STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF DARE 02 EHR 1607
George C. Ansell, Jr.,Petitioner,
v.
N.C. Department of Environment and Natural Resources,
Respondent. / DECISION
A contested case hearing was heard in this matter on January 21, 2003, at the Pasquotank County Courthouse in Elizabeth City, North Carolina, before the honorable James L. Conner II, