An Affiliate of the National Environmental Health Association
October 6, 2017
Monica Bharel, MD, MPH
Massachusetts Commissioner of Health
Chair of the Massachusetts Public Health Council
250 Washington Street
Boston MA. 02108-4619
RE: Proposed Amendments to 105 CMR 410.000
Minimum Standards of Fitness for Human Habitation
and 105 CMR 435.000 Minimum Standards for Swimming Pools
Please find attached recommended areas of revision from the Massachusetts Environmental Health Association (MEHA) for the above noted Massachusetts State Sanitary Code. The Association is please that the Massachusetts Department of Public Health (MDPH) is considering amending these important regulations, as they assist local Boards of Health in protecting public health. Although they have served us well for many years, they are desperately overdue for revision. Our Association’s recommendations reflect the gaps our membership has identified in the regulations, gaps whichhinder the effectiveness of Boards of Health in enforcing standards and protecting public health. MEHA is an affiliate of the National Environmental Health Association (NEHA). Members include Public Health Sanitarians, Environmental Health Specialists, Sanitary Code Inspectors, Health Officers, and Consultants representing most cities and towns throughout the Commonwealth. Our members are the front line inenforcingthe Housing and Swimming Pool code in the state. Our members have performed thousands of inspections and countless enforcement actions of these regulations, making them experts in the areas of housing and swimming pool sanitation standards and the practical implementation of these codes. It is for these reasons we urge the Department of Public Health and the Public Health Counsel to consider our recommendations. Some of the highlights of our recommended proposed amendments address the following
HOUSING CODE:
- We recommend clarifying definitions to better assist us in enforcing the regulations. For example, Hoarding is an emerging and challenging condition we have increasingly encountered during Housing inspections. Without Hoarding defined and addressed in the regulation, we are less effectives in tacklingthis serious public health concern.
- At times, the codelacks clarity. In various sections,such as Habitability Requirements, Minimum Square Footage Requirements, Safe Condition Requirements, Mold, Pest Control, and Owner and Occupant Responsibilities, we suggest “Guidance Documents” be developed to further clarify intent. Our Association would be happy to assist MDPH in the development of these documents.
- The Pest Control sections should be revised to clearly address occupants’ and property owners’ responsibilities. For example, addressing Bed Bugs has been challenging because of gaps in clarity.
- The regulation should be revised to address state wide trends in “Pay as you throw”, composting, and recycling.
SWIMMING POOLS:
- The Centers of Disease Control (CDC), NEHA, and the National Swimming Pool Foundation (NSPF) have worked tirelessly to develop a Model Aquatics Health Code (MAHC) that is science-based andincludes the latest and best practices in health,safety, and design for public and semi-public pools. Massachusetts should adopt these comprehensive standards, as they will allow us to best protect public health. Here isa link to the MAHC:
Again, thank you for revising these important regulations. Though we understand this is a significant task,it is a necessary one, in order to ensure effective protection ofpublic health.
Sincerely,
Patrick Maloney,MPAH, CHO, RSLeon Bethune,MPH
MEHA Housing Code/ Pool Code Committee President MEHA
Proposed Revisions by MEHA noted in blue
105 CMR 410.000: MINIMUM STANDARDS OF FITNESS FOR HUMAN HABITATION (STATE
SANITARY CODE, CHAPTER II)
410.001: Purpose
The purposes of 105 CMR 410.000 are to protect the health, safety and well-being of the occupants of housing and of the general public to facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention. This includes but is not limited to apartments, condominiums, cooperatives and single family residence
410.010: Scope
(A) No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000. This includes dwellings and dwelling units that have been previously cited by the Board of Health and have not received letters of compliance for previously cited issues
410.020: Definitions
Asbestos means:
(1) chrysotile, amosite, crocidolite; or
(2) in fibrous form, tremolit-asbestos, anthophyllite-asbestos, or actinolite-asbestos.
Asbestos Material means asbestos or any material containing asbestos.
This includes siding, roofing material, adhesives and other knows sources of asbestos used in construction
Compliance means meeting all the requirements of 105 CMR 410.000. It shall also mean correcting any violations of 105 CMR 410.000 in a work-personlike fashion and restoring all parts of the dwelling, or unit thereof, to the condition they were in before occurrence of any such violations. Compliance shall also mean in those cases where licenses or permits are required to perform work necessary to correct the violations, such as, but not limited to building, plumbing and wiring that the appropriate official certifies that the work has been completed in accordance with applicable laws and regulations,.which may include towns by-laws or local regulations.
