment; removal; compensation Section 26. In each city, except as hereinafter provided, the board of health shall consist of three persons, one of whom shall be a physician. No one of them shall be a member of the city council. One member shall be appointed in January of each year for three years from the first Monday of the following February. Unless otherwise provided in the city charter, the members shall be appointed by the mayor, subject to confirmation by the board of aldermen, and may be removed by the mayor for cause, and vacancies shall be filled by appointment for the residue of the unexpired term. Members of the board shall receive such compensation as the city council may determine. Boards of health in towns shall be chosen as provided in chapter forty-one. This section shall not apply to any city in which a different type of organization is authorized by special legislative act or by the acceptance of sections twenty-six A to twenty-six E, inclusive.
Chapter 111: Section 26A. Health departments in cities; commissioners Section 26A. A city, by accepting the provisions of this section and sections twenty-six B to twenty-six E, inclusive, by vote of the city council and approval of the mayor, and a town, by accepting the provisions of said sections by vote of the town, may create a health department to replace the board of health therein. Such health department shall consist of a commissioner of health who shall perform and exercise the duties and powers of a board of health, with the advice of an advisory council of health.
Chapter 111: Section 26B. Commissioner of health in cities; appointment; removal; qualifications Section 26B. In a city the mayor, with the approval of the city council, unless otherwise provided in the city charter, and in a town the board of selectmen, if authorized by a vote of the town, shall appoint, and may remove for cause, a commissioner of health who shall be a citizen of the United States who has been graduated from a medical school approved by the state authority for the approval of medical schools, and either shall be the holder of a degree of public health with at least two years’ full-time experience in a responsible position in public health service, or shall have had four years’ full-time experience in a responsible position in such service. He shall be eligible to be registered to practice medicine under the laws of the commonwealth. Said commissioner shall devote his entire time to the performance of his duties and the supervision of the employees of the department. He shall be appointed in January for a period of five years beginning the first Monday of the following February, and until the qualification of his successor. Any vacancy in office shall be filled for the balance of the unexpired term in the same manner as the original appointment. His salary shall be such as the city council or selectmen may determine.
Chapter 111: Section 26C. Advisory council of health in cities; members; qualifications; appointment; terms; removal; compensation; meetings; function Section 26C. The advisory council of health shall consist of nine persons, two of whom shall be registered physicians and five of whom shall be nonprofessionals. For the purposes of this section “nonprofessionals” shall mean a person whose background and experience indicate that he is qualified to act in the broad public interest. Such person, his spouse, parents, siblings or children shall not be employed by a health care facility, by a nonprofit service corporation established in accordance with chapters one hundred seventy-six A to one hundred seventy-six E, inclusive, nor by a corporation authorized to insure the health of individuals. Such person or his spouse shall not be licensed to practice medicine. No member of said council shall be a member of the city council. The members of said council first appointed hereunder shall be appointed as follows:—three members to serve for one year, three members to serve for two years, and three members to serve for three years, from the first Monday of the following February, and until the qualification of their respective successors, and thereafter three members shall be appointed in January of each year for three years from the first Monday of the following February, and until the qualification of their respective successors. In a city, unless a different mode of appointment or election is provided in the city charter, the members shall be appointed by the mayor, subject to confirmation by the city council, and in a town the members shall be appointed by the board of selectmen. Members may be removed in the same manner, for cause, and vacancies shall be filled in the same manner, by appointment for the remainder of the unexpired term. Members of the advisory council of health shall be compensated at ten dollars a day while on duty plus expenses incurred in line of duty. Said council shall meet quarterly and additional meetings may be held at any time at the call of the commissioner of health who shall act as chairman of said council. The advisory council of health shall advise and assist the commissioner of health.
Chapter 111: Section 26D. Abolition of boards of health in cities and towns upon qualification of commissioner Section 26D. Upon the qualification of the commissioner of health first appointed under section twenty-six B, the terms of the then existing members of the board of health of the city or town shall terminate and said offices shall thereupon be abolished.
Chapter 111: Section 26E. Rules and regulations for departments of health; assistants and clerks Section 26E. Every such commissioner of health shall make rules and regulations for the department of health, its officers, agents and assistants. He may appoint such necessary assistants and clerks as may be required to execute the health laws and regulations of the department. They shall devote their entire time to the performance of their duties unless specifically employed on a part-time basis.
Chapter 111: Section 26F. List of hazardous chemicals in water supply; effects Section 26F. In any city or town which accepts the provisions of this section, the board of health of such city or town shall annually publish a list, a copy of which shall be posted in the town or city hall and at the offices of the water department of hazardous chemicals which are present in the municipal water supply in concentrations greater than fifty per cent of the suggested action guidelines, the suggested no adverse response levels or the maximum contaminant levels established by the United States Environmental Protection Agency. Such list shall also include a brief and clear description of the effects of said chemicals upon the human body.
Chapter 111: Section 26G. Septic system installers; inspections Section 26G. In any city, town or district which accepts the provisions of this section notwithstanding the provisions of section seventeen of chapter two hundred and sixty-eight A, a septic system installer who is appointed or elected to the board of health may engage or work at the business of septic system installation within the area over which the board of health has jurisdiction while serving as a board member; provided, however, that neither the board of health member nor the board shall inspect a septic system installation done by said board of health member, or said member’s partner, employer, employee or co-employee. The inspection of work so done shall be performed either by the board of health of another city, town or district or by a special assistant health agent who is appointed solely for the purpose of performing such inspections by the mayor of a city, the board of selectmen of a town or the governing board of a district. If the board of selectmen also serves as the board of health, said septic system installer shall not participate in the appointment of special assistant health agent.
