10-144-241 Me. Code R. § 3

Current through 2024-25, June 19, 2024

Section 144-241-3 - ADMINISTRATION

A.DISPOSAL SYSTEM PERMIT REQUIREMENTS

1. Payment of fees: A disposal system permit may not be issued until the fees prescribed in Section 4 have been paid.

2. Compliance with this rule: The disposal system permit is a license to proceed with work and must not be construed as authority to violate, cancel, or set aside any of the provisions of this rule, except as specifically stipulated by modification or legally granted variance, as described in the application for disposal system permit. See Section 14 Variances, in this rule.

3. Compliance with disposal system permit: All work must conform to the plans, as shown on the application for which a disposal system permit is issued. This compliance requirement includes any approved amendments thereto.

B.APPLICABILITY

1. General: The provisions of this rule covers all matters affecting or relating to subsurface wastewater disposal systems.

2. Matters not provided for: There may be subsurface wastewater disposal requirements essential for the sanitation and safety of the occupants thereof that are not specifically covered by this rule. Such requirements and any technological advances that may be used to address such requirements are determined by the Department, with the concurrence of the LPI.

3. Continuation of unlawful use: The continuation of occupancy or use of a structure with a system, or part thereof, contrary to the provisions of this rule, must be deemed a violation of this rule.

4. Referenced standards: Where differences occur between provisions of this rule and referenced standards, the provisions of this rule must apply.

5. Revocation by Department: Upon receipt of additional information including complaints, the Department may revoke or rescind any written decision it has made, if the decision was made in error. The Department will only take such action upon demonstration that such decision was based in part or whole upon inaccurate information or false representation(s); or upon determination that the Department failed to follow procedures otherwise required under provisions of this rule. The Department may also revoke any variance approval, upon failure of the owner/applicant to comply with all requirements of the approval.

C.VALIDITY

1. Partial invalidity: In the event any part or provision of this rule is invalidated, such invalidation does not impact any other part or provision of this rule. In all circumstances, this rule is presumed valid, unless ruled otherwise by an administrative officer or court of competent jurisdiction.

2. Existing systems: In the event any part or provision of this rule is invalidated which apply to existing systems, this invalidation will only affect presumption of applicability with respect to systems subsequently designed or installed systems.

D.EXISTING SYSTEMS

1. Continued Use: The continued use of any subsurface wastewater disposal system is allowed, provided all of the following conditions are met:

a. Wastewater Flow: The current wastewater flow is equal to, or less than, the design flow at the time of system installation and as allowed in Section 10; and

b. System Status: The system is not currently malfunctioning.

2. System Reuse: The reuse of a legally existing, currently unused subsurface wastewater disposal system, including connection to replacement structures, as defined in Section 9(A)(4), is allowed, provided all of the following conditions are met (for the purpose of this section, normal intermittent use of a wastewater disposal system for camps, second homes, seasonal facilities or other similar sporadic uses is not considered unused):

a. Wastewater Flow: The proposed reuse does not constitute an expansion as defined in Section 10(A)(3), which requires an expanded system be installed as required in Section 10(A)(4). The requirements of Section 10 are applicable for all proposed system reuses that exceed the existing system's design flow;

b. System Status: There are no records of unresolved malfunctions or on-site indications of the system malfunctioning in the past;

c. System Complete: The existing system is determined to be complete and likely functional by meeting one of the following criteria:

i. There is a valid, permitted HHE-200 Form which describes the subsurface wastewater disposal system; or

ii. Written verification is provided by a site evaluator that the existing system is complete and likely to function properly and an after-the-fact HHE-200 application is approved by the LPI to provide a record of the existing system; or

iii. Written verification is provided by a site evaluator that the existing system is complete and likely to function properly and a replacement system is designed and permitted using replacement system criteria, but not required to be installed until and unless the existing system malfunctions, subject to the following requirements for documentation and restrictions:

3. Documentation: The person seeking to reuse a subsurface wastewater disposal system not requiring installation of a permitted replacement system shall provide verification to the municipal officers that documentation is recorded in the appropriate registry of deeds that, in the event of a future malfunction of the existing subsurface wastewater disposal system, the disposal system can be replaced to comply with the rules adopted under Title 22 MRS § 42, and any municipal ordinances governing subsurface waste water disposal systems.

4. Recording designs: The person seeking to reuse a subsurface wastewater disposal system not requiring installation of a permitted replacement system shall record with the appropriate Registry of Deeds the form prescribed by the Department and the HHE-200 Form for the proposed replacement system. The person seeking system reuse not requiring installation of a permitted replacement system shall send copies of the notice by certified mail, return receipt requested, to all owners of abutting lots and to a public drinking water supplier if the lot with the system that is being proposed for reuse is within its source water protection area.

