This decision follows the reopening of the trial conducted on plaintiff Robert Talmo's appeal, pursuant to G.L. 40A, § 17, of the denial of Talmo's request for zoning enforcement at the defendants Carleton Buckley and Heidi Pihl Buckley's property ("Buckley Property"). This court conducted a trial on December 8, 2015, following which a decision was issued on March 24, 2016, dismissing Talmo's appeal for lack of subject matter jurisdiction on the grounds that he did not have standing to assert a zoning violation involving the illegal residential occupancy of the second building on the Buckley Property. The issue of standing was raised sua sponte in the court's decision on the basis of evidence presented at trial as confirmed and amplified by the view conducted at the subject properties on December 9, 2015. Talmo filed alternative motions for a new trial and to amend or supplement the findings, arguing that the issue of his standing, not having been contested by the defendants, either the Buckleys or the Framingham Zoning Board of Appeals (the "Board"), was established and was no longer fair game to be raised or litigated at the trial. Talmo argued that the presumption of standing to which he was entitled as an abutter had not been rebutted, and thus he had no obligation to present evidence on the issue. On Talmo's motions, I ruled that the evidence at trial justified a finding that the presumption had been rebutted. However, I further ruled on Talmo's motions that since the issue of standing was not explicitly raised or addressed until it was addressed in the court's decision, it would be inequitable to deprive Talmo of an opportunity to present evidence to establish his standing once I had determined that the presumption had been rebutted. Accordingly, I ordered that the trial would reopen on July 13, 2016, for the presentation of evidence on the limited issue of plaintiff's standing.
The trial was reopened on July 13, 2016, at which time Talmo presented additional testimony from the plaintiff himself, and from two additional expert witnesses. The parties submitted additional requests for findings of fact and rulings of law on November 14, 2016, and I took the matter under advisement at that time. It is from this reopened trial that this decision now issues.
ADDITIONAL FACTS [Note 1]
Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make additional factual findings as follows:
27. There are two individual septic systems on the Buckley Property, serving the total of six bedrooms on the property, three in the original house, and three in the former barn now occupied by the Buckleys as their residence. Both septic systems consist of a standard tank and leaching field. The system serving the original house was installed in approximately 1956, and the system servicing the former barn was installed in approximately 1984.
28. The Town of Framingham Board of Health has no record of ever having permitted or approved either of the septic systems on the Buckley Property, either under the current Title 5 of the State Environmental Code, 310 CMR 15.000, et seq., in place since 1971, [Note 2] or any predecessor regulations.
29. The two septic systems on the Buckley Property together exceed the maximum design flow allowed by Title 5 of 440 gallons per day per acre.
30. Evidence concerning the exact locations of the two septic systems on the Buckley Property was equivocal, and I do not credit Robert Talmo's testimony as to the location of the two systems, but the evidence, primarily the sketch plans in the two Title 5 inspection reports for the systems, was sufficient to determine, as I so find, that both systems are located entirely on the Buckley Property, and that the system servicing the original house is on the westerly side of the house (the side facing the Talmo Property), and the system servicing the former barn is on the easterly or southeasterly side of the former barn, between the former barn and Nixon Road.
31. Plaintiff argues that the septic systems on the Buckley Property do not have the required separation between the bottom of the leaching fields and the high groundwater. I find the evidence insufficient to make such a finding, and accordingly I do not find that there was insufficient separation between the bottoms of the two leaching fields and the high groundwater. Furthermore, I find and rule, based on the Title 5 inspection reports admitted into evidence, that the two Buckley septic systems are functioning normally. [Note 3]
32. There are two wells on the Buckley Property. According to the two Title 5 inspection reports in evidence, the septic system for the original house on the Buckley Property is 85 feet from a well servicing the property, and the other septic system is more than 100 feet from any well. [Note 4]
33. There are two wells on the Talmo Property. The one used by Talmo for potable water is just easterly of the house on the Talmo Property, within the driveway turnaround in front of the house, and is located 230 to 240 feet away from the septic system servicing the original house on the Buckley Property, and is located approximately 300 feet from the septic system servicing the former barn. [Note 5]
34. The second well on the Talmo Property is not used for potable water, and is located 400 to 500 feet westerly of the house on the Talmo Property, and consequently is at least 630 feet from the nearest septic system on the Buckley Property.
