The Legal Handbook for Massachusetts Boards of Health 3rd Edition © 2021 Massachusetts Association of Health Boards INTRODUCTION From its beginning in 1966, the Conservation Law Foundation dealt with issues relating to boards of health. It was soon apparent that although health boards are among the most powerful of local authorities, there were few resources to assist them in their tasks. In 1980, CLF began a project designed to provide information and assistance to local health officials in Massachusetts. During the first two years, CLF Senior Attorney Judith Pickett answered hundreds of letters and calls from health agents and health board members across the state on a wide range of topics. The information most frequently requested was incorporated in the original Legal Handbook for Boards of Health which was published in 1982. During that same year, the Conservation Law Foundation recognized the need for a non-profit organization dedicated to local health boards. By sponsoring formative meetings and promoting the cause of local health boards, CLF helped to make the idea of the Massachusetts Association of Health Boards a reality. MAHB, incorporated in 1982, is a non- profit organization dedicated to the promotion of public and environmental health through the education and support of boards of health. Our first decade saw many changes in the laws governing public and environmental health. In addition to continuing assistance from CLF, MAHB developed an informal network of attorneys who have served as legal advisors on a broad range of issues relating to boards of health. As time passed and laws and regulations changed, the Legal Handbook needed updating. With the help of our legal advisors and the generous permission of CLF, we attempted to preserve the best of the original, with revisions and additions as needed. Since the early 2000’s MAHB has focused on assuring that local boards of health are properly resourced with the knowledge, regulatory information, legal guidance and professional standards needed to regulate issues, businesses and public institutions in a way that most optimally serves the public health across the Commonwealth. We have placed great emphasis on our annual Certificate Programs in order to offer professional development to board of health members and health staff. An introduction and review of areas of jurisdiction and best practices is offered annually in these programs for the benefit of newly seated board members. The other educational programs include a panoply of highly relevant and contemporary topics covering issues ranging from Title 5 well and septic regulation, to human sex trafficking, to board governance, to battling opioids, to dealing with environmental issues and emergency preparedness, and of course tobacco and vaping. As we approach the quarter century mark, MAHB is endeavoring to expand its presence into the local community by offering enrichment opportunities for local boards to invite MAHB’s speakers from other communities to address common issues and to perhaps offer solutions to locally pressing issues. We offer an ever-expanding list of form regulations for our members to download and custom tailor to their own specifications. Our Executive Board members have varying backgrounds and are always available to any local boards to discuss and assist with any unique issues. As of the date of publication, our Executive Director and Chief Legal Counsel is assisting several municipalities in litigation involving the sale of flavored smoking materials. ii This handbook is organized into four major sections. The first section describes the "tools" of legal control - statutes, regulations, and cases. The next section describes the organization and administration of boards of health. It is remarkable how often the rules of procedure are unintentionally violated, sometimes jeopardizing the board's ability to enforce its regulations and maintain credibility within the community. Procedural regularity is essential to enforcement of any law. The remainder of the book covers a partial listing of activities regulated by boards of health. Each of these activities is assigned a different chapter number to accommodate future updates, ease of use of the manual and to facilitate additional commentary on new topics. While the original handbook, contained appendices of model environmental regulations, those were deleted from the prior revision because MAHB has compiled a comprehensive model environmental health code and many regulation examples and models are available on our website www.mahb.org. It is relevant to note, however, that one of the most important responsibilities of health boards is the protection of public and private water supplies which can only be accomplished through