Chandonnet v. Maine Dep't of Health and Human Services

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. DOCKET NO. AP-21 ...3 6

)
DENIS L. CHANDONNET, )
)
Petitioner, )
)
V. )
)
MAINE DEPARTMENT OF ) DECISION AND ORDER
HEALTH AND HUMAN SERVICES, )
)
Respondent, )
)
NILS AND PATRICIA PEARSON, )
)
Parties-in-Interest. )
)

Before the court is Petitioner Denis Chandonnet's appeal filed pursuant to Rule 80C
of the Maine Rules of Civil Procedure. He asserts that Respondent Maine Department of
Health and Human Services ("DHHS") erroneously approved an application to construct a
new septic system submitted by Parties-in-Interest Nils and Patricia Pearson. Specifically,
he asserts that (1) the Pearsons' disposal field is undersized in violation of DHHS rules;
(2) the Pearsons failed to comply with the minimum point score requirement for properties
within the Shoreland Zone, and; (3) the system violates stream setbacks without meeting
mandatory variance criteria.
FACTS
The Pearsons own a small undeveloped lot of land with frontage on Great East Lake
in Acton, Maine. R. 3, 172, 175. The lot is located within the Shoreland Zone, with a small
tributary stream that traverses the property and feeds into the lake. R. 3, 175. Chandonnet
owns property abutting the Pearson lot.
In November 2020, the Pearsons submitted an application to develop a septic system
on the lot. R. 172. The proposed septic system design incorporates a Singulair pretreatment
system-a technology that DHHS approved in 2018, along with the manufacturer's request

1
to allow Singulair users a 75% reduction in disposal field size. R. 174, 218. For their
disposal field, the Pearsons proposed a design using concrete chambers in lieu of a
traditional stone field disposal system. R.412-415.
Moreover, because the proposed septic system design contemplated departures from
certain DHHS rules, the Pearsons needed to obtain a variance from DHHS. So, pursuant to
the rules, the local plumbing inspector and the site evaluator completed a variance request
and application and submitted the paperwork to DHHS. R. 4. The Pearsons' application
package sought a variance to (1) reduce the stream setback from 50 feet down to 29 feet,
(2) reduce the property line setback from 10 feet down to 8 feet, and (3) "grade the fill at
2: l." R. 4, 172. The site evaluator and local plumbing inspector recommended that the
variance request be approved. R. 4.
On December 28, 2020, DHHS State Site Evaluator Brent Lawson approved the
application and variance request with certain conditions. R. 4, 177-78. Chandonnet then
filed an intra-agency appeal, and a hearing de novo was held before hearing officer Miranda
Benedict. R. 20, 38. Mr. Lawson testified on behalf of DHHS. After considering the
parties' written closing arguments, the hearing officer issued a decision affirming DHHS 's
approval of the Pearsons' application package. R. 1-20. This SOC appeal followed.

ST AND ARD OF REVIEW

The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag Mountain
Friends v. Bd. ofEnvtl. Prot., 2014 ME 116, , 12, 102 A.3d 1181 (quoting Friends of
Lincoln Lakes v. Bd. ofEnvtl. Prot., 2010 ME 18,, 12,989 A.2d 1128). The court is not
permitted to overturn an agency's decision "unless it: violates the Constitution or statutes;
exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or error of law; or is unsupported by
the evidence in the record." Kroger v. Dep't ofEnvtl. Prof., 2005 ME 50,, 7, 870 A.2d
566. "On questions involving the interpretation and application of technical statutes or
regulations, this court gives deference to the administrative agency unless the statutes or

2
regulations plainly compel a contrary result." Imagineering, Inc. v. Superintendent of
Ins., 593 A.2d 1050, 1053 (Me. 1991). The party seeking to vacate a state agency
decision has the burden of persuasion on appeal. Anderson v. Me. Pub. Emp. Ret. Sys.,
2009 ME 134, 13, 985 A.2d 501. Because the hearing officer acted as a fact-finder and
reviewed the substantive issues de novo, the court will review the hearing officer's
decision directly. Concerned Citizens to Save Roxbury v. Bd. ofEnvtl. Prot., 2011 ME
39, 117, 15 A.3d 1263; 10-144 C.M.R. 241 § VII(C)(l).