35. The Talmo Property is served by a septic system directly to the west of, and just behind, the plaintiff's house. [Note 6] The well used by Talmo for potable water is approximately 80-110 feet from this septic system, depending on the exact location of the well within the driveway turnaround on Talmo's property. [Note 7]
36. I find that there was no competent evidence that groundwater flows generally from the Buckley Property toward the drinking water well on the Talmo Property. I do not credit the testimony offered on behalf of Talmo that the topography of the Buckley Property and the Talmo Property is such that the groundwater flows from the Buckley Property towards the well on the Talmo Property.
37. The two septic systems on the Buckley Property were inspected pursuant to Title 5, 310 CMR 15.000, et seq., on October 25, 2010, apparently as a result of a complaint by Talmo's attorney. [Note 8] Other than the reports resulting from these two inspections, the Framingham Board of Health possesses no record of approved plans, permits, or prior inspections for these two septic systems. [Note 9]
38. A septic system, like those on the Buckley Property, that has a septic tank and a leaching field will pass a Title 5 inspection when within 50 to 100 feet from a private water supply well if tests of water in the well show less than 5 milligrams per liter ("mg/l"), also expressed as 5 parts per million ("ppm"), of nitrates (a form of nitrogen) in the tested water. 310 CMR 15.303(1)(c)(4). The maximum level allowed, and considered to be safe, in drinking water generally, where a septic system is located greater than 100 feet from the well, is up to 10 mg/l, or ppm, for nitrates and 1 mg/l, or ppm, for nitrites (another form of nitrogen that oxidizes into nitrates). 310 CMR 22.06(2). A septic system that is more than 100 feet from a well will pass a Title 5 inspection if the well tests for less than 10 mg/l, or ppm, of nitrates, and less than 1 mg/l, or ppm, of nitrites.
39. In the October 25, 2010 Title 5 inspections, both septic systems on the Buckley Property were graded as "passed". This would necessarily include a determination, although it is not specifically noted in either report, that testing of the well within 100 feet of the system servicing the original house on the property yielded less than 5 mg/l, or ppm, of nitrates and less than 1 mg/l, or ppm, of nitrites in the water.
40. Testing of the well providing potable water to the Talmo house yielded the following results. In October, 2006, the well, which is 230-240 feet from the nearest septic system on the Buckley Property, and 300 feet from the other septic system on the Buckley Property, was tested and the water was found to contain 2.7 mg/l, or ppm, of nitrates and 0.16 mg/l, or ppm, of nitrites. [Note 10] Both of these results are within acceptable Title 5 limits for drinking water, even for wells within 50 to 100 feet of a septic system.
41. In April, 2016, a water sample from this same well indicated that the nitrate level was 1.6 mg/l, or ppm, and there was no detectable nitrite level. [Note 11]
The posture in which this action comes back before the court is a reopening of the evidence to determine whether the plaintiff, Robert Talmo, has standing, with respect to the claimed zoning violation, a second dwelling on a lot in a single-family zoning district, taking place on the Buckley Property at 30 Nixon Road in Framingham. The court having found after the initial trial of this matter that Talmo's presumption of standing was rebutted, and that, despite being an abutter, he does not have standing, the purpose of the reopened trial is to allow Talmo an opportunity to "prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012). The law of the case is that Talmo's presumption of standing has been rebutted, and therefore, "the jurisdictional question is decided on 'all the evidence with no benefit to the plaintiffs from the presumption.'" Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996), quoting Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957). Following rebuttal of the presumption accorded to abutters, plaintiffs have "the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence" of the issuance of the permit that is the subject of the appeal. Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 120 (2011). The facts offered by the plaintiff must be more than merely speculative. Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).
The sole basis of aggrievement Talmo claims is damage caused by the septic systems on the Buckley Property to the well he uses for drinking water. Talmo claims, based on evidence at the reopened trial, that the Buckleys, in order to service the illegally established second dwelling unit on the Buckley Property, have installed a second septic system that together with the original septic system on the Buckley Property violates Title 5 of the State Environmental Code, 310 CMR 15.000 et seq., in various ways. As a direct result of contamination emanating from these septic systems, Talmo argues, his drinking water well has been exposed to unhealthy levels of nitrate contamination. If proved, this claim would provide sufficient basis for a determination that Talmo is aggrieved, and therefore has standing. Damage caused by a septic system to an abutter's water quality can serve as a basis for a finding of damage to the abutter that is "private and specific" to the abutter, "going beyond the interest of the general public." Higby/Fulton Vineyard, LLC v. Bd. of Health, 70 Mass. App. Ct. 848 , 851 (2007) (holding that nitrogen loading caused by a septic system to a pond on which both parties' properties abut, if proved, could serve as basis for abutter's standing). In order to prove his claim of damage, Talmo must prove that his drinking water well is contaminated by sufficient levels of nitrates or other contaminants to cause harm, and that this contamination is caused by the Buckleys' septic systems.
