Chapter 136

2007 -- H 5037 SUBSTITUTE B AS AMENDED

Enacted 06/27/07

 

A N A C T

RELATING TO HEALTH AND SAFETY - RHODE ISLAND CESSPOOL ACT OF 2007

          

     Introduced By: Representatives Walsh, Ginaitt, Handy, Long, and Dennigan

     Date Introduced: January 10, 2007

 

It is enacted by the General Assembly as follows:

 

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

 

     CHAPTER 19.15

 

THE RHODE ISLAND CESSPOOL ACT OF 2007

 

     23-19.15-1. Short title. -- This chapter shall be known and may be cited as the "Rhode

Island Cesspool Act of 2007."

 

     23-19.15-2. Legislative findings. -- The general assembly hereby recognizes and

declares that:

     (1) There exists within certain portions of the state the need to abate pollution and threats

to public health caused by cesspools, particularly high-risk cesspools that pose direct threats to

public health and the environment.

     (2) It is estimated that there are more than fifty thousand (50,000) cesspools within the

state as of 2006.

     (3) Cesspools are a substandard and often inadequate means of sewage treatment and

disposal.

     (4) Many cesspools contribute directly to groundwater and surface water contamination.

     (5) Wastewater disposed from cesspools contains bacteria, viruses, ammonium and other

pollutants with high biochemical oxygen demand, and may also include phosphates, chlorides,

grease, and chemicals used to clean cesspools.

     (6) Wastewater disposed from cesspools frequently exceeds drinking water health

standards for certain contaminants.

     (7) Wastewater disposed from cesspools can pose significant health threats to people who

come into contact with, or consume, contaminated surface waters or groundwaters.

     (8) Appropriate treatment of sewage disposed into the ground is essential to the

protection of public health and the environment, particularly in relation to Narragansett Bay and

the rest of the state's coastal region, and public drinking water resources.

     (9) Replacement of cesspools with modern ISDS technology reduces risks to public

health and the environment.

     (10) In sewered areas, sewer tie-ins offer a readily available, low-cost means of

mitigating problems and threats caused by cesspools.

     (11) A fund exists to assist homeowners with the costs of removing cesspools and

inadequate septic systems and replacing them with an approved ISDS if the community in which

the homeowner resides has created a wastewater management district in accordance with chapter

45-24.5.

 

     23-19.15-3. Declaration of purpose. -- The purpose of this chapter is to phase-out use of

cesspools that present the highest risk to public health and/or the environment namely,

cesspools located in close proximity to tidal water areas and public drinking waters. Additionally,

this chapter is intended to allow for the identification and assessment of cesspools on all

properties throughout the state that are subject to sale, and to phase-out any such cesspools that

are found to be failed.

 

     23-19.15-4. Definitions. -- For the purposes of this chapter the following terms shall

mean:

     (1) "Cesspool" means any buried chamber other than an individual sewage disposal

system, including, but not limited to, any metal tank, perforated concrete vault or covered hollow

or excavation, which receives discharges of sanitary sewage from a building for the purpose of

collecting solids and discharging liquids to the surrounding soil.

     (2) "Department" means the department of environmental management as established in

chapter 42-17.1.

     (3) "Director" means the director of the department of environmental management or his

or her designee.

     (4) "Failed cesspool" means a cesspool where one or more of the following conditions

exist: (i) the cesspool fails to accept or dispose of sewage, as evidenced by sewage at the ground

surface above or adjacent to the cesspool, or in the building served; (ii) the liquid depth in a

cesspool is less than six (6) inches from the inlet pipe invert; (iii) pumping is required more than

two (2) times a year; (iv) the cesspool is shown to have contaminated a drinking water well or

watercourse; or (v) there is shown to be direct contact between the bottom of the cesspool and the

groundwater table.

     (5) "Individual sewage disposal system" or "ISDS" means any system of piping, tanks,

disposal areas, alternative toilets or other facilities designed to function as a unit to convey, store,

treat and/or dispose of sanitary sewage, by means other than discharge into a public sewer

system.

     (6) "System inspector" means a person approved by the department as capable of

properly assessing the condition of an ISDS.

 

     23-19.15-5. Inspection. -- (a) Unless exempted under subsection 23-19.15-8(a), the

owner of property served by a cesspool in the following areas shall cause an inspection to be

performed on said cesspool by a system inspector in accordance with a schedule established by

the department, but no later than January 1, 2012:

     (i) which cesspool is within two hundred feet (200) of the inland edge of a shoreline

feature bordering a tidal water area [corresponding to the jurisdiction of the RI Coastal Resources

Management Council];

      (ii) which cesspool is within two hundred feet (200) of a public drinking water well; and

      (iii) which cesspool is within two hundred feet (200) of a surface drinking water supply,

specifically the impoundment from which water is drawn via the intake.