DISCUSSION

I. Whether the Pearsons' disposal field is undersized in violation of DHHS rules.

First, Chandonnet argues that the Pearsons' disposal field is undersized, and DHHS
permitted reductions to the disposal field size calculation that were not allowed under its
rules. At the administrative hearing, Mr. Lawson testified that had the Pearsons opted for
a traditional stone and pipe system, their disposal field would need an infiltration area of
594 square feet. R. 412. But with the technology and proprietary devices utilized by the
Pearsons, the disposal area could be reduced to 148.5 square feet. R. 412-14. Thus, Lawson
explained, the Pearsons' proposed disposal field-which was 180 square feet-exceeded
minimum requirements. R. 415.
The record reveals that the Pearsons' proposed design incorporates a relatively new
pretreatment system, the Singulair Model 960. Pursuant to Section 6(HH) of the rules,
DHHS Environmental Specialist James Jacobsen conducted a review of the Singulair
system. R. 218; 10-144 C.M.R. 241 § 6(HH). In 2018, Mr. Jacobsen approved the system
for use in Maine as he is authorized to do under Section 6(HH). Id. Moreover, Mr. Jacobsen
approved the manufacturer's request to allow a 75% reduction in the size of the disposal
field. R. 218.
Chandonnet challenges DHHS's decision to apply a 75 % reduction factor in
calculating the size of the Pearsons' disposal field. Chandonnet points to Table 4B of the
DHHS rules, which provides for various upward and downward adjustments to disposal
field size based on effluent strength. Specifically, Table 4B states:

3
TABLE4B
ADJUSTMENT FACTOR FOR WASTEWATER STRENGTHS
DIFFE RENT FROM TYPICAL DOMESTIC WASTEWATER
Strength of wastewater entering Adjustment factor (AF)
the disposal field (BODS plus TSS)
30 or less milligrams/liter 0.5
52 0.6
82 0.7
122 0.8
175 0.9
240 1.0
320 I. I
420 1.2
530 1.3
660 1.4
810 1.5
985 1.6
1180 1.7
1400 1.8
1645 1.9
2000 2.0

According to Chandonnet, Table 4B contemplates a maximum reduction factor of
50 %. Moreover, Chandonnet claims that the "DHHS Rules contain no mechanism for the
Department to issue individualized adjustment factors to disposal field sizing." The court
disagrees.
Relevant to this issue is Section 4(H)(3)(a), which states:
Values less than 240 mg/L: ... The constructed size of a proprietary device
disposal field may be reduced by use of the appropriate factor from Table
4B, provided a reduction is allowed by the manufacturer. If an adjustment
factor resulting in reduction in the disposal area ofmore than 50 percent is
utilized, the HHE-200 Form submitted for permitting must delineate a
disposal area without the use of any adjustment factor.

144 C.M.R. 241 § 4(H)(3)(a) (emphasis added). Thus, the rules themselves
contemplate that there may be situations where reductions will exceed 50%.
Moreover, as the hearing officer noted, the rules afford DHHS the flexibility to
adopt standards in light of new technology. 1 See id. § 2(C)(2) (recognizing that there "may

1
Chandonnet asse1ts that the hearing officer's findings and conclusions on the disposal
field size issue are insufficient. While the hearing officer could have been more specific, the record
reveals that she considered and rejected Chandonnet's argument and sufficiently described her
reason for doing so. In her written decision, the hearing officer referenced Chandonnet's argument

4
be subsurface wastewater disposal requirements essential for the sanitation and safety of
the occupants thereof that are not specifically covered by [the Department's] Rules. Such
requirements shall be determined by the Department, with the concurrence of the LPI"). In
fact, Section 6(HH) allows DHHS to review and approve new technologies using a
specified process. Id. § 6(HH). The Pearsons' reductions were based on proprietary devices
and technologies approved through Section 6(HH)'s comprehensive review procedures.
The court is not persuaded that Table 4B limits the reductions that may be achieved through
these methods.

II. Compliance with the minimum point score requirements.

Chandonnet's next argument centers on Section 7(C)(5), which describes a
minimum point value that must be met for sites within the Shoreland Zone. On appeal,
Chandonnet challenges the hearing officer's determination that the point system did not
apply to the Pearson application. The hearing officer reasoned that the minimum point
requirement applies only to sites with inadequate soil conditions; as the Pearsons' site met
the minimum soil standards, the point system was not implicated. R.13. Thus, the court
must decide whether the point system applies to all sites within the Shoreland Zone, as
Chandonnet argues, or only those sites that fail to meet minimum soil standards. Resolution
of this issue turns on the proper interpretation of DHHS 's rules.
When interpreting statutes and agency rules, the court "look[ s] first to the plain
meaning of the language used." Smith v. Cent. Me. Power Co., 2010 ME 9, ~ 18,988 A.2d
968. In doing so, the court will "construe that language to avoid absurd, illogical or
inconsistent results" and "consider the whole statutory [or regulatory] scheme of which the
section at issue forms a part so that a harmonious result ... may be achieved." Urrutia v.

regarding the allegedly undersized disposal field. R. 15. Moreover, it is evident why the hearing
officer was not persuaded: Chandonnet's argument overlooked DHHS's authority to rely on
technology to approve systems on sites that would otherwise be too small to accommodate a
traditional stone and pipe system. R. 16. Thus, the court finds that the administrative record is
sufficient to permit judicial review.

5
Interstate Brands Int'!, 2018 ME 24, 1 12, 179 A.3d 312 (quotation marks omitted).
Provisions are "not reviewed in isolation but in the context of the statutory and regulatory
scheme." Conservation Law Found. v. Dep 't ofEnvtl. Prat., 2003 ME 62, ~ 23, 823 A.2d
55. Moreover, "[a] plain language interpretation should not be confused with
a literal interpretation ...." Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ~ 20, 107 A.3d 621.
The court must "avoid an overly simplistic or overly broad interpretation" that undermines
the drafter's intent. Id. ~ 23.
If the court's analysis reveals that the language is unambiguous, the provision will
be plainly construed. Taylor v. PUC, 2016 ME 71, ~ 6, 138 A.3d 1214. If, however, the
court finds an ambiguity-Le., the provision is "reasonably susceptible of different
interpretations"-the court will "review the [agency's] construction of the ambiguous
[provision] for reasonableness." Id. (quotation marks omitted). "An agency's interpretation
of an ambiguous statute [or regulation] it administers is reviewed with great deference and
will be upheld unless the [provision] plainly compels a contrary result." Cent. Me. Power
Co. v. PUC, 2014 ME 56, ~,i 18-19, 90 A.3d 451 (quotation marks omitted).
The court's analysis begins with the language of Section 7(C)(5), which states:
"Minimum point value for sites within the shoreland zoned areas of major
waterbodies/courses: Any proposed first-time disposal system located within the Shoreland
Zone must score at least 65 points using Tables 7C through 7M to be considered acceptable
...." 10-144 C.M.R. 241 § 7(C)(5). Chandonnet's interpretation is appealing at first glance;
Section 7(C)(5) suggests that the 65-point requirement is applicable to "[a]ny proposed
first-time disposal system located within the Shore land Zone," which would seem to
include systems on sites in the Shoreland Zone that satisfy minimum soil standards. Id.
(emphasis added). But Section 7(C)(5) cannot be read in isolation. Conservation Law
Found., 2003 ME 62, ,i 23, 823 A.2d 55. When viewed in the context of the full regulatory
framework, the phrase is susceptible to a more restrictive construction-one that limits the
65-point requirement to Shoreland Zone sites that fail to meet minimum soil standards. In
re Guardianship ofPatricia S., 2019 ME 23, ,i,i 12-14, 202 A.3d 532 (finding the phrase