Talmo presented three witnesses in support of his claim. Talmo himself testified with respect to physical characteristics of his property and the Buckley Property, with respect to grading done on both properties, and with respect to the locations of wells and septic systems on both properties. Lucio Barinelli testified with respect to the results of tests of the quality of water in Talmo's wells. David Crispin, a professional engineer and licensed septic system inspector, testified with respect to compliance, or lack thereof, of the Buckley septic systems with Title 5, with respect to groundwater flow, and with respect to impact of the Buckley septic systems on Talmo's drinking water well.
Crispin testified that the two septic systems on the Buckley Property fail to comply with Title 5 requirements. First, and not in dispute, is the fact that the Town of Framingham Board of Health has no record of ever having issued a Disposal System Construction Permit, a Certificate of Compliance or otherwise having approved or inspected the construction or upgrade of either of the two septic systems under Title 5 or its predecessor regulations in effect prior to 1971. This is a violation of 15 CMR 15.020 and makes both of the systems on the Buckley Property per se illegal. However, the mere fact of failure to comply with Title 5 regulations on a neighboring property does not confer standing; the plaintiff must relate the violations to some injury specific to his property. See Bullen v. Velarde, 17 LCR 403 , 409 (Mass. Land Ct. 2009) (Scheier, J.). This the plaintiff attempts to do by presenting evidence that the Buckley septic systems are over the allowed capacity, have inadequate separation from the high groundwater, that the groundwater generally flows towards Talmo's well, and that Talmo's well is contaminated by nitrates originating from the Buckley's septic systems. Each of these claims is examined below.
Over-capacity. Crispin testified with respect to substantive failures of the Buckley septic systems to comply with Title 5 requirements, including his opinion that the two septic systems on the Buckley Property, taken together, exceed the capacity allowed by Title 5. Specifically, with six bedrooms (requiring a design flow of 660 gallons per day) on a parcel slightly in excess of 50,000 square feet, the Buckley septic systems exceed the maximum allowed design flow of 440 gallons per day per acre. [Note 12] I credit his testimony that this condition violates Title 5, but as with the failure of the systems to have been approved, the fact that the systems are over capacity is not enough to confer standing unless it can be related to a specific injury on Talmo's property. Evidence that a septic system violates Title 5, without more, "is a general 'injury' to all citizens of [the Town] [and] does not (on its own) evidence or suggest any resulting harm to the plaintiff, and is thus insufficient for standing." Cohasset Realty Trust v. Bobo, 16 LCR 542 , 545 (Mass. Land Ct. 2008) (Long, J.).
Groundwater separation. Crispin testified as well to the failure of these over-capacity septic systems on the Buckley Property to maintain the minimum required separation between the bottom of the soil absorption systems, or leaching fields, and the high groundwater under the systems. As stated above in Finding of Fact No. 31, I find and rule that there is insufficient evidence upon which to conclude that the Buckley septic systems fail to meet the minimum requirements for groundwater separation.
Title 5 requires that the separation between the bottoms of the leaching fields for the two systems and the high groundwater must be either four or five feet, depending on percolation rates of the soil. See 310 CMR 15.212(1). There was no evidence presented with respect to percolation rates of the soil. Furthermore, the only evidence of the separation between the bottom of the systems and the high groundwater was not based on any testing or first-hand observations, but was taken from second-hand information or observations of another site, stated equivocally at best, in the two Title 5 inspection reports. Page 16 of each report notes "5+" feet depth to high groundwater. The reports state, based on a then-eleven year old determination of high groundwater for a property across the street from the Buckley Property, that "water table [is] at least 5'", and further state, "bottom of leach stone is 3' to 4' B.G. [below ground]". Plaintiff asks the court to conclude, based on this evidence, that there is only a one to two foot separation between the bottom of the septic systems and the high groundwater. The reliance on a 1999 report for a property across Nixon Road, an unknown distance from the subject septic systems, with unknown similarities and differences, including elevation, topography, and even whether it is in the same watershed, to determine high groundwater on the Buckley Property at the time of the inspections in 2010 is insufficient evidence upon which to conclude for the purposes of this case that the groundwater at the subject location is too high, and therefore does not present sufficient separation from the septic system to provide the desired filtering of nitrogen in the soil. Cf. 310 CMR 15.101 103 (providing for the proper methods of determining high groundwater). Even accepting the statements in the reports, I do not conclude, as does the plaintiff, that "5+" feet means as little as five feet; it means at least five feet, and I decline to conclude on the basis of this evidence that the separation between the bottom of the systems on the Buckley Property and the high groundwater failed to meet Title 5 standards.