     The inspection shall be conducted and reported in accordance with procedures required

by the department, and the results shall be recorded on forms prescribed by the department.

     (b) Pursuant to section 5-20.8-13, every contract for the purchase and sale of real estate

which is or may be served by a private cesspool, shall provide that potential purchasers be

permitted a ten (10) day period, unless the parties mutually agree upon a different period of time,

to conduct an inspection of the property's on-site sewage system in accordance with procedures

required by the department in subsection 23-19.15-5(a), before becoming obligated under the

contract to purchase.

 

     23-19.15-6. Cesspool removal and replacement. -- (a) Cesspools found to be located

within the areas identified in subsection 23-19.15-5(a) above shall cease to be used for sewage

disposal and shall be properly abandoned in accordance with the following schedule:

     (1) Tier 1 Any cesspool deemed by the department or a system inspector to be failed in

accordance with this chapter shall be properly abandoned within one year of discovery unless an

immediate public health hazard is identified, in which case the director may require a shorter

period of time.

     (2) Tier 2 Any cesspool located on a property which has a sewer stub enabling

connection to a public sewer shall be properly abandoned, and the building served by the cesspool

shall be connected into the sewer system of such premises with such sewer and fill up and destroy

any cesspool, privy vault, drain or other arrangement on such land for the reception of sewage,

excluding any Rhode Island department of environmental management ISDS approved system,

prior to the one year anniversary of the sale in ownership. If such abutting owner or occupant of

land who is required to connect to the sewage system fails to do so in prescribed time period, then

such abutting owner or occupant of land shall be required to pay usage fees as if such abutting

owner or occupant of land were connected to the sewage system.

     (3) Tier 3 Any cesspool within two hundred feet (200) of a public drinking water well,

or within two hundred feet (200) of the inland edge of a shoreline feature bordering a tidal water

area [corresponding to the jurisdiction of the RI Coastal Resources Management Council], or

within two hundred feet (200) of a surface drinking water supply [specifically, the impoundment

from which water is drawn via the intake], shall be properly abandoned by January 1, 2013,

excluding those properties subject to section (a)(2) above.

     (b) Any cesspool required to be abandoned pursuant to this chapter shall be replaced with

an approved ISDS, or the building served by the cesspool shall be connected to a public sewer,

prior to the applicable deadlines contained in subsection 23-19.15-6(a).

 

     23-19.15-7. Waiver. -- The director may grant a waiver, to the extent necessary, from

applicable provisions listed in subsection 23-19.15-6(a) provided the homeowner demonstrates

undue hardship and the cesspool is not a failed system as defined herein. No waiver shall exceed

five (5) years from the dates specified in subsection 23-19.15-6(a). Any waiver granted shall

expire upon transfer or sale of the land or easement upon which the cesspool is located.

 

     23-19.15-8. Exemption. -- (a) The provisions of section 23-19.15-5 and subsection 23-

19.15-6(a) shall not apply to any cesspool located in an area of a community covered by

municipal on-site wastewater management ordinance that requires the risk-based phase-out of

cesspools on an alternative schedule that meets the purposes of this act.

     (b) The provisions of subsection 23-19.15-6(a) shall not apply to any cesspool located on

a property that is properly designated to be sewered no later than five (5) years after the

applicable deadlines provided in subsection 23-19.15-6(a) provided: (i) it is not a failed cesspool

as defined herein; (ii) the owner does not increase the design sewage flow into the cesspool or

add bedrooms to the building served by the cesspool; (iii) the municipality holds bonding

authorization or some other dedicated financial surety for expansion of sewers to the area of the

building served by the cesspool; and (iv) the property owner certifies, in writing, that the

dwelling/building will be connected to the sewer system within six (6) months of receipt of the

notification to connect to the sewer system.

 

     23-19.15-9. Notice to remove and replace cesspools. -- (a) The owner of any cesspool

who has not complied with the requirements pursuant to this chapter shall be in violation of this

chapter and subject to enforcement action by the department in accordance with chapters 42-17.1-

2 and 42-17.6 of the general laws.

     (b) Notwithstanding the above provisions, the director may require the abandonment and

replacement of any cesspool with an approved ISDS prior to the dates specified in subsection 23-

19.15-6(a) if the cesspool is a large capacity cesspool as defined pursuant to applicable federal

regulations governing underground injection control (UIC) facilities.

 

     23-19.15-10. Regulations. -- The department shall promulgate rules and regulations as

may be necessary to implement and carry out the provisions of this chapter.

 

     23-19.15-11. Severability and construction. -- The provisions of this chapter shall be

severable, and if any court declares any phrase, clause, sentence, or provision of this chapter to be

invalid, or its applicability to any government, agency, person, or circumstance is declared

invalid, the remainder of the chapter and its relevant applicability shall not be affected. The

provisions of this chapter shall be liberally construed to give effect to the purposes thereof.

