Code of Maine Rules
10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES
144 - DEPARTMENT OF HEALTH AND HUMAN SERVICES - GENERAL
Chapter 241 - SUBSURFACE WASTEWATER DISPOSAL RULE
Section 144-241-14 - VARIANCES

Universal Citation: 10 ME Code Rules ยง 144-241-14

Current through 2024-38, September 18, 2024

A. FIRST-TIME SYSTEM VARIANCE REQUESTS

1. Requests for variance: Applicants requesting a first-time system variance must submit a completed application to the LPI first, in accordance with this subsection. The LPI will review and, upon approval, will sign the variance request.

2. Department review: The applicant or the LPI will submit the completed application to the Department. The completed application must be on a form prescribed by the Department, signed by the LPI and site evaluator, and include full payment of the appropriate application fee. The Department will automatically deny first-time system variances for depth to limiting factor less than nine (9) inches.

3. Modifications: When there are practical difficulties involved in carrying out the provisions of this rule, the Department may vary or modify such provisions, upon a variance request by the applicant. The Department has the discretion to grant variances for any provision in this rule, provided that the intent of this rule is observed, there is no clear prohibition to the requested variance in this rule (Section 2(D)) and the variance adequately protects public health, safety, and welfare. The variance request for modifications and the final decision the Department must be in writing and officially recorded with the variance application in the permanent records of the jurisdiction.

4. Contents of applications: An application for a first-time system variance must include the following:
a. Completed application for a disposal system permit: A completed application for a permit to install a system or part of a system consists of complete plans and specifications for the proposed system, and other pertinent information, as required, on the HHE-200 and HHE-204 forms;

b. Requirements that cannot be met: The application must indicate the section(s) and/or provision(s) of the rule for which a variance is being requested;

c. Basis for variance request: The reason(s) why the condition(s) set forth in the rule cannot be met, as well as justification for the variance request. Justification must include an explanation for why the variance will not impact wastewater treatment, including how additional measures may be used to offset reductions to conditions required by the rule;

d. No conflict with local ordinances: For variances that fall under this Section, the applicant must provide statement(s) that the completed application has been reviewed and signed by the LPI and site evaluator(s) on the HHE-204 form, indicating that the application is complete and does not conflict with local ordinances;

e. Additional engineering or measures: If pretreatment or additional measures are being proposed, the application must show how the proposed system and measures meet applicable sections of this rule, including the pretreatment requirements found in Section 5(H)(5); and

f. Requests for variances to any requirements within this rule may be submitted to the Department. Such a variance request includes but is not limited to any applicable footnote pertaining to any tables within this rule.

g. Site location map sufficient to locate the property.

h. Owner's signature affixed to the application, to demonstrate owner's acknowledgment that this variance request is a result of the current design failing to comply with this rule.

i. Other information: The Department may request additional information from the applicant for a first-time system variance request. If the applicant fails to provide additional information requested by the Department within 60 days of the request or another reasonable period specified by the Department, then the Department will then deny the variance request, due to an incomplete application.

B. REVIEW OF FIRST-TIME SYSTEM REQUESTS FOR SOIL CONDITIONS AND SETBACKS

1. This Section describes the review process at the municipality and Department levels. The municipality reviews First-Time System Variance requests and makes a final disposition for soil conditions through the LPI. All decisions regarding these First-Time System Variances for soil conditions are made at the local level, with no requirement for Department review, except when a municipality requests in writing, that the Department make a final decision. Upon notification of the municipality request, the Department will review this First-Time System Variance request and make the final decision.
a. Soil conditions: For a site that does not comply with the minimum soil conditions in Table 5F, the LPI will use the criteria contained in Tables 14A through 14K, to evaluate the potential for a variance, except that sites with less than nine inches over hydraulically restrictive horizon, seasonal water table, or bedrock, will not be considered and automatically denied.

b. Setbacks: For any site that does not comply with the applicable minimum first-time system setback distance in Table 8B, the municipality must refer the variance request to the Department, in accordance with Section 9(B).