This section shall take effect upon its acceptance in a city, by the vote of the city council, subject to the provisions of the charter of such city; in a town, by a vote of town meeting; in a municipality having a town council form of government, by a vote of the town council, subject to the provisions of the charter of such municipality; and, in a district, by the vote as above provided of the cities and towns of the districts.
Chapter 111: Section 27. Organization of boards; appointment of physician and clerk; compensation Section 27. Every such board shall organize annually by the choice of one of its number as chairman. It may make rules and regulations for its own government and for the government of its officers, agents and assistants. It may appoint a physician to the board, who shall hold his office during its pleasure, may choose a clerk, who in a city shall not be a member of the board, and may employ the necessary officers, agents and assistants to execute the health laws and its regulations. It may fix the salary or other compensation of such physician and its clerk and other agents and assistants.
Chapter 111: Section 27A. Appointment of health officer by two or more towns; duties; compensation; joint committee Section 27A. Two or more towns may, by vote of each, form a district for the purpose of employing therein a health officer and necessary assistants and clerks, all of whom shall be appointed and may be removed by a joint committee composed of the boards of health of said towns. Persons so employed shall perform such duties and receive such compensation as said joint committee shall determine and, in so far as their duties in a given town are concerned, shall be the employees of and responsible to the regularly constituted board of health of said town. Said joint committee shall annually elect a chairman and a secretary and shall determine the relative amount of service to be performed in each town of the district by persons employed hereunder. The treasurer of one of the towns of the district designated by the joint committee shall be treasurer of the district and shall give to the district a bond with a surety company authorized to transact business in the commonwealth as surety, for the faithful performance of his duties as treasurer of the district, in such sum and upon such conditions as the joint committee may require. Said joint committee, annually in the month of December, shall estimate the amount of money required to pay the costs and expenses of the district for the following year, shall fix and determine the proportion of such costs and expenses to be paid by the respective towns thereof during such year and shall certify the amount so determined for each such town to the assessors thereof who shall include the same in the tax levy of such year. Upon order of the board of health of each such town, the town treasurer thereof shall, from time to time, subject to the provisions of section fifty-two of chapter forty-one, pay to the district treasurer such sums not exceeding the amount certified by the joint committee as the town’s share of the costs and expenses of the district. The district treasurer shall disburse the money so received, upon warrants approved by the health officer. A member town of a regional health district formed pursuant to this section may withdraw by majority vote taken at the annual town meeting of such member town, and said vote to withdraw shall become effective on the last day of the next fiscal year. This section shall not apply in the county of Barnstable nor shall it authorize any city to join in forming such a district.
Chapter 111: Section 27B. Regional health districts; regional board of health; powers and duties; administration; organization; management; accounts; rules and regulations Section 27B. Two or more municipalities may, in a city having a Plan E charter by the affirmative vote of a majority of all members of the city council, in other cities by vote of the city council and approval of the mayor, and by vote of a town at a regular annual town meeting, form a regional health district which shall consist of a regional board of health, a director of health and his staff. The regional health district shall have all the powers and shall perform all the duties conferred upon, or exercised by, the boards of health and health departments of the constituent municipalities under any law or ordinance pertaining thereto, except in so far as the regional health district may by majority vote delegate certain powers and duties to the constituent municipalities.
The regional health district, hereinafter referred to as the district, shall be administered by a full-time director of health, who shall be either (a) a physician, graduated from an approved school of medicine and registered or eligible for registration to practice medicine in the commonwealth, with one year of full-time graduate public health academic training or two years of full-time experience, and not engaged in private practice while serving as director of health; or (b) a lay person with professional academic training equivalent to a bachelor’s degree and with five years of satisfactory full-time experience in generalized public health programs, or a lay person with ten years of full-time satisfactory administrative experience and supervision of generalized public health programs. When a lay health officer is employed, there shall be employed a registered physician to perform such medical functions as are required.
The regional board of health, hereinafter referred to as the board, shall be comprised of at least one representative from each constituent municipality. Each constituent municipality having a population greater than ten thousand shall have one additional representative to the board for every population unit of ten thousand or major fraction thereof beyond the first ten thousand. In no instance shall there be more than five representatives from a single municipality on a board. Towns shall at a town meeting select, or change the method of selecting, their representative or representatives by any of the following methods:— (a) by appointment of the board of health, (b) by appointment of the selectmen, (c) by vote at the annual town meeting, or (d) by any other method decided at the annual town meeting. In cities such representatives shall be appointed by the mayor with the approval of the city council, or in cities having Plan E charters by the city manager, unless a definite mode of appointment is otherwise provided by the city charter. When the district includes one or more entire counties, the county commissioners of each entire county shall appoint an additional representative to the board. Each representative shall serve for a period of three years, excepting that at its initial organization the board shall decide the term of years for the first representatives who shall be elected or appointed to the board, so that thereafter approximately one third of the representatives will be elected or appointed each year. Said representatives shall serve without compensation, but shall receive their necessary traveling expenses from the board while in the performance of their official duties. Representatives to the board may be re-elected or reappointed for a maximum of two terms. The board shall meet annually and at such other times as it shall determine by its rules or when requested by the chairman of the board or the director of health.