5. Restrictions: After the notice required by this section is recorded, no abutting landowner may install a well on that landowner's property in a location which would prevent the installation of the replacement septic system. The owner of the lot on which the replacement system will be installed may not erect any structure on the proposed site of the replacement system or conduct any other activity which would prevent the use of the designated site for the replacement system.

6. Malfunctioning Systems: Any system currently malfunctioning must be replaced, within that period of time required by the LPI's order, using the criteria for a replacement system, as described in Section 9, or repaired, as allowed in Section 3(F)(2).

E.REPAIRS AND MAINTENANCE

1. Disposal system permit not required: A disposal system permit is not required for minor repairs or replacements made, as needed, for the operation of pumps, siphons, aerobic treatment units, sand filters, or accessory equipment, the clearance of a stoppage in the building sewer which does not require excavation and/or exposure of system components or sealing of a leak in the septic tank, holding tank, pump tank, or building sewer.

2. Disposal area modification, repair or alteration: Excavations to modify, repair or alter a disposal area, other than the addition of fill, require a permit. If a permit is required, such modification, repair or alteration must meet all applicable sections of this rule and must be considered a disposal area for permitting purposes. The addition of fill without a permit must meet all requirements of this rule.

3. Maintenance: All new and existing systems must be maintained in a safe and sanitary condition. All service equipment, devices, and safeguards required by this rule, or that were required for a system by previous subsurface wastewater disposal codes, must be maintained in good working order when installed, altered, or repaired.

4. Property owner's responsibility: The property owner or property owner's agent is responsible for the safe and sanitary maintenance of the system at all times.

F.APPROVED MATERIALS AND EQUIPMENT

1. Approved materials and equipment: All materials, equipment, and devices approved for use by the Department must be made and installed in accordance with the conditions of approval.

2. Used materials and equipment: Used materials, equipment, and devices may be used, provided that they have been reconditioned, tested, and placed in good and proper working condition. Such use must be approved in advance by the LPI. Septic tanks in place and in good condition, and adequately sized may continue in use when a disposal field is replaced.

3. Alternative materials and equipment: The provisions of this rule are not intended to prevent the use of any material, equipment, or method not specifically prescribed by this rule, provided the use of any such alternative device has been approved in advance. The Department may approve any such alternative, provided the Department finds that the proposed material, equipment, or method is satisfactory and complies with the intent of the provisions of this rule. In addition, the applicant must show that the material, equipment, method, or work offered is for the purpose intended and at least the equivalent of that prescribed in this rule in quality, strength, effectiveness, durability, and safety. The Department will require sufficient technical data to be submitted to substantiate the proposed use of any material or method. If it is determined that the evidence submitted is satisfactory proof of performance for the use intended, its use may be approved, subject to the requirements of this rule. The costs of all tests, reports and investigations required under these provisions must be paid by the applicant. To assist in the determination, the Department may accept as supporting data any duly authenticated research reports concerning all materials or devices proposed for uses not specifically provided for in this rule.

G.ADVISORY OPINION

1. Written request: Upon written request on a form prescribed by the Department, the Department may render an advisory opinion, with respect to the interpretation and/or applicability of any subsurface wastewater disposal system related statute or related to a specific project or proposal.

2. Request address: A request for an advisory opinion must be addressed to the Associate Division Director of the Department's Maine Center for Disease Control and Prevention, Division of Environmental Health, 11 State House Station, Augusta, Maine 04333-0011.

3. Contents of request: The request for an advisory opinion must contain sufficient facts for the Department to issue an opinion. The Department may request additional information from the party requesting the opinion. Failure to provide such information is cause for the Department to refuse to issue an opinion.

4. Response time: An advisory opinion must be in writing and issued after all information necessary for the opinion has been received and reviewed by the Department.

5. Verbal opinions: Verbal opinions do not carry the weight of advisory opinions. They are the opinion of Department staff, without benefit of legal consultation. Verbal opinions may be reversed when presented to the Department as written requests for Advisory Opinions.

H. DEPARTMENT RESPONSIBILITIES

1. Administration of rules. The Department is responsible for ensuring the proper administration of the subsurface wastewater disposal rules and permitting processes by municipalities. The Department will assist municipalities in complying with this rule as requested.

2. Review. The Department will review the administration of subsurface wastewater disposal rules and laws in each municipality for compliance with this rule, pursuant to 30-A MRS §§ 3428 and 4212(2). This review will be made on a regular basis and may be made in response to a written complaint from any person as necessary. The Department will inspect the municipality's records and discuss the administration of the program with the LPI. The LPI must be available during the Department's review and cooperate in providing all necessary information. The Department will report the results of its review in writing to the municipality and, when applicable, to the complainant. The written notice must set forth the Department's findings of whether the municipality is in compliance with this rule and 30-A MRS §§3428 and 4212(2).

