What is a Local Upgrade Approval?

Local Upgrade Approvals are variations of the Title 5 regulations that allow system owners to upgrade a nonconforming system to the maximum extent feasible (310 CMR 15.401-405 ). Local Upgrade Approvals are issued by the local Board of Health, or by MassDEP only for federal and state facilities, where MassDEP is the approving authority.

Can a Board of Health issue more than one Local Upgrade Approval for repair of a single system?

Generally yes. However, if one of the approvals is for a reduction in the separation to groundwater, other factors must be considered. Check with your Board of Health for clarification on your situation.

What is a variance?

A variance is required whenever Title 5 requirements are varied for situations not covered under Local Upgrade Approvals (310 CMR 15.410-420 ). Variances can be granted only when the applicant has demonstrated that their situation without a variance is manifestly unjust AND that granting the variance will not reduce the level of environmental protection below that offered by Title 5.

When do I need to get a variance approved by MassDEP?

Some variances to the code can be approved by the local Board of Health without MassDEP approval, under the Local Upgrade Approval provisions. Any variances other than those needed for Maximum Feasible Compliance must be approved by both the local Board of Health and MassDEP. Examples of variances needing MassDEP approval include the repair of a system in an area with less than 4 feet of naturally occurring soil, a setback of less than 50 feet from the property owner's well, or less than 4 feet of separation to groundwater. Check with your local Board of Health about whether a specific variance can be handled locally or must be approved by MassDEP once it has been approved locally.

If the Board of Health does not approve a variance, can I submit my variance request to MassDEP?

No. In order to be considered by MassDEP, a variance must first be approved by the local Board of Health. MassDEP is not an appeal agency for local decisions on septic systems. Local decisions may be appealed through the Superior Court of Massachusetts. MassDEP decisions may be appealed through an adjudicatory hearing.