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STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Appeal of } Stuart L. Richards } Docket No. 236-12-99 Vtec } }

Decision and Order

Appellant appealed from a decision of the Zoning Bo ard of Adjustment (ZBA) of the Town of Norwich, granting a permit to Paul Nowicki for the construction of a single-family residence at 84 Elm Street. Appellant is represent ed by John D. Hansen, Esq.; AppelleeApplicant Paul Nowicki is represented by Laura O = Connor, Esq. and John C. Candon, Esq.; the Town of Norwich is represented by its Zoning Ad ministrator, Phil Dechert, who is not an attorney. Sixteen neighbors have entered their app earance individually as interested parties in opposition to the grant of the permit. We determined on summary judgment that Parcel 2 may be developed as a separate residential lot from Parcel 1. The remain ing question in this appeal was whether the sewage system designed and permitted for Parcel 2 will violate the performance standards of the Norwich Zoning Regulations regardi ng A objectionable odor. @ An evidentiary hearing was held on that issue before M erideth Wright, Environmental Judge, who also took a site visit alone, by agreement of t he parties. The parties were given the opportunity to submit written requests for findings and memoranda of law, and made arguments on the record at the close of the hearing . Upon consideration of the evidence, the site visit, and the proposed findings and argum ents, the Court finds and concludes as

follows. Appellee-Applicant seeks to develop so-called Parce l 2, consisting of approximately 24,000 square feet, with a two-bedroom house, a gar age, and an innovative on-site sewage disposal system. The parcel of land slopes steeply down from the road and driveway down towards Blood Brook, an elevation dif ference of eighteen feet, and slopes more gently down towards Appellant = s property. The driveway leads to Appellant = s house;2

Appellant = s land lies to the north and west of Appellee-Appli cant = s land and is also bounded by Blood Brook.

The house has been constructed on a slab on a terra ce midway down the slope of Parcel 2. A stone wall and steps form the downhill edge of the terrace, a portion of which was filled above the native soil. The uphill edge of the terrace was excavated several feet into the existing hillside, the concrete foundation of the building was constructed on the slab, and the hillside was backfilled against the u phill side of the house foundation. Because of the steeply sloping topography, the limi ted size of the parcel, and the fact that the portion by the brook is subject to in undation, Appellee-Applicant has installed

an A Eljen In-Drain @ sewage disposal system on the upper portion of the property, higher in elevation than the house, and near the driveway ser ving Appellant = s property. This system has been approved. At the time of trial, the parti es were litigating that approval in another forum; nevertheless, its approval is not at issue i n the present appeal. The sole question in the present appeal is whether this system will viol ate the performance standards of ' 6.1 of the Norwich Zoning Regulations, which require that A there shall be no objectionable odors, @

defined in ' 5.24 as A odors which because of persistence or character wou ld be considered offensive in a particular location by a reasonable person. @ Odors do not escape from a household septic tank or sewage disposal system if the septage remains within the system or underground wh ile it is undergoing treatment. Odors can escape from or be generated within a failed hou sehold sewage disposal system, if the system becomes clogged or inundated so that septage reaches the surface of the ground before it has been adequately treated. The sewage disposal system proposed for Appellee-Ap plicant = s parcel consists of a conventional septic tank, a pump station to pump th e septage up to the Eljen In-Drain system, and the Eljen system itself, installed over a 6" layer of sand over the existing soil. We consider each component of the system in turn. The most offensive odor in a household sewage syste m is found in the septic tank, where the solids in the sewage accumulate. In the septic tank, 95% or more of the solids in household sewage will settle out. The tank will need to be pumped out approximately every two years, a procedure which exposes the pote ntial for odors in the neighborhood during an approximately 15 minute period that the t ank is open. That type, duration and3

frequency of odor from septic tank pumping is typic al of that to be expected in a residential neighborhood, and would not constitute A offensive odor @ under the regulations. The remaining liquid after the solids have settled will be pumped uphill to the Eljen In-Drain system. The pump station is a sealed component of the system not open to the outside environment. It is equipped with an alarm to advis e the residents of high liquid levels in the pump chamber, which might signify a pump failure. The Eljen In-Drain system consists of modular, repl aceable component blocks ( A cells @ ) of synthetic materials which provide a large surf ace area for the growth of the mat of organic growth that provides the actual biologic al treatment of septage which would

otherwise occur within the area of a conventional l each field or mound system. At least fifty of these systems installed in the conditions of nor thern New England (Vermont, New Hampshire and Maine) have functioned well over time . Approximately six are installed and functioning within the Town of Norwich. A failure of the system can result if a treatment cell becomes blocked by excess solids. Unlike a convent ional leach field, a failed treatment cell can be removed and replaced within a few hours . The septage in the leach field does not contain the solid materials as in the septic ta nk, and is not as highly offensive in odor as is the contents of the septic tank. If a cell s hould need replacement as a one-time event, the odor that would be released during its r eplacement would not be so persistent or

offensive in character as to constitute A offensive odor @ under the regulations. The system is designed so that the liquid flows dow n through the system, into and through the sand layer, and into and through the na tive soils, flowing under the slab of the house and reaching groundwater only after it has be en acceptably treated by the system, the sand filter, and its passage through the native soils. Appellant = s hydrogeologist analyzed the probable groundwater flow and behavior of the system under rainfall conditions, and concluded that the rear wall of the house foundation (concrete retaining wall) will block the flow of the treated effluent i n the ground, so that it will pond in behind that wall and flow around the side of the house, an d could reach the surface having received insufficient treatment. If the Eljen syst em becomes inundated it will not function as designed. However, that conclusion was based on the erroneous assumption that the foundation was excavated into the existing ground l evel. In fact, the ground was raised at the downslope side of the house to create the flat terrace, prior to the pouring of the slab4

and the pouring of the rear concrete wall, and the material excavated behind the rear wall was backfilled and replaced. Based on the evidence , we conclude that the Eljen system is reasonably likely to function as designed, and to p rovide an adequate degree of treatment of the household sewage, so that no offensive odor will be produced. Furthermore, if in the future the Eljen sewage disp osal system for this parcel does not work as designed, so that sewage surfaces on th e property or the system becomes saturated or inundated so that it does not provide sufficient treatment, resulting in persistent and offensive odors, then at that time i t will violate the odor performance

standard of ' 6.1. Appellee-Applicant assumes the risk that if t he system fails to function as designed, the residential use of the building may h ave to be discontinued until or unless the system or a replacement system can be made to w ork. Based on the foregoing, it is hereby ORDERED and AD JUDGED that the appeal is denied; Appellee-Applicant = s permit is hereby granted.

Done at Barre, Vermont, this 29 th day of December, 2000.

_________________________________________________ Merideth Wright Environmental Judge