 

     SECTION 2. Section 5-20.8-2 of the General Laws in Chapter 5-20.8 entitled "Real

Estate Sales Disclosures" is hereby amended to read as follows:

 

     5-20.8-2. Disclosure requirements. -- (a) As soon as practicable, but in any event no

later than prior to signing any agreement to transfer real estate, the seller of the real estate shall

deliver a written disclosure to the buyer and to each agent with whom the seller knows he or she

or the buyer has dealt in connection with the real estate. The written disclosure shall comply with

the requirements set forth in subsection (b) of this section and shall state all deficient conditions

of which the seller has actual knowledge. The agent shall not communicate the offer of the buyer

until the buyer has received a copy of the written disclosure and signed a written receipt of the

disclosure. If the buyer refuses to sign a receipt pursuant to this section, the seller or agent shall

immediately sign and date a written account of the refusal. The agent is not liable for the accuracy

or thoroughness of representations made by the seller in the written disclosure or for deficient

conditions not disclosed to the agent by the seller.

      (b) (1) The Rhode Island real estate commission may approve a form of written

disclosure as required under this chapter or the seller may use a disclosure form substantially

conforming to the requirements of this section. The following provisions shall appear

conspicuously at the top of any written disclosure form: "Prior to the signing of an agreement to

transfer real estate (vacant land or real property and improvements consisting of a house or

building containing one to four (4) dwelling units), the seller is providing the buyer with this

written disclosure of all deficient conditions of which the seller has knowledge. This is not a

warranty by the seller that no other defective conditions exist, which there may or may not be.

The buyer should estimate the cost of repair or replacement of deficient conditions prior to

submitting an offer on this real estate. The buyer is advised not to rely solely upon the

representation of the seller made in this disclosure, but to conduct any inspections or

investigations which the buyer deems to be necessary to protect his or her best interest." Nothing

contained in this section shall be construed to impose an affirmative duty on the seller to conduct

inspections as to the condition of this real estate.

      (2) The disclosure form shall include the following information:

      (i) Seller Occupancy -- (Length of Occupancy)

      (ii) Year Built

      (iii) Basement -- (Seepage, Leaks, Cracks, etc. Defects)

      (iv) Sump Pump -- (Operational, Location, and Defects)

      (v) Roof (Layers, Age and Defects)

      (vi) Fireplaces -- (Number, Working and Maintenance, Defects)

      (vii) Chimney -- (Maintenance History, Defects)

      (viii) Woodburning Stove -- (Installation Date, Permit Received, Defects)

      (ix) Structural Conditions -- (Defects)

      (x) Insulation -- (Wall, Ceiling, Floor, UFFI)

      (xi) Termites or other Pests -- (Treatment Company)

      (xii) Radon -- (Test, Company) "Radon has been determined to exist in the State of

Rhode Island. Testing for the presence of radon in residential real estate prior to purchase is

advisable."

      (xiii) Electrical Service -- (Imp. & Repairs, Electrical Service, Amps, Defects)

      (xiv) Heating System -- (Type, Imp. & Repairs, Underground Tanks, Zones,

Supplemental Heating, Defects)

      (xv) Air Conditioning -- (Imp. & Repairs, Type, Defects)

      (xvi) Plumbing -- (Imp. & Repairs, Defects)

      (xvii) Sewage System -- (Assessment, Annual Fees, Type, Cesspool/Septic Location,

Last Pumped, Maintenance History, Defects)

     "Potential purchasers of real estate in the state of Rhode Island are hereby notified that

many properties in the state are still serviced by cesspools as defined in Rhode Island general law

chapter 23-19.15 (The Rhode Island Cesspool Phase-Out Act of 2007). Cesspools are a

substandard and inadequate means of sewage treatment and disposal, and cesspools often

contribute to groundwater and surface water contamination. Requirements for abandonment and

replacement of high-risk cesspools as established in Rhode Island general law Chapter 23-19.15

are primarily based upon a cesspool's non-treatment of wastewater and the inherent risks to public

health and the environment due to a cesspool's distance from a tidal water area, or a public

drinking water resource. Purchasers should consult Rhode Island general law chapter 23-19.15 for

specific cesspool abandonment or replacement requirements. An inspection of property served by

an on-site sewage system by a qualified professional is recommended prior to purchase. Pursuant

to Rhode Island general law section 5-20.8-13, potential purchasers shall be permitted a ten (10)

day period to conduct an inspection of a property's sewage system to determine if a cesspool

exists, and if so, whether it will be subject to the phase-out requirements as established in Rhode

Island general law chapter 23-19.15.

