The State of New Hampshire

epantnmemt of Hxevfiromx]-nex]ta

envices

Thomas S, Furack, Commtssioner

Celebrating 25 Years oJ Protecting
N ew Hmpshire's Environment

Nathan and Jenny Chartier

352 South Sugar Hill Road
Weare, NH 03281

ArnrrxrsrRarrvE

No.

Abigail's Bakery
#cA2004061s98

ORDER

12-025 \ryD

August 6,2012

A.INrnonucrroN
This Administrative Order is issued by the Department of Environmental Services, Water
Division, to Nathan T. Chartier and Jenny M. Chartier pursuant to RSA 485-A:42. This
Administrative Order is effective upon issuance.

B. Panups

1. The Department of Environmental Services,

Vy'ater Division ("DES"), is a duly-constituted

administrative agency of the State of New Hampshire, having its principal offrce atZg Hazen
Drive in Concord, New Hampshire.

2. Nathan T. Chartier and Jenny M. Charlier

South Sugar Hill Road, Weare, NH 03281.

are individuals having a mailing address

of 352

C. Srtrnr,lENTS OF tr'ncrs ANt Law

1. RSA 485-A:29-44 authoze DES to regulate the subdivision of land and the construction,
maintenance, and repairheplacement of individual sewage disposal systems ("septic systems").
Pursuant to rulemaking authority conferred therein, the Commissioner of DES has adopted NH
CooE ADMIN. Rur-s Env-Wq 1000 to implement this program.l

2. Nathan

and Jenny Chartier are owners of property located at352 South Sugar

Hill Road in
New Hampshire more particularly described on Town of Weare Tax Map #406 asLot#27
(the "Property").
'Weare,

3. On April23,2004 DES issued septic system construction approval #CA2004061598 to Nathan

Chartier for the construction of a septic system to serve a commercial bakery on the Property, that
is also served by pressurizedwater from an onsite well, that produces wastewater in the baking
process and through the use of rest room and washing facilities for several employees.
I

Prior to February g,z}O,the rules were designated NH Code Admin. Rules Env-Ws 1000.

www.des.nh.gov
29 Hazen Drive
(603l' 271,-3503

"

PO Box 95 u Concord, NH 03302-0095

" TDD Access: Relay NH 1-800-735-2964

Administrative Order No. 12-025 WD

Page 2 of 4

4. The proposed system was manufactured by Presby Environmental, Inc., ("Presby") and
marketed as the Enviro-Septic system. The Enviro-Septic wastewater treatment system was
approved for use as an innovative and alternative technology pursuant to Env-Ws 1024 in 1993,
and that approval was update d in 2004.
5. On October 19,2006, DES personnel inspected the installation of the septic system on the
Property and issued Operational Approval for the system.

6' On October 3,2008,

the Chartiers noticed that sewage was backing up into the bakery.

7. On October 27,2008, Dennis Fogg of Presby performed an inspection of the septic system on
the Property. He concluded that the system failed.
8. DES personnel inspected the system on the Property on March 16,2009. DES staff confirmed
that the system was in failure.
9. RSA 485-A:37 requires

any person who has installed or otherwise acquired a subsurface

sewage or waste disposal system installed in accordance with RSA 485-A:29-44 is required to
operate and maintain said system in such a manner as to prevent a nuisance or potential health
hazard due to failure of the system. Failure to so operate and maintain the septic system is a

violation of RSA 485-4.

10. Env-WqI003.22(a) requires the owner of a septic system in failure, as defined in RSA 485A:2,IY, shall cease using the efluent disposal area so as to prevenf any wastewater from flowing
onto or into the ground or to the effluent disposal area, either by vacating the premises served by
the septic system or by having a licensed septage hauler pump out the septic tank at sufficient
frequencies to prevent wastewater from otherwise exiting the septic tank. If the owner elects to
pump the tank in lieu of vacating the premises, the owner shall so notify DES and the local health
officer and retain all pumping receipts for inspection by DES staff or the local health officer.

l.

1
RSA 485-A:2,IV, defines "failure" as the condition produced when a subsurface sewage or
waste disposal system does not properly contain or treat sewage or causes the discharge of sewage
on the ground surface or directly into surface waters, or the effluent disposal area is located in the
seasonal high groundwater table.

12. Env-Wq 1003.1 I (a) and (b) require that if a septic system serving a structure other than a
residence, or that receives anything other than sewage for disposal, needs to be repaired and
replaced as defined in Env-Wq 100234, the owner of the septic system shall work through a
permitted designer to submit an application to DES for a replacement septic system for approval in
accordance with Env-Wq 1003.01 through Env-Wq 1003.03 and Env-Wq 1003.06 through EnvWq 1003.09 and the approved septic system shall be installed by a permitted installer.
13. Pursuant to Env-'Wq 1002.74, "repaired or replaced" means reconstructing all or a portion of
the effluent disposal area so that the effluent disposal area and, its associated components contain
and treat effluent as intended.
14. Pursuant to Env-WqI002.26, "Effluent" means the liquid component of sewage after solids
have settled out.