Any constituent municipality may, by vote passed prior to July first in any year, withdraw from the district, such withdrawal becoming effective January first following; provided, that the municipality shall have been a member of the district for at least five years.
The board shall select a treasurer, who may be the treasurer of one of the constituent municipalities, to act as treasurer for the district. For the faithful performance of his duties, said treasurer shall give bond, with a surety company authorized to transact business in the commonwealth, in such sums and upon such conditions as the board may require. Said board, annually in the month of December, shall (a) estimate the amount of money required to pay the cost and expense of the district for the following year, (b) fix and determine by a majority vote the proportion of such costs and expenses to be paid by the individual municipalities thereof during such year, and (c) certify the amount so determined for each municipality to the assessors thereof, who shall include same in the tax levies of each year, and each municipality shall appropriate such sum for the district. In apportioning the costs, the board by a majority vote may use any of the following formulae as a basis for their apportionment:—(a) valuation according to the latest state valuation, establishing the basis of apportionment of state and county taxes, (b) population as determined by the most recent estimate by the secretary of the commonwealth, exclusive of universities and federal, state and county institutions, (c) a combined formula of valuation according to the latest state valuation and population as determined by the most recent estimate by the secretary of the commonwealth, exclusive of universities and federal, state and county institutions, or (d) any other method decided by majority vote of the board. Upon order of the board, the treasurer of each constituent municipality thereof shall from time to time, subject to the provisions of section fifty-two of chapter forty-one, pay to the treasurer of the district the amount certified by the board as the municipality’s share of the cost and expenses of the district. The treasurer of the district shall disburse the money so received upon warrant approved by the director of health and signed by the chairman or vice-chairman of the board. The accounts of each district shall be audited annually by the bureau of accounts of the department of corporations and taxation, under the provisions of sections thirty-five, forty and forty-one of chapter forty-four.
The board shall appoint, and may reappoint, for a term of five years, a director of health, hereinafter referred to as the director, as provided in this section. The board may remove the director for cause after proper notice and a public hearing. The director shall serve as secretary of the board, but shall have no vote. He shall be the executive and administrative head of the district, and may, with the approval of the board, designate one or more deputies and may appoint and employ, with like approval, such assistants as may be provided for in the budget. The director shall prepare and present annually to the board a report and a budget for its approval, together with such recommendations as he may deem proper. The board shall make and promulgate reasonable rules and regulations, for which notice and public hearing shall be given in the same manner and extent as required by the provisions of section thirty-seven of chapter thirty and section two of chapter thirty A. The board shall also (a) take evidence in appeals, (b) consider plans and appointments required by law, (c) hold hearings, and (d) discharge other duties required by law; but it shall have no administrative or executive functions. The board may delegate the holding of hearings to the director or his deputies. The board may elect an executive committee consisting of its chairman, vice-chairman, secretary and such other members as its rules may determine. Said executive committee shall have the authority to act for the board when the board is not in session.
All full-time incumbents of any office or position brought under the district at the time of its formation shall be transferred thereto without loss of civil service, retirement or other rights. All positions and offices of the district, including the director, but excluding representatives to the board, shall be subject to the provisions of chapter thirty-two, and all such included offices and positions shall be placed in the county retirement system of the county which has the majority of the population of the area served by the district at the time of its organization. Ninety days after the organizational meeting of the board, all district positions and offices, except the director and the representatives to the board, not under the provisions of chapter thirty-one at the time of the formation of the regional board of health, shall be placed within the civil service in the manner provided by chapter thirty-one and the rules and regulations promulgated thereunder, and all positions and offices subsequently established by the board shall be subject to the provisions of said chapter thirty-one and the rules and regulations thereof, unless the board by a majority vote within ninety days after its organizational meeting votes not to extend the provisions of said chapter to any or all of such eligible positions and offices. At any time after such a vote to exclude, however, the board by a majority vote may bring within the provisions of chapter thirty-one, in the manner set forth therein, any or all positions and offices, except the director and the representatives to the board, which were excluded but which are still subject to the jurisdiction of the board. The wages and salaries of all offices and positions, including those subject to chapter thirty-one, shall be determined by the board.
Chapter 111: Section 27C. Regional health districts; reimbursement; qualification; statement Section 27C. Each regional health district established under the provisions of section twenty-seven B shall be entitled to reimbursement from the commonwealth, to an amount not exceeding in the aggregate fifty cents per inhabitant of the constituent cities and towns, as determined by the last federal census, for expenditures incurred by it for initial capital outlays, including in such term the acquisition, construction, improvement or renovation of any buildings or premises for the use of the district and any original furnishings and equipment therefor, but excluding the costs of supplies, salaries and other expenses for the ordinary maintenance and operation of such district. In order to qualify for such reimbursement a regional board of health shall, before incurring any expenses reimbursable under this section, submit to the commissioner of public health an itemized statement of all proposed expenditures for such purposes. The commissioner shall examine such statement and shall notify said board to what extent, in his opinion, the proposed expenditures are reasonably necessary for the purposes of the regional health district and reimbursable hereunder, and the probable amount of reimbursement therefor. Within three months after the date of final payment for such capital outlays the said board shall submit to the commissioner a certified statement of its actual expenditures for such purposes. The commissioner shall, if he is satisfied that the expenditures so certified are reimbursable and not unreasonable or excessive, certify to the comptroller and the treasurer shall forthwith pay to such regional health district, from any amounts appropriated therefor, the amount of such approved reimbursement.