2. The Department may approve, deny, or approve with conditions any variance request that was referred. Any Department decisions regarding variance requests will be in writing and either specify the conditions of any approval or the reasons for denial. The conditions may include deed covenants, inspections and mandatory installation of a holding tank, upon any future system failure.

3. LPI Action Following Department Decision: The Department's approval of any variance request authorizes the LPI to issue a permit for the subject system design. If the Department denies the variance request, then the LPI is prohibited from issuing a permit for the subject system design.

C. ADDITIONAL CRITERIA USED FOR APPROVAL OF FIRST-TIME VARIANCES

In addition to the criteria outlined in Section 14(A)(2) above, the Department or LPI will consider the following additional factors, when deciding whether to grant a First-Time Variance:

1. Whether there exists any potential for malfunctions, well contamination, groundwater contamination or adverse impacts to waterbodies/courses associated with the proposed installation.
a. In determining whether there is any potential for malfunctions, well or groundwater contamination, or other adverse impact to waterbodies/course, the Department will review Tables 14A through 14K. If, during this review, the Department finds that the variance request scenario aligns with the phrase "not permitted" in any of these Tables, then the Department will deny the First-Time System Variance request.

b. The Department will not approve any applications that reveal slopes under the disposal area that decline greater than 33% located outside the Shoreland Zone, in order to ensure protection against any unreasonable threats to groundwater quality, drinking water wells, water bodies/courses and public health.

2. Scores the Minimum Point Value. The Department will consult Tables 14A through 14K, to determine the point value for any sites within the shoreland zoned areas of major waterbodies/courses that do not meet minimum soil conditions as required by this rule. If any proposed first-time disposal system located within the Shoreland Zone does not meet minimum soil conditions as required by this rule and also fails to score at least 65 points using Tables 14A through 14K (or a higher minimum score required by local ordinance), then the Department will deny the variance request. Such denial ensures protection against any unreasonable threats to groundwater quality, drinking water wells, water bodies/courses or public health.

3. Demonstration of Owner's understanding: The owner must affix his or her signature to the application for a variance request, to demonstrate their understanding that the proposed system fails to comply with the rule and requires a variance to be approved. The owner(s) signature also signifies that:
a. The property owner is aware of the proposed variance, its limitations and costs; and

b. If applicable, the property owner is aware that additional engineering has been proposed to overcome limitations of the existing soils, such as increased separation distance for limiting factor, increased design flow, curtain drain, etc.

4. The Department may require a deed covenant as a condition for any variance, where a property scored the requisite number of points from Tables 14 14A through 14K of this rule. The deed covenant must stipulate that the subject property cannot be subdivided without prior approval from the LPI or the Department.

5. For any lot containing disposal systems previously approved by the municipality or DEP in a subdivision, the Department will only approve a variance request that provides equal or better treatment of the wastewater than the previously approved system.

D. REPLACEMENT SYSTEM VARIANCE REQUESTS

1. Conditions applicable to all replacement system variance requests: The following conditions apply to all replacement system variance requests, regardless of whether final disposition is with the LPI or the Department:
a. Completed application for a disposal system permit: A completed application for a permit to install a system or part of a system must be submitted to the LPI. It must include complete plans and specifications for the proposed system and other pertinent information, as required on the HHE-200 or HHE-233 (holding tank) forms.

b. Requirement which cannot be met: The application must indicate the section(s) and/or provision(s) of the rule for which a variance is being requested and must provide a clear demonstration that a proposed replacement system could not be installed in full conformance with first-time system requirements of this rule, including but not limited to, setbacks and soil conditions. Requests for a variance may pertain to requirements within the footnotes of tables within this rule. This demonstration may be in the form of a narrative addendum to the HHE-200 Form.

c. Basis for a variance request: The application must include a description of the reason(s) why the applicant is unable to meet the requirement(s) within a narrative addendum that pertains to Section 14(D)(1)(b) above.

d. Application Review Fee: Payment of the replacement system application review fee, as indicated in Table 4A, must be submitted to the LPI.

e. Minimum reduction necessary: The variance request is for the minimum reduction necessary to any requirement of the rule to accomplish the replacement system installation.

f. No conflict with local ordinances: The request for a replacement system variance does not conflict with any local ordinance(s) or other rule(s) or statute(s).

g. Meets definitions of replacement system: The replacement system variance request is to replace an existing system that meets the definition of System, Replacement in Section 1(B)(197).

h. Additional engineering or measures: If pretreatment or other additional measures are being proposed, the application must show how the proposed system and measures meet applicable sections of this rule, including Section 5(H).