Grandfathering: All requirements of the State Sanitary code are NOT grandfathered. Any exemptions are limited to historical and waiver/variance provision of the code. The Building Code and Fire Prevention Code grandfathering clauses do not apply to the state sanitary code.
Hoarding: The excessive accumulation that compromises the health, safety and sanitary conditions of a dwelling and or dwelling unit. Hoarding conditions are determined by using the Clutter Image Rating (CIR)* assessment tool from Oxford University Press in determining if a dwelling/dwelling unit is unsafe
Occupant means every person living or sleeping in a dwelling. Persons below the age of one are not deemed occupants in calculating
The Massachusetts Environmental Health Association (MEH) is strongly opposed to adding "inspectional services" to the definition of Board of Health (410.010: Definitions: Board of Health). While some large cities have delegated board of health authority to inspect to inspectional services, either by the board of health itself or by charter changes, inspectional services are simply not boards of health.
Because of lack of training and expertise in the applicable codes to be enforced, local public health can often be undermined when inspectional services responds to public health violations without engaging the board of health. This change in the definition of boards of health to include inspectional services would serve to complicate the already nebulous relationship between boards of health and inspectional services without any offsetting benefit. When health agents or sanitarians, acting pursuant to the authority of the board of health, make housing code inspections, they are more likely to notice other public health issues and bring them to the attention of the public health nurse, community health worker or to the board for further investigation.
410.200: Heating Facilities Required
(A) The owner shall provide and maintain in good operating condition the facilities for heating every habitable room and every room containing a toilet, shower or bathtub to such temperature as required under 105 CMR 410.201.
(B) Portable space heaters, parlor heaters, cabinet heaters, room heaters and any similar heaters having a barometric fed fuel control and its fuel supply tank located less than 42 inches from the center of the burner as well as the type of heating appliance adapted for burning kerosene, range oil or number one fuel oil and any portable wick type space heaters shall not be used and shall not meet the requirements of 105 CMR 410.200. (See M.G.L. c. 148, §§ 5A and 25B.)
(C) Electric portable space heat cannot be used as the primary heat source unless they are directly wired and installed to a wall surface and a separate electric circuit. Electrical portable space heaters can be used for the use of the occupant only when the existing heating system complies with the minimum standards and install following State Fire Prevention requirements.
410.400 Habitability Requirements
(A) No room or area in a dwelling may be used for habitation if more than ½ of its floor-to-ceiling height is below the average grade of the adjoining ground and is subject to chronic dampness. (Formerly .402)
(B) No room shall be considered habitable if more than ¾ of its floor area has a floor-to-ceiling height of less than seven feet. (Formerly .401A)
(A)In computing total floor area for the purpose of determining maximum permissible occupancy, that part of the floor area where the ceiling height is less than five feet shall not be considered. (Formerly .401B) This may be put into the Guidance Document as it is an explanation of how to enforce and we would appreciate your thoughts.
We also need to advise calculation does not include furniture etc covering floor in dwelling unit AND we need to note habitual space includes dining and living rooms when calculating Perhaps this would be a guidance document issue? (see final notes on issue concerns with guidance documents)
(D) Minimum Square Footage:
(1) Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area. (Formerly .400A)
(2) In a dwelling unit, every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet of floor space; every room occupied for sleeping purposes by more than one occupant shall contain at least 50 square feet of floor space for each occupant. (Formerly .400B)
***new*** (3) Any dwelling unit consisting of four or less habitable rooms, exclusive of kitchen, must contain a minimum of 150 square feet of contiguous open area available for common social gathering or activities of the occupants.
***new*** (4) Any dwelling unit consisting of more than four habitable rooms, exclusive of kitchen, must contain a minimum of 250 square feet of contiguous open area available for common social gathering or activities of the occupants.
(5)In a rooming unit, every room occupied for sleeping purposes by one occupant shall contain at least 80 square feet of floor space; every room occupied for sleeping purposes by more than one occupant shall contain at least 60 square feet for each occupant. (Formerly .400C)
We need to advise dining rooms and living rooms can be included in calculations (unless we want to prohibit this occupancy which is not practical)
410.452: Safe Condition
The BOH will use the Clutter Image Rating (CIR)* assessment tool from Oxford University Press in determining if a dwelling/dwelling unit is unsafe
Guidance document should note “maintaining egress safe includes free and clear pathway of travel. Piles of boxes, papers and other materials cannot be in these pathways” (many hording cases come to mind on this issue)
The occupant is (May be responsible per written leasing agreement) responsible for maintaining free of snow and ice, the means of egress under his or her exclusive use and control provided:
We need to allow for a property owner and occupant to be allowed to have an arrangement that the occupant agrees to maintain surfaces (shovel salt etc) This must be in writing
410.481: Posting of Name of Owner
(A)An owner of a dwelling who does not employ a resident manager shall post and maintain signage adjacent to the mailboxes or elsewhere in the building so as to be visible to the residents and in accordance with M.G.L. c. 143, § 3S which contains:
Suggest requiring posting of contact info even with onsite resident manager. This will allow for emergency and inspectional department to be able to contact resident manager in emergency
1)The owner’s name, address and telephone number or ***new*** requires owner’s name always be posted
2)The manager or agent's name, address and telephone number or
3)The name, address and telephone number of the managing trustee or partner if it is a realty trust or partnership or
4)The name, address and telephone number of the president of the corporation if a corporation
(B) The posting shall be placed on the dwelling adjacent to the mailboxes, or within the interior of dwelling in a location visible to the residents, on a durable material, not less than 20 square inches in size.