Chapter 111: Section 28. Annual reports Section 28. In each city such board shall annually in January make a full and comprehensive report to the city council of its acts during the preceding year and of the sanitary condition of the city. It shall also, if the city council or the standing committee on finance thereof so requires, send to the city auditor a detailed estimate of the appropriation required by its department for the next financial year.
Chapter 111: Section 29. Weekly reports of deaths from diseases dangerous to public health Section 29. Boards of health shall send to the department every week, upon forms to be prescribed by it, a report of deaths in their towns for the week ending Saturday noon, from all diseases declared by the department to be dangerous to the public health.
Chapter 111: Section 2A. Co-operation with Massachusetts rehabilitation commission Section 2A. The commissioner and any executive officer or employee appointed by him shall co-operate with the Massachusetts rehabilitation commission under the provisions of section eighty-one of chapter six for the vocational rehabilitation of any handicapped person.
Chapter 111: Section 2B. Air pollution emergencies Section 2B. If the commissioner of environmental protection, in this section called the commissioner determines that the condition or impending condition of the atmosphere in the commonwealth or in any part thereof constitutes a present or reasonably imminent danger to health, he may, with the approval of the governor, declare an air pollution emergency and cause the fact to be made known to the public.
The department of environmental protection, in this section called the department, after public hearing held in accordance with section two of chapter thirty A, may, and with the approval of the governor, establish, and from time to time revise, an air pollution emergency plan to protect the public health during periods of such declared emergencies. Said plan may include the imposition, during such periods, of controls and restrictions upon the use of certain fuels and fuel-burning installations, the practices of incineration and open burning, and the movement of specific types of motor vehicles, and said plan may include such other provisions as the department deems necessary to protect the public health during such emergency period.
During an air pollution emergency the commissioner may, with the approval of the governor, take whatever action is necessary to maintain and protect the public health, including but not limited to the implementing of the air pollution emergency plan, and prohibiting, restricting and conditioning emissions of dangerous or potentially dangerous air contaminants from whatever source derived, and requiring the evacuation of the public from, or restricting public entry into, designated areas. The commissioner shall clearly specify the geographical area to which such action shall apply.
If conditions which warrant the declaration of an air pollution emergency change or are so modified that they no longer constitute an actual or reasonably imminent danger to the public health, the commissioner shall, with the approval of the governor, declare the air pollution emergency terminated, and shall cause this fact to be made known to the public.
Any orders promulgated by the commissioner pursuant to this section, hereinafter called emergency orders, shall be enforced by personnel of the department of public health and by the state and local police. A court, judge or justice authorized to issue warrants in criminal cases may, upon complaint on oath by a person authorized to enforce emergency orders under this section that he believes that such an order is being violated in a particular property, premise or place, if satisfied that there is reasonable cause for such belief, issue a warrant identifying such property, premises or place and commanding such person to search such premises for further evidence of such violation. Information relating to trade secrets, secret processes or methods of manufacture or production shall be confidential and shall not be disclosed or received during the course of any such investigation; nor shall such information be used or disclosed in any public hearing under this section. Such enforcement personnel are further empowered to order any person having control of an air contamination source to stop and abate violation of any emergency order. Whoever knowingly fails within a reasonable time to comply with any such order to stop or abate giving due consideration to the practicability and to the physical and economic feasibility of compliance with such order shall be punished by a fine of not less than twenty dollars nor more than ten thousand dollars. For the purpose of this paragraph, each day or part thereof of violation of any such order to stop or abate, whether such violation be continuous or intermittent, shall be construed as a separate and succeeding offense. The superior court, on petition of any person authorized by this section to enforce emergency orders, shall have jurisdiction in equity to enforce compliance with such emergency orders.
Any aggrieved person may appeal to the commissioner or his designee for relief from the continuance of an order. If the commissioner or his designee finds that the continuance of any order in whole or in part is unreasonable or unnecessary in light of the then prevailing conditions of air pollution, he may terminate or modify any such order.
If such an appeal is disapproved by the commissioner or his designee, the aggrieved person shall, upon his request, be granted a public hearing on the question of relief from unreasonable restrictions and the continuance of such order by the commissioner. Such public hearing shall not be subject to the provisions of chapter thirty A but shall be held as soon as may be by said commissioner, who shall give notice of the same. If the commissioner, upon conclusion of said hearing, determines that any such order should be terminated, or modified in any way whatever, he shall enter such further order as he deems appropriate.
All powers granted to the commissioner by this section shall be in addition to and not in limitation of any powers granted him by any other provision of law.
“Air contaminant”, as used in this section, includes, but is not limited to, dust, fly ash, fume, gas, mist, odor, smoke, vapor, pollen, microorganisms, radioactive material, ionizing radiation, any combination thereof, or any decay or reaction product thereof.
Chapter 111: Section 2C. Pollution violations; orders of department of environmental protection Section 2C. The commissioner of environmental protection or his designee may issue orders in the name of the department of environmental protection upon witnessing or being presented proof of the violation of any statute, rule, regulation or code which the said department is authorized to enforce relative to pollution. Such orders shall have the same force and effect as any rule or regulation promulgated by said department and any such order may be revoked by said department.