2. Replacement System for Overboard Discharge Systems: Replacement of an overboard discharge licensed by the Maine Department of Environmental Protection must conform to provisions of 38 MRS §411-A, which may require removal of the overboard discharge at the time of transfer or renewal.

E. LPI's AUTHORITY

1. Replacement System Variance Requests may be decided by the LPI, without Department review, if all of the following conditions are met:
a. Standard conditions: All of the conditions of Section 9(B) are met;

b. Minimum soil conditions: Reductions in minimum soil conditions are no greater than allowed in Table 5F;

c. Fill extension slope: The fill extension slope is no greater than 3:1 or 33%; and

d. Wastewater strength: The BOD5 plus suspended solids content of the wastewater is no greater than that of normal domestic effluent.

F. SCOPE OF DEPARTMENT REVIEW FOR A REPLACEMENT SYSTEM VARIANCE

1. General: The Department may approve, deny, or approve a variance request with conditions. All Department decisions regarding variance requests will be communicated in writing and state either the specifications and conditions of any approval or the reasons for denial. The conditions may include deed covenants, inspections and mandatory installation of a holding tank, if the system fails in the future.

2. LPI Action After Department Decision: The LPI is authorized to issue a permit for the subject system design, following Department's written approval of the variance request. If the Department denies the variance request, then the LPI is prohibited from issuing a permit for the subject system design.

3. Replacement System Variance Requests which are beyond the LPI's authority in Section 14(E), must be submitted to the Department for review and disposition. These replacement system variance requests must comply with Section 9(B) and include a completed application, including but not limited to the HHE-204 or HHE-233 form, and the LPI's signature, demonstrating the LPI's review and approval.

G. TIME LIMIT

Any disposal system variance issued after the effective date of this rule will become invalid, if the system has not been installed in compliance with any conditions established with the variance within two years after issuance of the disposal system variance, except that any malfunction must be replaced at the earliest opportunity.

H. DEPARTMENT VARIANCE REVIEWS

1. The Department will review all variance applications referred and submitted by the LPI within 30 days of receipt. In the event that additional time is required, the Department will promptly notify the applicant and LPI of this additional time need.

2. All variance requests must demonstrate to the satisfaction of the Department that there are no alternative locations that could reasonably meet first time criteria. Meeting first time criteria for any system, including replacement systems, is the primary goal of the site evaluator.

3. Variance requests for replacement systems that cannot meet first time criteria must also demonstrate to the satisfaction of the Department that the replacement criteria found in Section 9 of this rule cannot be reasonably met or exceeded.

4. Variance requests must demonstrate to the satisfaction of the Department that the variance(s) requested are the minimum possible that can reasonably be implemented on the subject property.

5. The Department will utilize information regarding local surficial geology, the type, location and construction of drinking water wells in the vicinity of the proposed disposal system location, the proximity of sensitive natural resources and any other information required to evaluate the potential impacts which may result, should the variance be approved.

6. The Department may require additional information be provided by the applicant, when that information is not readily available through State agency records. For example, the submittal of well construction plans and specifications as part of the application information may be required, if this information is not available at the Maine Geological Survey.

7. The Department may require design alterations or the inclusion of advanced treatment or advanced tertiary treatment, when it determines that additional effluent treatment is required to provide adequate protection of public health and the environment.

8. The Department will only approve variance requests that demonstrate to the satisfaction of the Department that there are no reasonable alternatives to the variance, the risk/design has been minimized to the greatest possible extent practical by the site evaluator, and the design will be adequately protective of public health and the environment.