Crispin himself testified as to the inadequacy of relying on the groundwater as determined in the Title 5 inspection reports, [Note 13] and yet, without conducting additional tests and without information from a more reliable source, Crispin testified as to inadequate groundwater separation based on the same reports he himself criticized as inadequate. [Note 14] I do not credit this aspect of his testimony.
Groundwater flow. Both septic systems on the Buckley Property are acknowledged to be functioning, and both are well over (two and half and three times over, respectively) 100 feet from Talmo's nearest well. As Talmo's expert Crispin himself testified, "[t]he presumption under Title 5 is [that a 100-foot setback from a well is] an adequate distance to filter out bacterial contamination primarily." [Note 15] Crispin also testified that, "The state has determined that 100 feet is an effective distance to ensure that there is minimum impact from the septic system into [a] drinking water well." [Note 16] Notwithstanding the acknowledged filtering capacity provided by the significant distance between the Buckley septic systems and the Talmo well, Crispin testified that the general flow of the groundwater would bring whatever contamination there was in the Buckley septic systems to the Talmo well. This opinion, as noted above, is partially undermined by the inability to prove that there is insufficient separation between the bottoms of the systems and the high groundwater, and is further undermined by an insufficient basis for a conclusion that, whatever the distance, the groundwater actually flows from the Buckley septic systems towards the Talmo well.
Crispin's opinion that the groundwater flows from the Buckley Property toward the well on the Talmo Property was based "on the topography that we know of the area " [Note 17] He relied for this conclusion solely on his review of "the Town's topographical atlas to determine topography " [Note 18] The Town's topographical atlas, upon which Crispin relied, was not further identified beyond this generic description. It was not offered into evidence, nor was there any suggestion that the atlas would be admissible if offered. Proposed Mass. R. Evid. 703 provides in relevant part that an expert's opinion must be based on his "knowledge of the particular facts from firsthand observation, or from a proper hypothetical question posed by counsel, or from unadmitted evidence that would nevertheless be admissible." Documents not admitted into evidence may not be relied upon for an expert opinion absent a showing that they are reliable and independently admissible. Commonwealth v. Waite, 422 Mass. 792 , 803-804 (1996). Even if it could be shown that the Town's topographical atlas was admissible, there was no showing with respect to the date of the atlas, or whether it showed current topography. As discussed immediately below, it is unlikely that any previously published atlas would show accurate current grades at the subject properties.
The only document actually in evidence that contains any topographical information does not support Crispin's opinion. As shown on the "Notice of Intent Site Plan", dated April 26, 2001, entered into evidence as Exhibit 36, there was in 2001 a downwards gradient of approximately 22 feet over a distance of 220 feet from the Buckley property line to the approximate location of the well for potable water on the Talmo property. However, this more-than fifteen year old plan purports to show then-existing and proposed grades on Talmo's property in 2001 in connection with site work Talmo proposed in 2001. Talmo testified that grading was performed at some time prior to 2002, but there was no "as-built" plan, certificate of compliance issued by the conservation commission, or other evidence offered to show resulting grades or the extent to which the work as performed conformed to the work as proposed.
Further, Talmo admitted that the plan is not accurate in several respects. He testified that since the date of the plan, there have been changes to stone walls, brick walkways, plantings, wetlands, excavation of exposed ledge, removal of a concrete wall, and removal of a shed, all other than as shown on the plan. [Note 19] Excavation of exposed ledge was conducted in 2013 or 2014, to the areas shown in dark gray on Exhibit 36; again, there is no evidence as to the resulting grades. [Note 20]
All of these post-plan changes render Exhibit 36 singularly unreliable as a guide to the current topography of the land, and the generically described Town atlas, of unknown date, authorship, accuracy, authenticity or admissibility, cannot assist Talmo or his expert in demonstrating the current topography of the land. His opinion not being shown to be based on his personal observations or on any admitted or admissible documentary evidence as to the actual topography of the land, I do not credit Crispin's opinion that the flow of groundwater runs from the Talmo Property towards the drinking water well on the Talmo Property. Accordingly, I find and rule that there was insufficient evidence upon which to find that the groundwater flows as Crispin testified.
