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Gardner v. Sullivan

Superior Court of Rhode Island

April 7, 2014

BRUCE GARDNER, CHARLES SWEET, and JOSEPH FRISELLA, Appellants
v.
W. MICHAEL SULLIVAN, in his capacity as Director of the RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, THE RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT Appellees.

Providence County Superior Court

ATTORNEYS:

For Plaintiff: Joseph DeAngelis, Esq.

For Defendant: Susan B. Forcier, Esq. Peter F. Kilmartin, Attorney General

DECISION

MATOS, J.

This matter arises before the Court on appeal from a decision of the Director of the Rhode Island Department of Environmental Management (DEM) denying the application for a variance of Bruce Gardner, Charles Sweet, and Joseph Frisella (collectively, Appellants). In that decision, the Director rejected the Recommended Decision of the Hearing Officer and concluded that Appellants had failed to establish by clear and convincing evidence that granting the requested variances would not have an adverse impact on the public health, interest, or environment. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

I

Facts and Travel

A

Initial Application and Notice of Denial

Appellants own a parcel of land identified as Plat 9, Lot 387 (the Property or the Lot), located on Sea Lea Avenue in Charlestown, Rhode Island. (Ex. B, In re Gardner, Recommended Decision, AAD No. 08-007/ISA at 3, Apr. 13, 2010.) Appellants seek to construct a single-family residence on the Property. Id. at 20. Although Appellants wish to construct a residence with an Individual Sewage Disposal System (ISDS) and a well, the Lot is too small to construct an ISDS without obtaining variances from the Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Individual Sewage Disposal Systems, dated January 2002 (ISDS Regulations). Id. at 28.

Those regulations, which are promulgated by the DEM, Office of Water Resources (OWR), provide minimum standards for the location, design, construction, and maintenance of ISDS. ISDS Regulations, State of Rhode Island and Providence Plantations Department of Environmental Management Division of Groundwater and ISDS at 2.) Among those minimum standards; S.D. 3.05(4) requires that an ISDS be set back at least ten feet from the property line; S.D. 3.05(1) requires that an ISDS be set back at least one hundred feet from all private wells; S.D. 2.14 requires that an alternate leach field be available on the property; and S.D. 19.02.4 requires that an ISDS be set back at least one hundred and fifty feet from Green Hill Pond. Id. at 20, 24, 52.

Because of the size and configuration of the Lot at issue, Appellants are unable to comply with those four requirements and, in their application to DEM, sought variances from each. (Ex. B, In re Gardner, Recommended Decision at 28.) Appellants requested that they be granted a variance from S.D. 3.05(4), which requires an ISDS to have a ten foot setback from the property line, to permit the setback distance to be reduced to two feet. Additionally, Appellants requested that they be granted a variance from S.D. 3.05(1), which requires an ISDS to have a one hundred foot setback from all private wells, to permit the setback distance to be reduced to seventy-one feet. Appellants also requested that they be granted a variance from S.D. 2.14, which requires that an alternate leach field be available on the property, to permit them to construct an ISDS without designating an alternate leach field. Finally, Appellants requested a variance from S.D. 19.02.4, which requires an ISDS to have a one hundred and fifty foot setback from Green Hill Pond, to permit them to construct an ISDS within fifty feet of Green Hill Pond.

On March 7, 2008, DEM denied Appellants' application for installation of the proposed ISDS. (Ex. C, In re Gardner, Rhode Island Department of Environmental Management Notice of Denial (hereinafter Notice of Denial), Application No. 9905-3244 at 1, Apr. 13, 2010.) In the Notice of Denial, DEM concluded that "the applicant did not provide convincing evidence to demonstrate that the degree of environmental protection provided under the Rules can be achieved without strict application of the particular provisions from which the variance was requested." Id. at 2. In particular, DEM determined that the project was not in the best public interest because it could potentially cause a public or private nuisance and because it could potentially affect drinking water supplies, public health, bodies of water, and the public use and enjoyment of a recreational resource. Id.

B Appellants' Evidence Before the DEM Administrative Adjudication Division

On April 14, 2008, Appellants appealed, seeking review of the Notice of Denial. (Ex. B, In re Gardner, Recommended Decision at 1.) An administrative hearing was held on August 24, August 25, and September 14, 2009. Id. At that hearing, Appellants presented the expert testimonies of Dr. Daniel Urish (Urish) and Joseph W. Frisella (Frisella). Id. at 4, 7. Appellants also introduced into evidence two reports, each of which was produced by DEM: one report titled "Total Maximum Daily Load Analysis for Green Hill Pond, Ninigret Pond, Factory Pond Stream and Teal Pond Stream, South Kingstown and Charlestown, Rhode Island" (Load Analysis Report) and dated February 9, 2006, and another report titled "Identification of Bacteria Sources in Green Hill Pond Using Polymerase Chain Reaction" (Bacteria Source Report) and dated July 8, 2003. Id. at 4. In response, DEM introduced the expert testimony of Mohamed Freij. Id. at 14.

Urish, who was admitted without objection as an expert in hydrogeology, testified that it was his opinion that the proposed ISDS would neither pollute Green Hill Pond nor endanger public health and would therefore not cause a public or private nuisance. (Ex. E, In re Gardner, AAD No. 08-007/ISA, Hearing Before the Rhode Island Department of Environmental Management Administrative Adjudication Division, (hereinafter, August 24 Hearing) at 71:8-74:20, Aug. 24, 2009.) He based those conclusions on studies and evaluations performed on the Lot and the immediately surrounding area. Id. at 17:17- 20:21. Those studies and evaluations were based on regional flow pattern maps;[1] data obtained from monitor wells;[2] and water samples obtained from wells on neighboring lots. Id. at 18:24-19:12, 24:15-21, 26:14-27:18.