I. DEPARTMENT REVIEWS OF VARIANCE REQUESTS:

1. For the purpose of this rule, marginal or failing sites must include locations with proposed systems that require a Department variance to first time criteria and:
a. Cannot meet the minimum depth to limiting factor(s) requirements for "Condition E" in Table 5E; or

b. Cannot meet the design requirements found in Table 5F in the rules except those for "Soil Profile 10" and "Condition A1" in Table 5E; or

c. Cannot meet applicable setbacks to drinking water wells as required in this rule; or

d. Cannot meet applicable setbacks to protected natural resources as required by this rule; or

e. Cannot meet applicable setbacks to property lines from disposal areas, as required by this rule; or

f. Cannot meet applicable slope requirements, as required by this rule.

2. For review of variance requests, the Department requires a complete application from the LPI that includes all of the following elements:
a. A completed and signed HHE-200;

b. A completed and signed HHE-204;

c. Written confirmation from the LPI that all applicable local and state Shoreland Zoning requirements are met;

d. A statement from the site evaluator verifying that the proposed design and system location is required by site conditions and that no more compliant location with reduced variance requirements can be reasonably identified and developed; and

e. A description from the site evaluator of the site limitations and the design elements included to overcome those limitations.

3. Approval of variances for marginal or failing sites requires:
a. Department verification that no reasonable alternative exists; and

b. For variance requests relating to system discharges (i.e. the location of disposal field):
i. An advanced treatment system approved by the Department is included in the design; and

ii. No system components are located within the Shoreland Zone disturbance free buffer as described in Section 13 of this Rule; and

iii. No disturbance during construction of the Shoreland Zone disturbance free buffer as described in Section 13 of this Rule is proposed or required: and

iv. The Department, after evaluating the proposed design, determines that no unreasonable risks to public health or the environment shall result.

Note: Minimum permitting conditions of "Not Allowed" in Table 5F for Soil Profile 10 as described in Table 5D and for "Soil Condition A1" as described in Table 5E continue to be not allowed. Variances for these conditions will not be considered.

c. For system discharges (i.e. the location of disposal field) proposed within the required Shoreland Zone protective buffer of 100 feet from Major Water Bodies/Courses or 50 feet for Minor Water Bodies/Courses:
i. Advanced tertiary treatment is included in the design, and

ii. A maintenance contract between the property owner and the system provider that ensures the advanced tertiary treatment system is inspected and serviced, as recommended by the manufacturer is included with the application; and

iii. A copy of the manufacturers recommendations for maintenance and inspections is provided to the Department with the application; and

iv. No system components are located within the Shoreland Zone disturbance free buffer as described in Section 13 of this rule; and

v. No disturbance of soil or vegetation in the Shoreland Zone disturbance free buffer as described in Section 13 of this rule is proposed or required: and

vi. The Department, after evaluating the proposed design, determines that there are no unreasonable risks to public health or the environment.

Note: For proposed systems that require Advanced Tertiary Treatment located in the Shoreland Zone or Wellhead Protection Area of the source of a public water supply the Department may require submittal of evidence that all required maintenance and inspections as recommended by the manufacturer have been completed and confirmation from the servicing technician/company that the system is functioning properly.

4. It is incumbent upon the site evaluator to demonstrate to the satisfaction of the Department that native soils can:
a. Handle the hydraulic load anticipated; and

b. When advanced treatment systems are utilized (not advanced tertiary treatment systems), the native soils can provide any necessary treatment required to ensure proper functioning of the system and protect public health and the environment.

5. A lack of information required for the Department to make an informed decision may result in denial of the variance application. The Department must have the information required to evaluate the surficial geologic and hydrologic conditions on the subject property. If the required information is not available within existing State agency resources, then the applicant must provide it to the Department at their expense. Providing data and information in no way guarantees Department approval.

6. More stringent local requirements than this rule will always prevail.

7. In no instances will the Department approve a variance for a marginal or failing site for a system that requires disturbing the Shoreland Zoning disturbance free buffer required by State or local Shoreland Zoning ordinances. The Department will not approve any variances that further encroach or disturb existing disposal system components located inside the disturbance free buffer.