Other sources of contamination. Crispin completely failed to address or dismissed without adequate explanation other possible sources of nitrate and nitrite contamination. There are at least three other septic systems in the vicinity that are about as close to Talmo's well as the Buckleys' septic systems. There is a house just to the north of the Buckley Property, and there is a house immediately to the south of the Buckley Property, just south of Talmo's driveway (shown on Chalk B). These were not mentioned by Crispin but are about the same distance from Talmo's well as the Buckley septic systems. Most significantly, Crispin did not do any investigation into the possibility that Talmo's own septic system was a source of nitrate and nitrite contamination to Talmo's well, despite the close proximity of Talmo's septic system to his own well. Talmo's septic system is located just behind his house, and his well is located just in front of his house, in the turnaround of his driveway as shown on Exhibit 26 and Chalk B. [Note 21] As scaled off of Exhibit 36, Talmo's septic system is located as little as 80 feet and no greater than about 110 feet from Talmo's well, depending on the exact location of the well within Talmo's driveway turnaround. Despite its close proximity to the well, Crispin did not review any inspection reports concerning the septic system on the Talmo Property or conduct any inspection of the septic system other than to "walk the property". [Note 22] Given the lack of credible or competent evidence as to the direction of the groundwater flow, and the failure to investigate at least three other septic systems in the immediate vicinity, including Talmo's, as possible sources of nitrate and nitrite contamination, Crispin's testimony that the Buckley Property "is the only property that doesn't conform in the immediate vicinity; that is, upgradient of Talmo's well", was unsupported by any evidence and was not credible.
Crispin failed as well to rule out other sources of possible nitrogen contamination in the form of nitrates or nitrites despite his acknowledgment of their potential for contamination and despite evidence of their presence in the immediate vicinity of Talmo's well. He acknowledged that the possible sources of nitrogen contamination are "typically urine, ammonia in urine, whether it's man or animal, [or] fertilizer. Those are really the big sources." [Note 23] Notwithstanding this acknowledgement, he failed to account for fertilizer as a possible source of contamination to Talmo's well, despite Talmo's admission that he hydroseeded his property on at least two occasions, once in October, 2002 and on one other occasion after 2002, a process that involves spraying a slurry including grass seed and fertilizer. [Note 24] Similarly, Crispin acknowledged that Talmo keeps twenty "Guinea fowl" on his property, but dismissed the droppings from these animals as sufficient to cause well contamination without any evidence as to how long the animals had been at the property, how and where they were kept on the property and other factors that would be relevant to an assessment of whether they could contribute to contamination of the well. There was no credible explanation as to why keeping twenty fowl, presumably in a confined coop, and possibly near the well, would not, over a prolonged period of time, serve as a potential contributing source of nitrogen contamination. I do not credit Crispin's dismissal out-of-hand, of the number of animals as simply being too few to cause a problem. [Note 25]
Even if the level of nitrates and nitrites found in Talmo's drinking water well was sufficient to constitute a specific injury to Talmo in the use of his property, I find that there was insufficient evidence upon which to base a finding that the nitrate and nitrate contamination originated wholly or even partially at the Buckleys' septic systems. As is noted above, there is insufficient evidence that the separation of the systems from the groundwater was substandard, making it less likely that an inordinate amount of nitrates or nitrites found their way into the groundwater; there is insufficient evidence that the groundwater flows from the Buckleys' septic systems toward Talmo's drinking water well; and finally, there is insufficient evidence ruling out other sources of contamination as the cause of contamination. The plaintiff has therefore failed to carry his burden of demonstrating causation.
Contamination of Talmo's well by nitrates or nitrites. Even if Talmo had successfully shown that contamination in his well originated from the Buckleys' septic systems, Talmo would nevertheless lack standing because of his failure to demonstrate any actual injury. Regardless of their source, the levels of nitrate and nitrite contamination found in the Talmo drinking water well in 2006 and 2016 are such that they do not constitute a specific cognizable injury to Talmo, and I so find.