      (xviii) Water System -- (Imp. & Repairs, Type, Defects) Private water supply (well).

"The buyer understands that this property is, or will be served, by a private water supply (well)

which may be susceptible to contamination and potentially harmful to health. If a public water

supply is not available, the private water supply must be tested in accordance with regulations

established by the Rhode Island department of health pursuant to section 23-1-5.3. The seller of

that property is required to provide the buyer with a copy of any previous private water supply

(well) testing results in the seller's possession and notify the buyer of any known problems with

the private water supply (well)."

      (xix) Domestic Hot Water -- (Imp. & Repairs, Type, Defects, Capacity of Tank)

      (xx) Property Tax

      (xxi) Easements and Encroachments -- The seller of that real estate is required to provide

the buyer with a copy of any previous surveys of the real estate that are in the seller's possession

and notify the buyer of any known easements, encroachments, covenants or restrictions of the

seller's real estate. A buyer may wish to have a boundary or other survey independently

performed at his or her own expense.

      (xxii) Deed -- (Type, Number of Parcels)

      (xxiii) Zoning -- (Permitted use, Classification) "Buyers of real estate in the state of

Rhode Island are legally obligated to comply with all local real estate ordinances; including, but

not limited to, ordinances on the number of unrelated persons who may legally reside in a

dwelling, as well as ordinances on the number of dwelling units permitted under the local zoning

ordinances." If the subject property is located in a historic district, that fact must be disclosed to

the buyer, together with the notification that "property located in a historic district may be subject

to construction, expansion or renovation limitations. Contact the local building inspection official

for details."

      (xxiv) Restrictions -- (Plat or Other)

      (xxv) Building Permits

      (xxvi) Minimum Housing -- (Violations)

      (xxvii) Flood Plain -- (Flood Insurance)

      (xxviii) Wetlands -- The location of coastal wetlands, bay, fresh water wetlands, pond,

marsh, river bank or swamp, as those terms are defined in chapter 1 of title 2 and the associated

buffer areas may impact future property development. The seller must disclose to the buyer any

such determination on all or part of the land made by the department of environmental

management.

      (xxix) Multi-family or other Rental Property -- (Rental Income)

      (xxx) Pools & Equipment -- (Type, Defects)

      (xxxi) Lead Paint -- (Inspection) Every buyer of residential real estate built prior to 1978

is hereby notified that those properties may have lead exposures that may place young children at

risk of developing lead poisoning. Lead poisoning in young children may produce permanent

neurological damage, including learning disabilities, reduced IQ behavioral problems, and

impaired memory. The seller of that property is required to provide the buyer with a copy of any

lead inspection report in the seller's possession and notify the buyer of any known lead poisoning

problem. Environmental lead inspection is recommended prior to purchase.

      (xxxii) Fire

      (xxxiii) Hazardous Waste -- (Asbestos and Other Contaminants)

      (xxxiv) Miscellaneous

      (c) Any agreement to transfer real estate shall contain an acknowledgement that a

completed real estate disclosure form has been provided to the buyer by the seller in accordance

with the provisions of this section.

      (d) The Rhode Island real estate commission has the right to amend the seller disclosure

requirements by adding or deleting requirements when there is a determination that health, safety,

or legal needs require a change. Any change to requirements shall be a rule change, subject to the

Administrative Procedures Act, chapter 35 of title 42. The power of the commission to amend the

written disclosure requirements shall be liberally construed so as to allow additional information

to be provided as to the structural components, housing systems, and other property information

as required by this chapter.

 

     SECTION 3. Chapter 5-20.8 of the General Laws entitled "Real Estate Sales Disclosures"

is hereby amended by adding thereto the following section:

 

     5-20.8-13. Cesspool inspection requirement. (a) Every contract for the purchase and

sale of real estate which is or may be served by a private cesspool, shall provide that potential

purchasers be permitted a ten (10) day period, unless the parties mutually agree upon a different

period of time, to conduct an inspection of a property's on-site sewage system, before becoming

obligated under the contract to purchase, to determine if a cesspool exists, and if so, whether it

will be subject to the phase-out requirements as established in Rhode Island general law chapter

23-19.15.

     (b) Failure to include the provision required in subsection (a) in the purchase and sale

agreement for real estate does not create any defect in title.

     (c) Failure to provide the results of any previous inspection of a cesspool servicing the

property does not create any defect in title.

     (d) Failure to include the purchase and sale agreement provision required in subsection

(a) of this section or failure to provide previous inspection results of a cesspool servicing the

property entitles the purchaser to void the purchase and sale agreement by providing notice in

writing to the seller prior to the transfer of the title at closing.

 

     SECTION 4. This act shall take effect on June 1, 2008.

     

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LC00321/SUB B

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