Subsurface Wastewater Program Policies

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POLICY STATEMENT – 144 CMR 241

Maine Subsurface Wastewater Disposal Rules

Subsurface Wastewater Program

Policy Regarding Food Establishments Transferring Licensure from Department of Agriculture to Department of Human Services/Division of Health Engineering

Issue: There are two State agencies, The Department of Agriculture (DOA) and The Department of Human Services/Division of Health Engineering (DHS/DHE), which have the authority to license Food Establishments. The determination as to which agency licenses the establishment is based on the predominance of business. The DOA has jurisdiction of establishments whose business is 50 percent or more retail sales (grocery, pre-packaged goods, and bottled or canned drinks, including liquor), bakery, or other similar business. The DHS/DHE has jurisdiction of establishments such as restaurants, takeouts, bottle clubs and facilities with liquor consumption on premises and/or drinks served in open cups, and those establishments with less than 50 percent of more retail sales. DHS/DHE also licenses food establishments within convenience stores or service stations when the food establishment is under separate ownership or has a separate cash register that sets it apart as a separate entity. It is not uncommon for an food establishment with a DOA license to expand or change their business to move them from DOA’s jurisdiction to the DHS/DHE’s jurisdiction.

Analysis: The two agencies have different regulatory requirements for the licensing of food establishments. A food establishment applying to the DOA for a license is required to verify the subsurface wastewater disposal system and water quality initially, but is not required to update or expand the subsurface wastewater disposal system or regularly test the water. Therefore, these establishments expand or change the use over time without expanding or replacing the subsurface wastewater disposal system accordingly. The DHS/DHE requires subsurface wastewater disposal system and water approval prior to the issuance of the initial operating license and subsurface wastewater disposal system and water approval with any expansion or change of use.

This difference in licensing requirements becomes problematic and a potential financial burden for the establishment owner upon licensing change from DOA licensure to DHS/DHE licensure due to DHS/DHE’s more stringent subsurface wastewater disposal system and water requirements.

Policy: Therefore, the Wastewater and Plumbing Control Program recommends that a food establishment whose operating license originated with the DOA, and subsequently had expansion(s) or change(s) of use while having that license, be allowed to change over to a DHS/DHE operating license with less stringent requirements, provided that:

  • The existing subsurface wastewater disposal system is functioning and has no history of past malfunctions.
  • The establishment has been operating at its current status for at least two years prior to application to DHS/DHE.
  • The existing subsurface wastewater disposal system was installed in compliance with the Rules in effect at the time of system installation; has a reasonable capacity for the current operation; and has no history of system stress or failure.
  • The license application submitted to the DHS/DHE is for the same level of operation that existed on the last license issued by DOA. There is no expansion or change of use proposed.
  • The water supply well, if private, has received review and, if found to be a public water supply, approval from the Maine Drinking Water Program (MDWP). Well approval is also required if the water supply well is located less than 300 feet from any subsurface wastewater disposal system.
  • The food establishment’s annual license renewal will be contingent upon, although not limited to, continued satisfactory function of the subsurface wastewater disposal system and compliance with the MDWP requirements.

In the event that the food establishment does not meet the above criteria, full compliance with the DHS/DHE rules and regulations for obtaining an operating license will be required.

Russell Martin, Director
Wastewater and Plumbing Control Program
Division of Health Engineering