3. Department Notice. If, after review, the Department finds any violation of this rule or Title 30-A MRS §3428, it will notify the municipality that it must take enforcement action within 30 days and specify what action must occur, in order to achieve compliance. Upon receipt of the municipality's plan of action, the Department will review the plan and, within 60 days of accepting the plan, will conduct a review of the municipality's plan for compliance. The Department may enforce this Section in any court of competent jurisdiction. Every 30-day period that a municipality remains in violation after review and notification constitutes a separate offense.

I. MUNICIPAL RESPONSIBILITIES

1. Local jurisdictions have primary responsibility for enforcing rules adopted by the Department governing the installation and inspection of subsurface wastewater disposal systems. The adoption of rules by the Department does not deny municipal authority to adopt more restrictive ordinances. See 30-A MRSA § 4214.

2. Upon notice that a violation of this rule has occurred, wherein a malfunctioning subsurface wastewater disposal system has been identified, the municipality must serve an order to remedy this malfunctioning wastewater disposal system pursuant to Title 30-A MRS §3428. The order must be addressed to the owner of the premises and must contain:

a. The date;

b. The fact of the malfunctioning wastewater disposal unit;

c. A notice to remedy the nuisance within ten (10) days of service of the order; and

d. The signatures of municipal officers.

3. The municipal officers may allow the owner of the premises to request an extension of the 10-day period for no longer than an additional 20 days and may explain how to request an extension in the order. The municipal officers or their agents may approve an extension if it is reasonably necessary for and likely to result in remediation of the nuisance.

4. One of the municipal officers or a law enforcement officer shall serve the order personally upon the owner, tenant or occupant in possession. The server shall make and file a return of service indicating the method used and the person served.

5. If the nuisance is not abated within the 10-day period or such period up to, but not exceeding, the additional 20 days, as allowed by the municipal officers under Section 3, the municipal officers or their agents may enter the premises and have the malfunction adequately remedied. To recover any actual and direct expenses, including reasonable attorney's fees if the municipality is the prevailing party, incurred by the municipality in the abatement of such nuisances, the municipality shall:

a. File a civil action against the owner. The costs, including reasonable attorney fees, to create and prosecute an action to collect expenses following such a civil complaint, shall also be recovered from the owners; or

b. Assess a special tax against the land on which the wastewater disposal unit is located for the amount of the expenses. This amount shall be included in the next annual warrant to the tax collector of the municipality for collection in the same manner as other state, county and municipal taxes are collected. Interest as determined by the municipality pursuant to 36 MRS §505, in the year in which the special tax may be collected, shall accrue on all unpaid balances of any special tax, beginning on the 60th day after the day of commitment of the special tax to the collector. The interest shall be added to, and become part of, the tax.

6. If the municipality fails to comply with the requirements of 30-A MRS §3428, then it must take corrective action and specify to the Department what action is planned within 30 days of notice from the Department. Any municipality which fails to file an acceptable plan with the Department or which remains in violation at the expiration of the 60-day period is subject to a civil penalty of at least $500. The Department may enforce this Section in any court of competent jurisdiction. Every 30-day period that a municipality remains in violation after Department review and notification, constitutes a separate offense, pursuant to 30-A MRS §4212.

J.LPI RESPONSIBILITIES

1. General: The LPI shall enforce all the provisions of this rule and shall act on any question concerning the method or manner of construction and the materials to be used in the installation of a system, except as may be specifically provided for by other requirements of this rule.

2. Application for disposal system permits: The LPI shall receive applications for disposal system permits, issue permits for the installation of systems, inspect the premises for which such disposal system permits have been issued, and enforce compliance with the provisions of this rule, pursuant to Section 4(B)(1).

3. Notices and orders: The LPI shall issue all necessary notices or orders pertaining to removal of illegal or unsafe conditions, the requirement of necessary safeguards during construction, and compliance with all requirements of this rule for the safety, health, and general welfare of the public.

4. Inspections: The LPI shall make all the inspections required in this rule. The LPI may engage such expert opinions as may be deemed necessary to report upon unusual technical issues that may arise, subject to the approval of the municipal officers.

5. Credentials: The LPI shall carry proper credentials of the office while inspecting any and all systems and premises in the performance of his or her duties.

6. Annual report: At least annually, the LPI shall submit to the municipal officers of the jurisdiction a written statement of enforcement activities associated with this rule, in form and content as shall be prescribed by such authority.

7. The LPI may only delegate authority or responsibility for approving disposal system permit installation and changes to those individuals or organizations who are certified by the State of Maine as an LPI and authorized to perform LPI duties by the municipality.

10-144 C.M.R. ch. 241, § 3