We need to add wording that someone needs to RESPOND within 24hr for critical (24hr items) and 48 hrs for all other items Response needs to be defined as returning the call of the complainant or BOH. This is a real issue where we (BOH) receives many complaints of NO ONE ANSWERS PHONE OR MESSAGE IS LEFT ON MACHINE AND TO RESPONSE OCCURS
410.500: Owner's Responsibility to Maintain Building and Structural Elements
Every owner shall maintain building and structural elements of his dwelling:
(A) So that the dwelling excludes wind, rain and snow, is pest-proof, watertight and free from chronic dampness,and excessive humidity (above epa established standards), weathertight, in good repair and in every way fit for the use intended.
(B)So that the dwelling is free from holes, cracks, loose plaster, or other defect where such holes, cracks, loose plaster or defect renders the area difficult to keep clean, creates an accident hazard, or provides a harborage for pests.
(C)Repairing surfaces with mold must be in accordance with epa established standards
410.505: Occupant's Responsibility Respecting Structural Elements
The occupant shall exercise reasonable care in the use of the floors, walls, doors, windows, ceilings, roof, staircases, porches, chimneys, and other structural elements of the dwelling. The occupant shall notify the owner of any damage to structural elements within 48 hours of occurrence.In Writing with copy to BOH
B) An exterior door or a door leading from a dwelling unit to a common passageway shall be considered to be weathertight only if:when
(1) all panes of glass are in place, unbroken and properly caulked; and
(2) the door opens and closes fully without excessive effort; and
(3) exterior cracks between the prime door frame and the exterior wall are caulked; and
(4) one of the following conditions is met:
(a) a storm door is affixed to the prime door frame, with caulking installed so as to fill exterior cracks between the storm door frame and the prime door frame; or
(b) weather-stripping is applied such that the space between the door and the prime door frame is no larger than 1/16 inch at any point on the perimeter of the door or
(c) the door is sufficiently well-fitted such that, without weather-stripping, the space between the door and the prime door frame is no larger than 1/16 inch at any point on the sides of the door or _ inch at any point on the top or bottom of the door.
Guidance document needs to advise sealing windows with plastic is unacceptable as to renders window in-operatable
ALSO Windows with installed AC units are not deemed weather tight. Heat code readings cannot be recorded if AC unit is in window
410.550: Extermination of Insects, Rodents and SkunksPests
The control and extermination of pests shall be implemented in the following manner:
(A) The occupant of a dwelling containing one dwelling unit shall maintain the unit free from all rodents, skunks, cockroaches and insectpest infestation, and shall be responsible for exterminating themtheir extermination provided, however, that the owner shallhas maintained any screen, fence or other structural element necessary to keep rodents and skunkspests from entering the dwelling.
(B) The owner of a dwelling containing two or more dwelling units shall maintain it and its premises free from all rodents, skunks, cockroaches and insect pest infestation and shall be responsible for exterminating themtheir exterminationcockroaches and insectpestinfestation, and shall be responsible for exterminating themtheir extermination.
D) The occupant of a dwelling unit or rooming unit shall maintain the unit in a sanitary manner so as to prevent the attraction of pests.
We also need to note in cases involving bed bugs fruit fly’s etc occupants are required to follow pest control companies requirements for occupant responsibilities this includes but is not limited to disposing of contaminated unsalvageable belongings, food stuffs, laundering, cleaning and securing personal belongings as deemed necessary by PCO or BOH
We also need to note Extermination must in implemented by persons authorized by the State Pesticide Board. (this implies you can treat your own house but only a PCO can treat all other environments.
410.000: Installation of Screens
(A)The owner shall provide and install screens for windows designed to open to the outside so that: The requirement for the first 4 floors only has been eliminated