6
"[a]ny competent person" was ambiguous and susceptible to a more limited construction
"[w ]hen viewed in the context of the full statutory framework").
Several provisions in the rules give rise to this more restrictive interpretation. First,
Section 7(B)(3)(a) suggests that Tables 7C through 7M-which are integral to the point
system-are used to assess the suitability of sites that do not comply with minimum soil
conditions. 10-144 C.M.R. 241 § 7(B)(3)(a) ("For a site that does not comply with the
minimum soil conditions in Table 4F, the LPI or Department will use the criteria contained
in Tables 7C through 7M, to evaluate the potential for a variance ...."). Second, the tables
themselves appear to be aimed at sites that do not meet soil condition requirements. For
instance, the heading preceding Tables 7C-7M suggests that the tables are intended for the
assessment of soil suitability. The heading states: "Tables 7C-7M[,] Factors Used in
Assessing the Potential for a First-Time System for Soil Conditions Inside the Shore land
Zone." R. 121 (emphasis added) (capitalization omitted).
Additionally, Table 7D-which assigns points based on soil depths to groundwater
or other restrictive layers-supports DHHS' s interpretation. Pointing to Section 4(A)(3 )(b)
of the rules, Lawson explained that systems within the Shoreland Zone need "15 inches of
good suitable soil," meaning the system needed to be located on soil with a 15-inch
minimum depth to seasonal groundwater and bedrock. R. 398; 10-144 C.M.R. 241 §
4(A)(3 )(b ). As the Pearson site contained 30 inches of suitable soil, the site evaluator "did
not have to use this point system because [the Pearsons' site] met the rules of 15 inches."
R. 399. The manner by which Table 7D assigns points is consistent with the understanding
that the point system is not intended for sites with rule-compliant soils:

7
TABLE7D
SEASONAL GROUNDWATER OR RESTRICTIVE LAYER
Depth to seasonal
groundwater or restrictive Points
layer
14 inches 20
13 inches 15
12 inches 9
11 inches 6
10 inches 3
9 inches 0
Less than 9 inches Not Permitted

Indeed, Table 7D does not recogmze a category for sites with depths meeting and
exceeding the 15-inch minimum requirement, let alone award any additional points for
doing so. By contrast, sites that satisfy and exceed other minimum requirements, like the
minimum setback requirements, are entitled to extra points. See Table 7F & 7G; see also
Table 7B. One way to reasonably resolve this discrepancy is to interpret the tables as DHHS
did-that is, Table 7D and the other tables were never intended to apply to sites with
suitable soil. 2
In short, although Section 7(C)(5) applies the 65-point requirement to "[a]ny
proposed first-time disposal system located within the Shoreland Zone," the provision is
rendered ambiguous when considered in light of the entire regulatory scheme. The court
finds that DHHS reasonably resolved the conflicts in the regulatory framework and its
interpretation is entitled to deference.

2 DHHS 's position that the point system applies to sites with inadequate soil conditions

appears to be consistent with its historical interpretation and practice. See Hoxie et al., A Numerical
Classification System to Determine Overall Site Suitability for Subsurface Wastewater Disposal
(Oct. 1987), available at https://www.maine.gov/dhhs/mecdc/environmental­
health/plumb/documents/numerical-classification.rtf (explaining that the new system variance
"procedure assigns points to various site and system design characteristics and sets a minimum
passing score of 50 points, with 65 points required for propetiies in Shoreland Zoning areas, and
75 points for lots in proposed subdivisions. Properties not meeting the requirement of original
soil over limiting factor are judged by this system" (emphasis added)); see also 144 C.M.R. 241 §
16, pgs. 16.1-16.3 (revised through October 1, 1988) (see Table 16-1 - "for land that does not
comply with the minimum soil condition criteria").

8
III. Whether the Pearsons' septic system violates stream setback requirements
without meeting mandatory variance criteria.

Chandonnet' s final argument pertains to DHHS 's decision to approve a stream
setback variance. Pursuant to Table 7B of the rules, the minimum setback requirement
from the edge of the disposal system to a stream is 50 feet. R. 120. The Pearsons intend
to place their system within 29 feet of the stream and requested a variance accordingly.
Because the Pearsons' proposed system is situated within the Shoreland Zone, their
variance request also implicates Section 12 of the rules. Section 12 sets forth additional
requirements for Shoreland Zone sites, including maintaining a minimum setback of 75­
feet for all ground disturbances and clearing of vegetation. 10-144 C.M.R. 241 § 12(B).
The Pearsons' request did not explicitly seek a variance from Section 12's 75-foot
setback requirement. At the hearing, DHHS took the position that the Pearsons had
impliedly made a variance request to reduce the 75-foot setback and that DHHS had
impliedly granted a variance to do so. R. 386-388, 391-392; 404. This is Chandonnet's
first point of contention.
The court agrees with DHHS that a variance under Section 12 was implicit. As the
hearing officer observed, "it would be nonsensical for the Department to grant a variance
without adequate setback for soil disturbance." R. 12. A subsurface disposal system was at
issue, so approving the underground system necessarily authorized the ground disturbances
and clearing associated with installation. Additionally, Table 7B-which the Pearsons
explicitly referenced in their variance request-incorporates Section 12 by way of Footnote
e. See R. 120-21, 172.
Chandonnet further argues that the normal variance procedures do not apply to the
Section 12 setbacks, noting that the Section 12 setbacks are in place to assure compliance
with the Maine Natural Resources Protection Act ("NRPA"). The court, however, does not
see anything that precludes DHHS from permitting a variance from the setback
requirements of Section 12. Section 12(A) states:

9
No Further Permits Required: The filling, alteration of, or work adjacent to,
wetlands and waterbodies for activities associated with the installation of
subsurface wastewater disposal systems, is allowed provided it is done in
accordance with the requirements of these Rules pertaining to work adjacent
to, or within, wetlands and water bodies including the installation criteria in
Sections 12(B)(4) and 12(C). These Rules have been designed to assure that
no permitting is required for the installation of subsurface wastewater
disposal systems, unless DEP - NRP A or Shoreland Zoning, or LUPC
standards are exceeded ....

Special Note: DEP or LUPC permits are not required for the installation of
subsurface wastewater disposal systems designed and installed in accordance
with these Rules. Failure to meet setback, erosion control, vegetation
clearing, or soil disturbance standards may result in enforcement action by
the appropriate state or local agency with jurisdiction. Questions/issues
should be directed to and resolved by DEP, LUPC or municipal officials prior
to installation.

10-144 C.M.R. 241 § 12(A).
As the court reads it, Section 12 does not constrain DHHS from exercising its
variance authority. In fact, the "Special Note" paragraph appears to acknowledge the
potential that DHHS might permit a Section 12 variance. Nevertheless, that variance might
run afoul of another agency's rules. The provision serves as a word of caution that DHHS's
approval does not excuse the applicant from complying with the rules of other state and
local agencies. Indeed, DHHS is not responsible for policing compliance with another
agency's rules. Although Chandonnet urges the court to "require Pearson to obtain an
additional NRPA permit from [DEP]," that issue is beyond the scope of this appeal.

10
CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED, and the decision of DHHS approving
the Pearsons' application is AFFIRMED.

The clerk is directed to incorporate this Order into the docket of this case by notation
reference in accordance with M.R. Civ. P. 79(a).

....
DATED: May 9, 2022
-
Justice, Maine Superior Court

Entered on the docket 5 / q \
I
72~ <J ••

11
Date Filed: 09/16/21 Kennebec Docket No.AP-21-33
County

Action: BOC J. Stokes

Denis Chandonnet vs Maine DHHS

Plaintiff's Attorney Defendant's Attorney

Gordon R Smith, Esq Benjamin Ford, Esq. (PII)
One Portland Square 22 Free Street, Ste. 403
Portland, ME 04101-4054 Portland, ME 04101

Margaret Machaiek, AAG
6 State House Station
Augusta, Maine 04333

Date of Entry

09/17/21 Petition for Review of Final Agency Action, filed (09/16/21) s/Smith,Esq

10/01/21 Entry of Appearance filed on behalf of Parties in Interest, Nils and Patricia Pearson, filed
(09/30/21). s/Ford, Esq.

10/08/21 Entry of Appearance by AAG for Dept. of Health and Human Services. s/Machaiek, AAG .

10/21/21 Record, filed (10/18/21) s/Machaiek, AAG

10/21/21 Notice and Briefing Schedule Issued.
Notice sent to Parties/Counsel.

11/02/21 Amended Notice & Briefing Schedule issued
Notice to parties/counsel

12/13/21 Petitioner Brief, filed (11/29/21). s/Smith, Esq.

01/06/21 Respondent's Brief, filed ( 12/27/21). s/Machaiek, AAG

01/06/21 Party-In-Interest's BOC Brief, filed (12/29/21). s/Ford, Esq .

01/10/21 Petitioner's Reply Brief, filed. s/Smith, Esq.

01/10/21 Case under advisement with Justice Stokes

05/09/22 DECISION AND ORDER, Stokes, J.
The Petition for Judicial Review is DENIED and the decision of DHHS approving the
Pearsons' application is AFFIRMED
Copy to parties and repositories

05/09/22 Case closed

Page 1 AP-21-33