The undisputed evidence was that at no time did the level of nitrates in Talmo's drinking water well exceed 2.7 mg/l, or ppm, and at no time did the level of nitrites exceed 0.16 mg/l, or ppm. Title 5 allows drinking water wells to contain up to 10 mg/l, or ppm, of nitrates, and up to 1 mg/l, or ppm, of nitrites before the water is considered unsuitable for drinking. 310 CMR 22.06(2). If a drinking water well is within 100 feet of a septic system, the maximum allowed for nitrates is 5 mg/l, or ppm. 310 CMR 15.303(1)(c)(4). The drinking water well on the Talmo Property is at least 230 feet away from the nearest septic system on the Buckley Property, and so, with respect to Talmo's well, up to 10 mg/l, or ppm, would be acceptable under state regulations, and the well, having tested under 5 mg/l, would not exceed maximum allowed levels even if it was within 100 feet of the Buckley septic systems. This is consistent as well with Federal drinking water regulations, of which I take judicial notice, which provide for "the maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur, and which allows an adequate margin of safety." 40 CFR 141.2. For nitrate nitrogen, that maximum level is 10 mg/l, or ppm. 40 CFR 141.51.
I do not credit Crispin's attempt to classify a nitrate level of 1 mg/l, or ppm, as what he characterized as a "threshold" level of contamination that should warrant concern. Crispin was not presented as an expert qualified to offer opinion testimony as to levels of chemical contamination that would be dangerous in drinking water other than what is contained in applicable regulations, nor was his opinion that levels below 5 mg/l are causes for concern based on any admitted or admissible documentary evidence that would support such an opinion. [Note 26]
Grading on the Buckley Property. Talmo offered evidence that five days before the inspection of the septic systems on the Buckley Property in October, 2010, the Buckleys brought in aggregate stone to grade in the vicinity of where Talmo alleges at least one of the Buckley septic systems is located. He further testified that some of this aggregate stone, which did not previously exist on the property, has since washed down onto his lower driveway, near Nixon Road, and that this is a source of damage to him in the use of his property. There was no actual evidence, only assumptions on Talmo's part, that this grading had anything to do with either of the septic systems on the Buckley Property, and as I indicated preliminarily at trial, I find that without additional evidence linking the grading to the use of the former barn as a dwelling, evidence of this grading did not prove a cognizable injury sufficient to confer standing.
For the reasons stated above, I find and rule that the plaintiff has failed to prove by sufficient credible evidence that he has suffered a particularized injury as a result of the use or maintenance of a second dwelling on the Buckley Property, and I accordingly find and rule that the plaintiff has no standing to maintain this action.
The judgment previously entered in this action, dated March 24, 2016, will stand as previously entered. The appeal period having been tolled by these post-judgment proceedings, any appeal shall be filed within thirty (30) days from the date of entry of this decision. See Rule 4, M.R.A.P.
[Note 1] The findings of fact, numbered 1 through 26, in the decision of March 24, 2016, are incorporated by reference herein.
[Note 2] Tr. p. 130 (References to the transcript herein are to the transcript of the reopened second day of trial held on July 13, 2016).
[Note 3] Exh. 25, 26; Tr. pp. 132, 152, 192.
[Note 4] Exh. 25, 26.
[Note 5] Tr., pp. 59, 202-203.
[Note 6] Tr. at p. 202, location relative to the residence as marked by Crispin on Exh. 36.
[Note 7] Estimated based on the location of the septic system as shown on Exh. 36, Crispin's testimony as to the location of the well, and as scaled off of Exh. 36, which has a scale of 1" = 30'.
[Note 8] Exh. 25, 26.
[Note 9] Tr. at p. 129-31.
[Note 10] Exh. 34.
[Note 11] Exh. 33.
[Note 12] Exh. 47, 310 CMR 15.214.
[Note 13] Tr. pp. 144, 182-183.
[Note 14] Tr. pp. 146-147, 183.
[Note 15] Tr. p. 187.
[Note 16] Tr. p. 135.
[Note 17] Tr. p. 174.
[Note 18] Tr. p. 194.
[Note 19] Tr. pp. 49-52.
[Note 20] Tr. pp. 108-111.
[Note 21] Exh. 36, Chalk B, Tr. p. 167.
[Note 22] Tr. pp. 195-196.
[Note 23] Tr. p. 201.
[Note 24] Tr. pp. 102, 108, 114.
[Note 25] Tr. p. 199.
[Note 26] Crispin's effort to rely on an article with no attributable author, entitled, "Healthy Drinking Water for Massachusetts" was excluded on the basis of the prohibition against use of published articles in conjunction with expert testimony except on cross-examination. Prop. Mass. R. Evid. 803(18)(B). It might have been excluded on other grounds as well, including the fact that it was not attributed to any known author, and was itself at least second-hand information "adapted from a URI (University of Rhode Island) fact sheet of the same name " See Tr. pp. 139, 178; Exh. C for Identification.