8. A variance granted by the Department in no way compels local approval. The LPI makes the final determination.

9. The lot must comply with the Maine Minimum Lot Size Law and relevant regulations, see Minimum Lot Size Rules (10-144 CMR Ch. 243) and 12 MRS §4807.

10. The Department may consult with other state agencies, public water systems, municipal officials and other entities that may help the Department make appropriate and informed determinations.

TABLES 14A - 14K

FACTORS USED IN ASSESSING THE POTENTIAL FOR A FIRST-TIME SYSTEM THAT DOES NOT MEET MINIMUM SOIL CONDITIONS INSIDE THE SHORELAND ZONE

TABLE 14A SOILS

Soil Profile from Table 4D

Points

Profiles 2, 3, & 7

15

Profiles 1, 8, & 9

10

Profile 4

7

Profiles 5, 6, & 11

5

Profile 10

Not permitted

AI & AII bedrock classes

Not permitted

TABLE 14B

SEASONAL GROUNDWATER OR RESTRICTIVE LAYER

Depth to seasonal groundwater or restrictive layer

Points

14 inches

20

13 inches

15

12 inches

9

11 inches

6

10 inches

3

9 inches

0

Less than 9 inches

Not Permitted

TABLE 14C

TERRAIN

Position in the Landscape

Points

Knoll Upland (no watershed)

5

Side slope

3

Lowland

minus 5

Depression

Not permitted

TABLE 14D

SIZE OF PROPERTY AND DISPOSAL AREA SETBACK FROM DOWN GRADIENT PROPERTY LINE

Total acreage

Points Setback [LESS THAN]50 Feet

Points Setback 50 - [LESS THAN]100 Feet

Points Setback 100 - [LESS THAN] 200 Feet

Points Setback 200 Feet or More

More than 10 acres

5

10

15

20

6 - 10 acres

4

7

11

15

5 " 6 acres

3

5

8

10

4 - 5 acres

2

4

6

8

3 - 4 acres

1

3

4

4

2 - 3 acres

1

2

3

3

1 - 2 acres

0

1

2

NA

1/2 - 1 acre

minus 10

NA

NA

N/A

Less than 20,000 ft2

Not permitted

Not permitted

Not permitted

Not permitted

TABLE 14E

MAJOR WATER BODY SETBACK

Setback distance from disposal area to major water bodies

Points

Greater than 250 feet

5

Between 150 - 250 feet

3

Between 100 - 149 feet

0

Less than 100 feet

Not permitted

TABLE 14F

WATER SUPPLY & ZONING

Type

Points

Public water system

5

Private drilled well

3

Other private supply

0

Zoned for resource protection

Not permitted

TABLE 14G

TYPE OF DEVELOPMENT

Type

Points

Commercial less than 100 gpd

5

Commercial 100 - 300 gpd

3

Single-family residential

0

Commercial 301 - 750 gpd

minus 5

Commercial greater than 750 gpd

minus 10

TABLE 14H

DISPOSAL AREA ADJUSTMENT

Increase in minimum disposal area as determined from Section 5

Points

Minimum disposal area plus 66 percent

10

Minimum disposal area plus 33 percent

5

Minimum disposal area

0

TABLE 14I

VERTICAL SEPARATION DISTANCE ADJUSTMENT

Increase in minimum vertical separation distances between bottom of the disposal field and limiting soil horizon as determined from Table 5F

Points

* Minimum separation distance plus 12 inches

10

* Minimum separation distance plus 6 inches

5

Minimum separation distance

0

* Minimum separation distance based upon Table 5F (First-time systems)

TABLE 14J

ADDITIONAL TREATMENT

Type of treatment

Points

Curtain drains for Profiles 1, 3, 7 & 8

5

Liner (See Section 5(Q)(16) for Profiles 5, 6 & 11 (if 11 is sandy)

3

Septic tank outlet filter

3

TABLE 14K

USE OF ADVANCED TREATMENT DEVICES OR SYSTEMS

Strength of effluent (BOD5 plus TSS)

Points

150 to 101 mg/l

5

100 to 51 mg/l

10

50 to 11 mg/l

15

10 mg/l or less

20

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