A lawsuit filed by Montsweag Roadhouse over a year ago against the engineering firm that designed a failed septic system is expected to go to court as early as July, the plaintiff’s attorney said.

While town officials and dedicated patrons of the restaurant are pleased with the owner’s efforts to maintain the system and keep it clean, the cost of continually pumping a dysfunctional septic system is costing Montsweag Roadhouse owner Chris Johnston too much money. 

Johnston told Woolwich selectmen during their most recent meeting he has hoped his suit against Bath-based Pine Tree Engineering would spur some sort of agreement.

“Sadly, there's nothing to report,” Johnston said to Woolwich selectmen in response to a request for a status update. Despite the situation, he smiled somewhat sheepishly. “Other than a dwindling bank account.”

Johnston attended the regularly scheduled Board of Selectmen meeting March 4 at the Woolwich Central School to renew his liquor license with the town. Selectmen granted the license without comment, except with regard to the septic problem, a conversation that began with a request for more information from resident Fred Kahrl. 

Selectmen are allowing Johnston more time to resolve the issue with Pine Tree. Attorneys involved in the case met in Sagadahoc County Superior Court on March 5.

Pine Tree Engineering installed a septic system design at the site of the Montsweag Roadhouse in the summer of 2011, according to Johnston. He said he and his staff did not find out about the failed system until about two months after its installation. 

According to town records, the system’s effluent was not filtering into subsurface soils, nor was the wastewater evaporating as it was supposed to. It was constructed underneath the parking lot to replace an older system that records show had problems dating as far back as 1994. 

In the old system, which was installed in 1977, effluent was pumped uphill to an open sand filter that had a gridwork of pipes. It did not have a properly working grease filter, according to Woolwich Code Enforcement Officer Bruce Engert, and so the system continually plugged up. For some time, people complained about the smell, Engert said. 

Johnston contracted with Pine Tree to replace the old system with a new one, built beneath the current parking lot. It included a 1,000 gallon grease interceptor and a series of 4x8-foot concrete chambers. 

Pine Tree received approval for the system at Montsweag from the Division of Environmental Health at the Department of Health and Human Services in November 2010, according to documents filed with the Sagadahoc County Superior Court in Bath. Following a bid process, T and H Excavation was chosen as the general contractor, who completed the work in summer 2011. 

Pine Tree engineer Steven DeWick and fellow employees supervised the work throughout construction to make sure it matched design specifications, as well as to make sure the job met state and local codes.

Woolwich Code Enforcement Officer Bruce Engert said his only responsibility as an officer of the town was to make sure the system elevations were correct. He determined the system was correctly elevated in order for it to function properly.

The intention of the design was for wastewater to both evaporate through an air filter and filter down through the soil beneath the chambers. But it was not working. 

A demand for trial by jury was filed in May last year by Johnston’s attorney, Jeffery Edwards of the Portland law firm Preti, Flaherty, Beliveau and Bachios. Since that time the case has been in litigation, with one failed attempt at mediation last summer. Ensuing inspections by wastewater experts and engineers found that the system failed, according to the complaint.

Johnston said he spends about $2,000 each week to have the septic tank at his restaurant pumped clean, at least twice per week. He has had to turn some large parties away due to gallons per day limits, yet also worries about potential customers turning away because of the idea of a dysfunctional septic system.

The plaintiff’s statement alleges the system was undersized and designed to handle just 2,000 gallons per day, when experts said it should have been designed to handle at least 3,000 gallons per day.

Edwards brought in experts on soil science and wastewater systems to comment on the case. They recommend that in order for the system to function properly, all reclaim (crushed, recycled road pavement) and impermeable clay should have been removed before concrete chambers in the system were installed. 

This would have eliminated the possibility of “ponding” and flooded tanks. They recommended the current system be removed and replaced with a new subsurface wastewater system that functions properly, the cost of which was estimated to be about $400,000.

In the meantime, Johnston is continuing to pay to have the system pumped every week.

“I'm happy with what Chris (Johnston) has been doing; he's been very cooperative,” Engert said, adding he has not found anything in the plumbing rules that states a business can continue to pump effluence in place of an approved subsurface waste water system. 

Engert also said he has had no reports of problems with Johnston's handling the restaurant's septic system, nor has he heard any complaints. “I'm satisfied he is trying to get it taken care of, but at some point it's gotta come to a head.” 

Either the restaurant will have to get a new, functioning septic system installed, establish an agreement with the town of Wiscasset to connect with its waste water pipes or close the doors, Engert said, adding he hopes it is does not come to the third option.

Johnston said the attorneys have hired another engineering firm to explore the possibility of coming up with a design for a new system.

Pine Tree staff declined to comment on the issue. However, their June 2012 answer to Montsweag’s complaint denies any allegations of fault. 

According to Johnston and his attorney, Pine Tree Engineering has pretty much admitted liability in the case, so the parties have been trying to come to some sort of resolution. Johnston added, “It's a financial matter at this point and obviously the insurance company is, acting like an insurance company.” 

Johnston said he would continue to maintain the system as he has been to keep the business open. He indicated the restaurant would have to close its doors if the situation continues as is and he runs out of money.

Edwards is confident about his case against Pine Tree. “The primary issue is over what needs to be done to correct the failure,” he said. “And determine how much that is going to cost.” He said the judge has directed the parties to move forward with a judicial settlement conference, a mediation trial that will seek to resolve the issue.