the adoption of local regulations. Appendix A offers a model regulation regarding special accounts to pay for consultants to assist in plan review. Appendix B provides additional practical information concerning the adoption of regulations. Appendix C provides sample enabling language for the non-criminal disposition of violations of municipal by-laws, rules and regulations, an important enforcement tool available to boards of health. Appendix D is a draft Animal Regulation with an eye towards the newly enacted Agriculture Statute, which became effective in January of 2021. Finally, Appendix E is a collection of relevant COVID-19 Emergency Orders and procedural documents relating to the enforcement of those orders. Because the COVID-19 epidemic was in full effect at the time of publication, MAHB is planning to update this Guide at an appropriate juncture. In partnership with the Massachusetts Department of Public Health and The Massachusetts Department of Environmental Protection, MAHB also publishes the Guidebook for Massachusetts Boards of Health, which covers in greater detail the many areas of public health that boards of health are responsible for under Massachusetts laws and regulations. iii CONTRIBUTING AUTHORS 1995 Edition and Subsequent Contributing Authors Ch. 1 – Statutes, Regulations and Cases Judy Pickett, Pickett & Miyares Edited, Michael R. Hugo, J.D. (2021) Ch. 2 – Organization and Administration of Health Boards Barbara J. Saint Andre, Principal, Kopelman and Paige, P.C. Marc Boutin J.D. (2001) Cheryl Sbarra J.D. (2011) Edited, Michael R. Hugo, J.D. (2021) Ch. 3 (New) – Administration of Health Boards Michael R. Hugo, J.D. (2021) Ch. 4 – General Authority to Regulate: Health Board Regulations Judy Pickett, Pickett & Miyares Marc Boutin J.D. (2001) Cheryl Sbarra J.D. (2011) Edited, Michael R. Hugo, J.D. (2021) Ch. 5 – Authority to Regulate Specific Activities: Subsurface Sewage Disposal Systems Alexandra Dawson, Director of Legal Affairs, MACC Dan Ottenheimer, Mill River Consulting, (2011) Edited, Michael R. Hugo, J.D. (2021) Ch. 6 – Authority to Regulate Specific Activities: Drainage & Solid Waste George A. Hall, Jr., Anderson & Kreiger Dan Ottenheimer, Mill River Consulting, (2011) ) Michael A. Leon, Partner, Warner & Stackpole; John T. Smolak, Associate, Warner & Stackpole, member of Warner & Stackpole Environmental Law and Land Use Group) Nancy Kaplan, Senior Associate, McGregor & Shea, chair, the Boston Bar Association Solid Waste Committee) Edited, Michael R. Hugo, J.D. (2021) Ch. 7 – Authority to Regulate Specific Activities: Hazardous Waste Facility Site Assignment J. Raymond Miyares, (Pickett & Miyares) Edited, Michael R. Hugo, J.D. (2021) Ch. 8 – Authority to Regulate Specific Activities: Subdivisions Judy Pickett, (Pickett & Miyares) Edited, Michael R. Hugo, J.D. (2021) iv Ch. 9 – Authority to Regulate Specific Activities: Offensive or Noisome Trades Judy Pickett, (Pickett & Miyares) Edited, Michael R. Hugo, J.D. (2021) Ch. 10 – Authority to Regulate Specific Activities: Nuisance Judy Pickett, (Pickett & Miyares) Edited, Michael R. Hugo, J.D. (2021) Ch. 11 – Authority to Regulate Specific Activities: Lead Paint Stephanie Pollock, Conservation Law Foundation) Edited, Michael R. Hugo, J.D. (2021) Ch. 12 – Authority to Regulate Specific Activities: Tobacco and Vaping Products Cheryl Sbarra J.D. MAHB Exec. Director & Senior Staff Attorney (2001, 2011, 2021) Ch. 13 (New) – Authority to Regulate Specific Activities: Cannabis and Cannabidiol (CBD) Cheryl Sbarra J.D. MAHB Exec. Director & Senior Staff Attorney (2021) Ch. 14 – Authority to Regulate Specific Activities: Air/Noise Pollution George A. Hall, Jr. Anderson & Kreiger) Edited, Michael R. Hugo, J.D. (2021) Ch. 15 – Authority to Regulate Specific Activities: Betterments J. Raymond Miyares, Pickett & Miyares) Edited, Michael R. Hugo, J.D. (2021) Ch. 16 (New) – Agriculture Michael R. Hugo, J.D. (2021) Ch. 17 – Emerging Issues Michael R. Hugo, J.D. (2021) v ACKNOWLEDGMENTS Creation of the original handbook was the joint responsibility of Judith Pickett, then Senior Attorney at the Conservation Law Foundation, and Lyn White, Environmental Health Project Director, with the assistance of Kenneth T. Hoffman, Staff Attorney and numerous technical and legal interns. Funding for the first edition was provided by the following: Bird Companies Charitable Trust; Frederick W. Beinecke Fund; New England Biolabs, Inc.; Jessie Smith Noyes Foundation; Rockefeller Family Fund In 1991, the Conservation Law Foundation authorized MAHB to reprint sections of the original Handbook, and incorporate them into the second edition. Our special thanks to CLF, for the support and confidence they have given us, and to the attorneys who have contributed to this book. The