In recent years, there has been increased interest expressed in home and green burials in Massachusetts. A home burial, means burying a person on privately owned residential property that is not an approved cemetery. Home burials are not prohibited by state law, but the decedent’s family must first obtain written approval from the local BOH and the local governing body. A home burial is only possible if the property is under the control of the decedent’s family. Finally, those who do a home burial will need to note the burial on the deed for that property where the body is buried before the property can be transferred, as a home burial is likely to be viewed as a encumbrance on the land.
A home burial can also be a green burial. A “green” burial or natural burial is a method of final disposition of a body with fewer environmental impacts than traditional burial. Generally, a green burial means that the body is not embalmed, no metal or hard wood are used to make the casket, no gravel liner or vault are used, and a low profile grave marker is used or no marker at all.
The potential for bacteria, viruses, and other microorganisms from human remains to reach groundwater and infect other people appears to be the greatest source of public health concern associated with green burials. Research indicates though microorganisms can remain viable and transportable for many years following a burial, they are eventually attenuated by soils and lose viability. However, the fact that these organisms can remain viable for some time highlights the importance of siting burials in hydrogeologically appropriate areas.
Current State Burial Requirements
Massachusetts General Law (MGL) Chapter 114, Section 35 states unless the property was approved for burial prior to 1908, that land that is situated so that surface water or ground drainage enters a pond, stream, well, filter gallery, public water supply, or tributary source cannot be used for burial purposes unless MassDEP has given written approval to the plan.
MGL Chapter 258, Massachusetts Rivers Protection Act and 310 CMR 10.58 limits the allowed activities within 200 feet of rivers, which would apply to the siting and use of burial plots.
Massachusetts Drinking Water Regulations 310 CMR 22.21: Burial plots should be prohibited from Zone Is of all Public Water Supplies (PWS).
Massachusetts Drinking Water Regulations 310 CMR 22.20B requires that that burials be excluded 100 feet of the high water mark of a public water source or tributary, unless allowed in writing by the affected PWS
Massachusetts Drinking Water Regulations 310 CMR 22.21(2)(b)(6) prohibits the removal of overburden soils within 4 ft of the historical high groundwater table elevation, unless the soils are re-deposited within 45 days of its removal to achieve a grading greater than the 4 ft above the historical high water mark.
What should a Local BOH consider when reviewing a green burial?
Massachusetts Department of Environmental Protection MassDEP recommends that local BOHs consider developing guidance information and an approval process for these types of burials. Several towns in MA are already permitting green burials. Local BOHs should consider include the following in their local guidance/approval process.
- Evaluation of local bylaws and regulations. There may be more restrictive conditions on burials in other local bylaws or regulations besides Board of Health regulations. For example, many towns have water supply protections bylaws or regulations (see 310 CMR 22.20C) which prohibit new human cemeteries, mausoleums, pet cemeteries within Zone A (400 ft. from a public drinking water reservoir, 200 ft. from tributaries). The cemetery proponent should also have the proposed location reviewed by the local Conservation Commission so that the setbacks from surface waters required by the Wetlands Protection Act are met.
- Inclusion of state burial requirements.
- Site Plan submission. Requiring a site plan that indicates the burial plot in relation to the property boundaries. Setback distances to all wetlands, ponds, rivers, streams, runoff, and private and public wells in the immediate areas should also be shown on the site plan.
- Geological evaluation. A geologic evaluation should be done within the burial plot dimensions to determine:Additional criteria that should be considered:
- the estimated seasonal high groundwater level (ESHWT)
- soil profile description to a depth of 4 feet
- soil variability
- depth to bedrock
It is recommended that a Certified Soil Evaluator be used in order to ensure consistency in making site determination. The body should be covered by at least 3 feet of soil. The bottom of the burial excavation should maintain at least 3ft separation distance of naturally occurring soil above the ESHWT.
- The plot should not be within a FEMA Velocity Zone or 100 or 500 year flood zone, to ensure that the body is not be flooded on a regular basis.
- The slope should not exceed 3:1. A variance may be granted provided a satisfactory slope stabilization method is implemented. This would assure that the body will not become exposed by erosion of the slope.
- Consideration for serious pathogenic disease. Additional consideration should be taken with the remains of individuals that were known to have been killed by a serious pathogenic disease, including highly infectious bacterial and viral diseases and diseases transmitted by prions. Green burial of these infectious cases should not be allowed pending a decision of the local BOH.
- Setback requirements. The MassDEP Office of Research and Standards recommends the following setbacks between green burial sites and private wells.
Setback Distance (ft) Recommendations for Green Burial Sites from Private Wells Type of Facility Setback Distance (ft) One Grave 300 Family Burial Plot 300 Natural Green Burial Areas with Burial Density > 50 burials per acre 750 Hybrid Green Burial Areas which are part of a conventional cemetery 750
These setback distances are intended to apply to a wide range of hydrogeological conditions in Massachusetts. The BOH could allow for a variance from these setbacks, if a detailed hydrogeological study is conducted that demonstrates that the burial site does not pose a threat to the drinking water source.
- Number of burials per burial plot: The guidance should define the minimum and maximum number of individual burials that will be allowed in the burial plot. A more detailed hydrogeological study and a long term monitoring plan should be considered for sites which are proposed to accept a large number of green burials.
- Variance Provisions. Due to the fact that extenuating circumstances relating to the death(s) may necessitate deviating from the local approval procedure at times, the guidelines should allow for the granting of variances (or waivers) from the approval process. The situations that could justify a variance should be outlined in the variance section.
A local variance should be granted only if all the state siting requirements are still being met.
What steps are recommended to incorporate both State and Local review?
When the Board has received the necessary information, the approval process should be as follows:
- The board will review the submission and make a determination.
- If approved, the owner will file a copy of the site plan as an addendum to the deed for the property and have it recorded at the Registry of Deeds.
- The Board of Health will provide written permission to establish the family burial plot.
- Once the local Board of Health has approved the burial site, the request should be forwarded to the appropriate regional DEP office for review and approval in accordance with MGL Chapter 114, Section 35, even if the proposal appears to meet all the state siting requirements.