HomeThe Title V Issue Revisited: An Insurer'sView
by Leslie J. Cook, Esquire
Contrary to a firm resolve to delay modification of the new Title V regulationsuntil late fall at the earliest, Lieutenant Governor Celluci, together withDEP
Commissioner David Struhs, recently announced a series of major revisionsto the
much reviled regulations which went into effect March 31, 1995. All butthree of the itemized modifications were deemed to be administrative innature and became effective immediately. Those requiring legislative approvalrelate to the enactment of a tax credit of up to $2500 per septic systemrepair (unused portions of this credit may be carried over for up to sevenyears); the designation of additional loan monies to be made available tofinance the repairs and upgrades needed to comply with the new regulations;the creation and implementation of a statewide uniform code for the repairand upgrade of existing septic systems which will provide local boards ofhealth with clear and concise guidelines. The money currently set asidefor septic and sewer relief will not exceed $55 million, however the exactamount of money to be funded will not be known for some time. The administrativechanges already implemented are targeted, almost exclusively, at providingrelief to homeowners with existing septic systems. New construction willcontinue to be governed by the new, stricter regulations. Some of the privatesewage disposal systems which "exhibited failure criteria" onthe DEP approved report form, as a result of the inspection proceedings,may not now be interpreted in the same manner. Existing septic systems orcesspools located within fifty feet of (non drinking) surface waters won'tautomatically fail the inspection.
Cesspools in this category, as well as septic systems within 100 feetof drinking water supplies will be subject to review for pollution effectsby local governments; an unsatisfactory evaluation will result in failure.If a cesspool is located within 100 feet of a drinking water supply it willstill need to be replaced. Although the need for completed inspections atthe time of closing has not been eliminated, the time frames have been relaxedto a certain degree. Both certificates of completion and inspection reportswill be valid for two years, rather than the nine months set forth in theoriginal regulations. If a homeowner has the system pumped annually, theinspection report may be used up to three years after the date of the inspection.No inspection is necessary if sewers are to be constructed within two yearstime. Any repairs required as a result of a failed system may be deferredif sewers are to be built within five years. Extensions to the five yearinterval may be granted by the DEP to local municipalities in the eventconstruction has begun, but will not be complete within the appropriatetime frame. The greatest impact the modified regulations will have is oncondominium units. A shared system servicing two or more units will nothave to be inspected more than once in three years regardless of the numberof units which are transferred. The number of bedrooms specified in theMaster Deed of the condominium will determine the size of the system necessaryto maintain the facilities, whether as a single system or as one of manysystems. The mandatory filing of inspection reports by homeowners has nowbecome a voluntary act, thereby placing systems which have failed to passoutside the purview of the regulations. Until such time as a sale, or othertriggering event occurs, the forced repair or replacement of the systemis alleviated.
When a failed system is reported to the local board of health the necessaryrepairs do not have to be completed until two years has expired. Systemscan now be pumped out up to a maximum of four times per year before a systemfails on pump out criteria alone. New rules are being drafted which areintended to streamline and clarify the inspection requirements with respectto bankruptcy, foreclosure and inheritance situations. Inspections are notrequired where there is an inter vivos transfer between spouses or in thecase of a new mortgage or refinancing. Municipalities may choose to adoptan overall inspection schedule in lieu of requiring inspections to be conductedat the time of transfer. The boards of health in each community are nowobligated under the new rules to consider "the economic feasibilityof the upgrade costs" not only the physical possibilities as dictatedby the conditions of the site when determining the required level of upgradeor replacement of an existing system. It is inevitable that there will beadditional revisions to Title V.
Leslie Cook is an attorney at First American Title Insurance in Boston,Massachusetts.