Administrative Order No. I2-025

llD

Page 3 of 4

15. RSA 485-A:2, X, defines "sewage" to be the water-carried waste products from buildings,
public or private, together with such groundwater inf,rltration and surfaie water as may be prsent.
16. The Charliers attempted to work with the original designer and the installer of the septic
system to address responsibility for the failure of the septic system and for the replacement of the
septic system. Those efforts have been unsuccessful, and the Chartiers are presently involved in
civil litigation with the designer and the installer of the septic system on ttre Property.
17. The manufacturer's manual for the septic system that was installed on the Property allows for
the opening and draining of a failed septic system to address short term failure of the septic
system. That "rejuvenation" process was performed on the septic system on the Property in2011
However, subsequent inspections of the Property by DES staff confirm that the process was
unsuccessful in rejuvenating the septic system, and it is again in failure.
18. DES personnel inspected the Property on May 12,2012, and concluded that the septic system
on the Property remains in failure.
19. DES has no record that a licensed septage hauler has been engaged to pump the septic tank at
frequencies sufficient to prevent wastewater from exiting the septic tank on the-Property.

20. DES has no record of receiving an application from a licensed septic system designer for a
replacement septic system for the Property.
D. DnrnnurNATroN Or, VroI,,lrrous

1' Nathan

and Jenny Chartier violated RSA 485-A:37 by failing to properly maintain and operate
the septic system on the Property so as not to cause a nuisance or potential health hazard,du to the
failure of the system.

2' Nathan and Jenny Chartier

violated Env-Wq 1003.22(a) by failing to cease allowing the use of

the septic system so as to prevent wastewater from flowing onto or into the ground or to the
effluent disposal area, either by vacating the premises on the Property or by having the septic tank
pumped at regular intervals.

3. Nathan

and Jenny Chartier violated Env-V/q 1003. I 1(a) by failing to engage a permitted
designer to submit plans to DES for approval of a replacement septic system f'or the property.

E. Ononn
Based on the above findings and determinations, DES hereby orders Nathan and Jenny
Chartier as follows:

1. Nathan and Jenny Chartier shall immediatety cease to allow the use of the septic system on the
Property by vacating the premises; OR, by engaging a licensed septage hauler topump the septic
tank on the Property at sufficient frequencies to prevent wastewater from exiting the tnk. tf ^

Nathan and Jenny Chartier elect to pump the tank in lieu of vacating the premises, they shall so notiflz

Administrative Order No. 12-025

WD

page 4 of 4

DES and the Weare Health Officer and retain all pumping receipts for inspection by DES staff or the
Weare Health Officer.

2. Within

15 days from the date of this Order, Nathan and Jenny Chartier shall engage a septic
system designer licensed in the State of New Hampshire, who shall submit new plans for approval
of a septic system to replace the failed septic system on the Property. Such plans shall be firit
stamped by the Town of Weare, pursuant to RSA 485-A:32,II.

3. Within 30 days from the date of this Order, Nathan

and Jenny Chartier shall engage a septic

system installer licensed in the State of New Hampshire, who shall install an approved septic
system on the Property. Nathan and Jenny Chartier shall obtain operational approval from DES
before covering and placing the system into operation.

4. Nathan

and Jenny Chartier shall send all correspondence, data, reports, and other submissions
made in connection with this Administrative Order, other than appeals, to DES as follows:
Richard J. de Seve, Compliance Supervisor, Subsurface Systems Bureau, DES Water Division,
P.O. Box 95, Concord, NH 03302-0095, e-mail: richard.deseve@des.nh.gov,Fax:603-271-3442.

F. AppptL

Any person aggrieved by this Order may appeal the Order to the Water Council by filing an
appeal that meets the requirements specified in Env-WC within 30 days of the date of this Order.
Copies of the rule are available from the DES Public Information Center at (603) 2lI-2975 or at"
http://des.nh.gov/organization/commissioner/legal/rules/index.htm (scroll to end of page).
Appealing the Order does not automatically relieve any party of the obligation to comply with the
Order.

G. OrHnnPnovrsroNs
Please note that RSA 485-A:43 provides for administrative fines, civil penalties, and criminal
penalties for the violations noted in this Order, as well as for failing to comply with the Order
itself. Nathan and Jenny Chartier remain obligated to comply with all applicable requirements.
DES will continue to monitor compliance with applicable requirements and will take appropriate
action if additional violations are discovered.

This Order is being recorded in the Hillsborough County Registry of Deeds so as to run with
the land.

COPY

Thomas S. Burack, Commissioner

Department of Environmental Services
DES Legal Unit
Public Information Officer, DES PIP Office
K. Allen Brooks, Chiet AGO-Environmental Protection Bureau
Weare Select Board & Health Officer
Atly James G. Walker, V/alker & Buchholz, P.A.
Afty John E. Laboe, Laboe Associates, PLLC Afty peter D. prevett