Chapter 111: Section 2D. Massachusetts AIDS Fund; definitions Section 2D. As used in sections two D to two F, inclusive, the following words shall, unless the context clearly indicates otherwise, have the following meanings:—“AIDS”, acquired immune deficiency syndrome.
“AIDS advisory board”, the board established pursuant to section two F.
“Education”, efforts to inform the public, or groups within the public who are seropositive or at high risk of HIV infection, with targeted information directed specifically at decreasing the incidence of unsafe behavior associated with the transfer of the HIV virus.
“Experimental treatment”, treatment for the HIV infection or its associated illnesses which has not yet been approved for general use by an appropriate agency of the federal government.
“Fund”, the Massachusetts AIDS Fund established pursuant to section thirty-five K of chapter ten.
“HIV”, the human immunodeficiency virus associated with AIDS.
“Research”, scientific study conducted through community-based efforts to determine the effectiveness of drug and non-drug therapies in combatting the HIV infection and its associated illness, including research into the effectiveness of educational methods and materials.
“Seropositive”, the status of having tested positive for HIV antibodies.
“Treatment”, such treatment as is approved by appropriate agencies of the United States government for the HIV infection or its associated illnesses.
Chapter 111: Section 2E. Massachusetts AIDS Fund; expenditures Section 2E. The commissioner may expend amounts contained in the fund, with the advice and under the guidance of the AIDS advisory board, solely for research treatment, experimental treatment, and education related to acquired immune deficiency syndrome. Expenditures from the fund for such purposes shall complement and not replace existing local, state, or federal AIDS-related funding. The commissioner shall determine, with the advice and under the guidance of the AIDS advisory board, appropriate educational efforts to fund. The commissioner, after consultation with the AIDS advisory board, shall develop a list of research priorities and protocols. The commissioner shall make a priority of researching those drug and non-drug therapies that are not made generally available through federal and other state programs, and shall prioritize those therapies which show the most promise of combatting the HIV infection or its associated illnesses.
No more than six percent of the amounts held in the fund in any one year shall be used for administration of the fund; provided, however, that this provision shall not preclude the appropriation from the General Fund of the commonwealth of additional amounts to support the administration of the fund. Notwithstanding any statute or regulations to the contrary, the commissioner may develop, with the advice of the AIDS advisory board, procedures for accepting proposals for implementing any of the purposes of the fund as set forth in this section.
Chapter 111: Section 2F. Massachusetts AIDS advisory board; membership Section 2F. There shall be an AIDS advisory board constituted for the general purpose of making recommendations to the commissioner concerning the administration and allocation of the fund, and performing any other functions specifically granted to it by law.
The commissioner shall have the authority to appoint all members of the AIDS advisory board, which shall consist of no more than nineteen members, and shall include the following: two persons with AIDS; two persons with AIDS-related complex; two persons who are sero-positive; six persons each who have demonstrable experience in providing AIDS related direct services to persons who are at risk of HIV infection or who are sero-positive, one of whom has experience with persons of African-American heritage, one of whom has experience with persons of Hispanic heritage, one of whom has experience with persons of Haitian origin; one of whom has experience with persons who are intravenous drug users, one of whom has experience with local, state or federal prisoners, and one of whom has experience with gay men; a sociologist who has demonstrable experience in neighborhood based AIDS-related education or research; an epidemiologist who has demonstrated experience in neighborhood based AIDS-related research or treatment; a pediatrician with demonstrable experience in treating children with the HIV infection or related illnesses; and a representative of the AIDS Action Committee of Massachusetts.
Chapter 111: Section 3. Public health council; hearings, intervention Section 3. The council shall make and promulgate rules and regulations, take evidence in appeals, consider plans and appointments required by law, hold hearings, and discharge other duties required by law; but it shall have no administrative or executive functions. Hearings of the department may be held by the commissioner, or his designee or the hearings officer if so authorized by the commissioner, or by the hearings officer as provided in section seventy-one with respect to a refusal to renew or revocation of a license of a convalescent or nursing home, rest home or charitable home for the aged. The secretary of elder affairs or his designee may intervene on behalf of a resident or residents or the owner or administrator of a convalescent or nursing home, rest home, infirmary maintained in a town, or a charitable home for the aged in any proceedings before the council.
Chapter 111: Section 30. Agents; appointment; inspections Section 30. Boards of health may appoint agents or directors of public health to act for them in cases of emergency or if they cannot conveniently assemble, and any such agent or director shall have all the authority which the board appointing him had; but he shall in each case within two days report his action to the board for its approval, and shall be directly responsible to it and under its direction and control. An agent or director of public health appointed to make sanitary inspections may make complaint of violations of any law, ordinance or by-law relative to the public health.