From the flow pattern maps and data obtained from the monitor wells, Urish calculated the groundwater flow directions. Id. at 30:10-31:9, 32:19-33:10. He concluded that the groundwater flowed consistently to the north-northwest even as conditions changed in the area throughout the year. Id. at 63:20-64:6. According to him, the fact that the groundwater flowed consistently in that direction was significant, in that it reduced—and, in his opinion, eliminated—the possibility of contamination of nearby wells. Id. at 64:7-17, 65:7-16. That is, because the groundwater flowed in a northerly direction and because the existing wells and proposed well would be south of the proposed ISDS, effluent from the proposed system would flow away from those wells. Id. at 64:18-65:15. Urish further opined that there would not be a reversal of flow from the ISDS systems to the wells, but that the flow would continue to flow to the north-northwest. Id. at 64:1-6. He recognized on cross-examination, however, that the flow of the underground water could change direction in the event of a 1938-type hurricane. Id. at 94:10-14.

Additionally, from the water samples taken from adjacent lots, Urish concluded that the well water from neighboring parcels was of a good quality and well within the public health limits set by the Environmental Protection Agency (EPA). Id. at 24:15-25:9. Specifically, Urish determined that one lot had water that contained between 1.8 and 2.2 milligrams of nitrate per liter, and that the other lot had water that contained approximately 3 milligrams of nitrate per liter. Id. at 24:22-25:2. He noted that, under EPA standards, which establish public health limits at 10 milligrams of nitrate per liter of water, the water quality was very good. Id. at 25:1-9. Therefore, according to Urish, as a result of the direction of the groundwater flow, the minimal amount of nitrate that would be released by the proposed ISDS, and the good quality of the water on adjacent lots, the proposed ISDS would not endanger public health or contaminate any drinking water supply. Id. at 71:8-73:17.

Urish also testified that it was his opinion, based on a reasonable degree of engineering certainty, that if the ISDS was installed, located, operated, and maintained properly, the waste from the system would not pollute any body of water or wetland, namely, Green Hill Pond. Id. at 73:6-74:20. Although he recognized that installing the system would contribute nitrates to the pond, he concluded that the amount contributed from the proposed ISDS would be so small that it would cause no recognizable or significant effect. Id. at 73:18-74:20. Urish testified that the system would contribute approximately four parts nitrate per million parts water. Id. at 74:2-11. He further testified that effluent from a traditional septic system would contribute nitrates at approximately ten to eleven times that rate. Id. at 72:2-21.

In addition to Urish's testimony, Appellants also introduced the testimony of Frisella, [3] who was admitted without objection as an expert in soil evaluation and in the professional engineering, design, and installation of ISDS. Id. at 109:1-111:18. Frisella offered testimony to support his conclusion that waste from the proposed system would not interfere with the public use or enjoyment of a public resource. Id. at 168:16-169:1. First, he described the structure of the proposed ISDS. Id. at 135:6-136:14. He then explained the process through which the effluent is treated. Id. Frisella testified that once the grey water[4] effluent drained to the septic tank, it would be raised into a nutrifier—the AdvanTex system. Id. at 135:6-12. Frisella testified that the AdvanTex system cleans the effluent, removing ninety-nine percent of suspended solids and ninety-nine percent of the biological oxygen demand. Id. It does so by exposing the effluent to anaerobic conditions, causing nitrates in the effluent to bind with carbon in the anaerobic environment. Id. at 135:16-136:3. Once the effluent has gone through this process five times, it is treated with ultraviolet light, which, according to Frisella, removes ninety-nine to one hundred percent of the bacteria in the effluent. Id. 136:4-14. Having been clarified in the pump chamber, the effluent is then released into the leach field, at which point the water goes through two inches of processed stone and two feet of sand (the Bottomless Sand Filter). Id. at 138:12-20. Only after the effluent has passed through the Bottomless Sand Filter is it released into the ground. Id. at 139:21. Frisella further testified that once the clarified effluent is released into the ground, it would travel north- northwest with the groundwater flow, eventually combining with Green Hill Pond. Id. at 139:5-13. According to Frisella, if the effluent traveled at the average rate of the groundwater flow as determined by Urish's study, then it would combine with Green Hill Pond after approximately thirty days. Id. He opined that any pathogens remaining in the effluent after the clarification process would be removed during this time. Id.

Frisella testified that it was his opinion, within a reasonable degree of engineering certainty, that the waste would not be a danger to public health and that it would neither contaminate drinking water in the area nor have a detrimental effect on the public use and enjoyment of Green Hill Pond. Id. at 164:3-16, 168:2-22. According to Frisella, there would be no detrimental effect because the proposed ISDS would only be treating grey water; black water would not be introduced to the ISDS because that wastewater would be treated through a composting toilet under the proposed plan. Id. at 163:4-164:16.

Once treated with the AdvanTex unit, the ultraviolet light, and the Bottomless Sand Filter, the grey water comes out—in Frisella's words—"really pure." Id. at 168:9-15. Accordingly, the minute quantity of nutrients and pathogens entering the system would be clarified and cleansed, making any nutrient contribution negligible. Id. at 165:17-168:15. Furthermore, Frisella opined, routine maintenance would ensure the continued functioning of the system. Id. at 165:3-16. He also described the proposed unit's telemetry system, which monitors the ISDS's regular functioning and alerts the homeowners or the maintenance company of problems with the system. Id. at 166:11-167:1. He noted that, as ...


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