                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


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

       Appellant appealed from a decision of the Zoning Board 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 represented by John D. Hansen, Esq.; Appellee-
Applicant Paul Nowicki is represented by Laura O=Connor, Esq. and John C. Candon, Esq.;
the Town of Norwich is represented by its Zoning Administrator, Phil Dechert, who is not an
attorney. Sixteen neighbors have entered their appearance 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 remaining 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 regarding Aobjectionable odor.@ An
evidentiary hearing was held on that issue before Merideth Wright, Environmental Judge,
who also took a site visit alone, by agreement of the 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 arguments, the Court finds and concludes as
follows.
       Appellee-Applicant seeks to develop so-called Parcel 2, consisting of approximately
24,000 square feet, with a two-bedroom house, a garage, 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 difference of eighteen feet, and slopes
more gently down towards Appellant=s property. The driveway leads to Appellant=s house;


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Appellant=s land lies to the north and west of Appellee-Applicant=s land and is also bounded
by Blood Brook.
       The house has been constructed on a slab on a terrace 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 uphill side of the house foundation.
       Because of the steeply sloping topography, the limited size of the parcel, and the
fact that the portion by the brook is subject to inundation, Appellee-Applicant has installed
an AEljen In-Drain@ sewage disposal system on the upper portion of the property, higher in
elevation than the house, and near the driveway serving Appellant=s property. This system
has been approved. At the time of trial, the parties were litigating that approval in another
forum; nevertheless, its approval is not at issue in the present appeal. The sole question in
the present appeal is whether this system will violate the performance standards of '6.1 of
the Norwich Zoning Regulations, which require that Athere shall be no objectionable odors,@
defined in '5.24 as Aodors which because of persistence or character would 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 while it is undergoing treatment. Odors
can escape from or be generated within a failed household 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-Applicant=s parcel consists of a
conventional septic tank, a pump station to pump the 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 system 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 potential for odors in the neighborhood
during an approximately 15 minute period that the tank is open. That type, duration and

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frequency of odor from septic tank pumping is typical of that to be expected in a residential
neighborhood, and would not constitute Aoffensive 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 advise the residents of high liquid levels in the
pump chamber, which might signify a pump failure.
       The Eljen In-Drain system consists of modular, replaceable component blocks
(Acells@) of synthetic materials which provide a large surface area for the growth of the mat
of organic growth that provides the actual biological treatment of septage which would
otherwise occur within the area of a conventional leach field or mound system. At least fifty
of these systems installed in the conditions of northern 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 conventional 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 tank, and is not as highly offensive in odor
as is the contents of the septic tank. If a cell should need replacement as a one-time
event, the odor that would be released during its replacement would not be so persistent or
offensive in character as to constitute Aoffensive odor@ under the regulations.
       The system is designed so that the liquid flows down through the system, into and
through the sand layer, and into and through the native soils, flowing under the slab of the
house and reaching groundwater only after it has been 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 in the ground, so that it will pond in behind
that wall and flow around the side of the house, and could reach the surface having
received insufficient treatment. If the Eljen system 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 level. In fact, the ground was raised at
the downslope side of the house to create the flat terrace, prior to the pouring of the slab

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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 provide 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 disposal system for this parcel does
not work as designed, so that sewage surfaces on the 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 it will violate the odor performance
standard of '6.1. Appellee-Applicant assumes the risk that if the system fails to function as
designed, the residential use of the building may have to be discontinued until or unless
the system or a replacement system can be made to work.
       Based on the foregoing, it is hereby ORDERED and ADJUDGED that the appeal is
denied; Appellee-Applicant=s permit is hereby granted.

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




                            _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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