Chapter 111: Section 31. Health regulations; summary publication; hearings; filing sanitary codes and related rules, etc. Section 31. Boards of health may make reasonable health regulations. A summary which shall describe the substance of any regulation made by a board of health under this chapter shall be published once in a newspaper of general circulation in the city or town, and such publication shall be notice to all persons. No regulation or amendment thereto which relates to the minimum requirements for subsurface disposal of sanitary sewage as provided by the state environmental code shall be adopted until such time as the board of health shall hold a public hearing thereon, notice of the time, place and subject matter of which, sufficient for identification, shall be given by publishing in a newspaper of general circulation in the city or town once in each of two successive weeks, the first publication to be not less than fourteen days prior to the date set for such hearing, or if there is no such newspaper in such city or town, then by posting notice in a conspicuous place in the city or town hall for a period of not less than fourteen days prior to the date set for such hearing. Prior to the adoption of any such regulation or amendment which exceeds the minimum requirements for subsurface disposal of sanitary sewage as provided by the state environmental code, a board of health shall state at said public hearing the local conditions which exist or reasons for exceeding such minimum requirements. Whoever, himself or by his servant or agent, or as the servant or agent of any other person or any firm or corporation, violates any reasonable health regulation, made under authority of this section, for which no penalty by way of fine or imprisonment, or both, is provided by law, shall be punished by a fine of not more than one thousand dollars.
Boards of health shall file with the department of environmental protection, attested copies of sanitary codes, and all rules, regulations and standards which have been adopted, and any amendments and additions thereto, for the maintenance of a central register pursuant to section eight of chapter twenty-one A.
Chapter 111: Section 31A. Permit for removal or transportation of garbage; application; exemptions Section 31A. No person shall remove or transport garbage, offal or other offensive substances through the streets of any city or town without first obtaining a permit from the board of health of such city or town; provided, however, that no rules or regulations shall restrict the hours of the day when garbage, offal or other offensive substances may be collected in areas zoned for business, commercial or industrial use. An application for such permit shall be in such form and contain such information, on oath, as such board shall require. All such permits shall expire at the end of the calendar year in which they are issued, but may be renewed annually on application as herein provided. No permit shall be transferred except with the approval of the said board.
Notwithstanding the foregoing provisions, any person may, without such a permit, transport garbage, offal or other offensive substances through the streets of a city or town in which said substances were not collected; provided, that he registers with the board of health of such city or town; and, provided further, that he transports said substances in accordance with such reasonable rules and regulations as may be established by such board of health. Motor vehicles owned by the commonwealth or any of its political subdivisions and motor vehicles engaged under contract with the commonwealth in the transportation of garbage or refuse shall be exempt from the provisions of this section; provided, however, that a city or town may recommend to the department of highways, in writing, an alternative route of travel for such motor vehicles whereby the noise or nuisance incident to such travel shall be minimized or abated and said department shall consider such alterations or changes in the travel routes of such motor vehicles as will result in the minimization of such noise or nuisance.
Chapter 111: Section 31B. Rules and regulations for removal of garbage; penalty Section 31B. Boards of health shall, from time to time, make rules and regulations for the control of the removal, transportation or disposal of garbage, offal or other offensive substances. Whoever violates any provision of section thirty-one A, or of any rule or regulation made thereunder, shall be punished by a fine of not more than one thousand dollars.
Chapter 111: Section 31C. Atmospheric pollution; regulation and control; publication; hearings; penalties; enforcement; jurisdiction; injunction Section 31C. A board of health, or other legal authority constituted for such purpose by vote of the town or city council shall have jurisdiction to regulate and control atmospheric pollution, including, but not limited to, the emission of smoke, particulate matter, soot, cinders, ashes, toxic and radioactive substances, fumes, vapors, gases, industrial odors and dusts as may arise within its bounds and which constitutes a nuisance, a danger to the public health, or impair the public comfort and convenience.
Said board of health or other legal authority, subject to the approval of the department of environmental protection, in this section called the department, may from time to time adopt reasonable rules and regulations for the control of atmospheric pollution. Before the board of health or other legal authority submits such rules and regulations to the department for approval, such board or other legal authority shall hold a public hearing thereon, of which notice shall be given by publication for one day in each of two successive weeks in a newspaper published in the town, the first publication to be at least fourteen days prior to the date of the hearing, or if no newspaper is published in such town, by posting a copy of such notice in a public place therein. Said rules and regulations, when approved by the department, and after publication in a newspaper published in the town, or, if no newspaper is published in such town, after posting a copy in a public place, shall have the force of law.
The department shall advise the board or other legal authority in all matters of atmospheric pollution. The department may, upon request of the board of health or other legal authority of a town adversely affected by atmospheric pollution arising in another town, after a hearing to all parties interested, assume joint jurisdiction to regulate or control such cause of atmospheric pollution and may exercise all powers of the local board of health or other legal authority under provisions of the General Laws or any special laws.
Whoever violates any order, rule or regulation promulgated or adopted under the provisions of this section shall be punished, for the first offense, by a fine of not less than one thousand nor more than five thousand dollars and for a subsequent offense, by a fine of not less than five thousand nor more than ten thousand dollars. For the purpose of this paragraph each day or part thereof of violation of such an order, rule or regulation whether such violation be continuous or intermittent, shall be construed as a separate and succeeding offense.
Rules and regulations promulgated or adopted under the provisions of this section shall be enforced by said board of health or other legal authority either of which may delegate the power to enforce specific regulations to other agencies or departments of the same city or town. The superior court shall have jurisdiction in equity to enforce such rules and regulations and may restrain by injunction any violation thereof.
Chapter 111: Section 31D. Privy, cesspool and septic tanks; disposal of contents; investigation of facilities Section 31D. Cities, towns and sewerage districts may, subject to the approval of the department of environmental protection, provide facilities for the receipt and disposal of privy, cesspool and septic tank contents collected for hire by private persons and may establish such charges for the use of such facilities as may be necessary for defraying the cost of construction, operating and maintaining the same.
The commissioner of environmental protection may investigate facilities for the receipt and disposal of privy, cesspool and septic tank contents in cities, towns and sewerage districts. If in his opinion he determines such facilities are inadequate for proper disposal of such contents, he may recommend necessary action for the protection of the public. If after a reasonable time, the city, town or sewerage district fails to act upon his recommendation in a manner satisfactory to him, upon an order issued by the department of environmental protection, a city, town or sewerage district shall provide facilities for the receipt and disposal of privy, cesspool and septic tank contents collected for hire by private persons. The city, town or sewerage district may establish such charges for the use of such facilities as may be necessary for defraying the cost of constructing, operating and maintaining the same.
Nothing in this section shall prevent a city, town or sewerage district, or a combination of cities and towns or cities, towns and a sewerage district from acting jointly in carrying out the provisions of this section.
Chapter 111: Section 31E. Individual sewage disposal systems; action on applications Section 31E. Any health officer or board of health for any city, town or district, whose authority includes the issuance of permits for construction, maintenance or alteration of individual sewage disposal systems for residential buildings of not more than four dwelling units, shall act upon a completed application for such permit to construct, maintain, or alter such system within forty-five days from the date upon which such completed application is filed with said health officer or board of health. If a determination on a completed application is not rendered within forty-five days by the appropriate health officer or board of health, then said permit shall be deemed to have been granted.
For the purpose of this section, a completed application shall include, but not be limited to, information satisfactory to any local board of health regarding the number of deep observation holes, all percolation test results and a plan which meets the requirements of the state sanitary code and any local health regulation. Such application shall be considered filed on the date upon which a completed application is presented by the person who is seeking the permit, to the health officer, board of health or agent thereof.
For the purpose of this section, “action on a completed application” shall mean approval of said application and issuance of the permit to construct, maintain, or alter, or disapproval of said application with a written statement of the reasons for such disapproval. The written statement of reasons, in the case of disapproval shall be sent to the applicant by first class mail, postage prepaid and shall include the information necessary in order to ascertain why the application or the proposed subsurface sewage disposal system or both fail to comply with local or state code requirements.
Nothing contained in this section shall be deemed to exempt the applicant from the regulations promulgated under the provisions of section thirteen of chapter twenty-one A.
Chapter 111: Section 32. Retention of cases by board of health Section 32. A board of health shall retain charge of any case arising under this chapter in which it has acted.
Chapter 111: Section 33. Construction and maintenance of sanitary stations Section 33. In every city, and in every town having a population of over ten thousand, when, in the opinion of the board of health, public necessity requires it, there shall be established and maintained by the town in some convenient places, at or near the business centre, one or more sanitary stations, with separate water closets for the use of each sex. Their number and location shall be determined by the board of health.
Chapter 111: Section 34 to 43. Repealed, 1937, 362, Sec. 6 Chapter 111: Section 3A. Board of trustees of Massachusetts hospital school; appointment Section 3A. There shall be a board of trustees, to be known as the board of trustees of the Massachusetts hospital school, serving in the department and consisting of five persons. The governor, with the advice and consent of the council, shall annually appoint a member of the board, who shall serve for five years beginning on the first Monday in December in the year of his appointment and until his successor is qualified.
Chapter 111: Section 4. Health districts; district health officers; enforcement of laws in districts Section 4. The commissioner, with the approval of the council, shall from time to time divide the state into not more than eight health districts. He may from time to time order two or more district health officers to work in one district, in order to study, suppress or prevent disease. Each district health officer shall act as the representative of the commissioner, and under his direction shall secure the enforcement within his district of the laws and regulations relating to public health. He shall have the powers and perform the duties set forth in this chapter, and, under the direction of the commissioner, shall perform such other duties as he may prescribe.
Chapter 111: Section 44, 45. Repealed, 1928, 229, Sec. 2 Chapter 111: Section 46 to 49. Repealed, 1937, 362, Sec. 6 Chapter 111: Section 4A to 4D. Repealed, 1971, 1076, Sec. 3 Chapter 111: Section 4E. Program to combat mental retardation in children Section 4E. The department of public health is hereby authorized and directed to establish a program to combat mental retardation in children suffering from a genetic effect causing phenylketonuria. The said program may be conducted in conjunction with any foundation or scientific organization, hospital or medical school or with an agency of the federal government. The department may accept for such purpose any special grant of money, services or property from the federal government or any of its agencies or from any such foundation, organization or medical school.
Chapter 111: Section 4F. Advisory council on radiation protection Section 4F. There shall be an advisory council on radiation protection consisting of the commissioners of public health, labor and industries, public safety, and administration, the personnel administrator, the director of civil defense, and six persons to be appointed by the governor, of whom two shall hold the degree of doctor in medicine or dental medicine and shall be specialists in the field of ionizing radiation injuries, one shall have training or experience in radiology, one in radiation or health physics, one in radiation law, and one in nuclear engineering or in the industrial application of ionizing radiation. Upon the expiration of the term of office of an appointive member, his successor shall be appointed in like manner for a term of six years. One of the appointive members shall be designated chairman of the council by the governor. The members of the council shall serve without compensation and shall not be reimbursed for any expenses incurred by them in the performance of their duties.
The advisory council shall meet at least twice a year at the call of the chairman or by vote of a majority of the members of the council. It may hold public hearings but shall not have the power to summon witnesses nor to require the production of books, records and papers. It shall consider and make recommendations to the governor, the general court, and the various departments of the executive branch as to the development, growth, and status of all substances, things, and apparatus within the commonwealth capable of emitting ionizing radiation.
Chapter 111: Section 4G. Epileptics; program for care, treatment and rehabilitation Section 4G. The department shall establish, in one or more institutions under its control, a program for the care, treatment and medical rehabilitation of persons suffering from epilepsy and shall disseminate such information relative to the management of convulsive disorders as it considers proper. The department may accept for such purposes and for research into the causes of convulsive disorders any special grant of money, services or property from the federal government or any of its agencies or from any foundation, organization or medical school.
The department shall cooperate with the Massachusetts rehabilitation commission in developing vocational rehabilitation programs for epileptics.
Chapter 111: Section 4H. Chronic renal diseases; care and treatment; agreements Section 4H. The department is hereby authorized, subject to appropriation, to establish and maintain services for the treatment and care of persons suffering from chronic renal diseases within the commonwealth.
The department may enter into such agreements with community hospitals and other health, welfare and rehabilitation agencies as are necessary to carry out the purposes of this section. The department may enter into agreements with out-of-hospital dialysis units licensed under the provisions of section fifty-one A for the care and treatment of persons suffering from renal disease; provided, that said units are licensed and operated pursuant to the rules and regulations of the department relative to out-of-hospital dialysis units; and, provided further, that any such agreement with an out-of-hospital dialysis unit be made in conjunction with a facility operated by the department which provides in-patient care and treatment for persons suffering from renal disease. Any payment made by the department or any other agency of the commonwealth to an out-of-hospital dialysis unit with which an agreement has been made in accordance with the provisions of this section shall be subject to the provisions of sections thirty K to thirty P, inclusive, of chapter seven and shall in no case be in excess of any applicable rate determined by the division of health care finance and policy or any successor agency.
Chapter 111: Section 4I. Erythroblastosis fetalis; prevention; rules and regulations Section 4I. The department is hereby authorized to establish, promote, and administer a statewide program for the prevention of erythroblastosis fetalis, and may produce and distribute as much anti-Rh gamma globulin as it deems necessary for such purpose.
The department may contract with any agency, public, private, or federal, and may adopt and promulgate such rules and regulations as are necessary to carry out the purposes of this section.
Chapter 111: Section 4J. Multi-Disciplinary Medical Review Team; certification of nursing home care eligibility Section 4J. No individual from birth to age twenty-two shall be admitted to a nursing home unless, prior to such admission, application has been made by or on behalf of such individual for certification by the Department’s Multi–Disciplinary Medical Review Team of eligibility for nursing home care in the nursing home to which the individual seeks admission. A majority of the members of the medical review team shall consist of currently licensed health and allied health professionals who are not employees of the commonwealth and who have been engaged full time in primary care practice in their respective areas of specialization within the two years immediately prior to the commencement of service on the medical review team. Such other individuals as the department may, from time to time, deem appropriate may also serve on the medical review team. No person shall serve on the medical review team for a period exceeding two years. The medical review team shall, in consultation with the individual’s referring physician, discharge planners at the individual’s referring health care institution, the individual’s parents, next-of-kin or guardians, the individual’s primary care physician, and, to the extent deemed necessary, the departments of mental health, social services, welfare, education, office for children and the commission for the blind, assess the medical, nursing, developmental and social needs of such individuals. In the event that the medical review team fails to render a decision on certification within ten business days after submission of any application for certification, the individual may, with the approval of his or her referring physician, be admitted to the nursing home. In reviewing applications for certification of eligibility, the medical review team shall not deny certification on the basis of sex, nationality, religious affiliation, residency or domicile, source of payment or reimbursement, type of illness or injury sustained or suffered by the individual, or, if the nursing home to which the individual seeks admission is able to provide requisite care, the ability of any other health care facility, wherever located, to provide such care. In the event that the medical review team denies certification, it shall recommend an alternative care program appropriate to each individual’s needs.
Chapter 111: Section 4K. Diethylstilbestrol; public information program; regional screening; annual report Section 4K. The commissioner shall establish, promote, and maintain a public information program regarding diethylstilbestrol, hereinafter referred to as DES. Such program shall be conducted throughout the commonwealth and shall include, but not be limited to, an effort to reach persons or the offspring of persons who have been exposed to DES in order to encourage such persons to seek medical care for the prevention or treatment of any malignant conditions resulting from such exposure. Such program shall emphasize the need for examinations and the need to remain informed about additional developments concerning DES.
Said commissioner shall designate and may enter into contracts with providers of health care for the purpose of establishing regional screening programs for women who were exposed to DES during pregnancy and their offspring who were exposed prenatally. In selecting such provider, said commissioner shall consider such provider’s compliance with state and federal standards, such provider’s location in relation to geographical distribution of persons exposed to DES, and the capacity of such provider to properly screen for breast, vaginal and cervical cancer, vaginal adenosis, undescended testes, infertility, and any other malignancies and changes resulting from exposure to DES.
Each such contract shall be upon such terms and condition
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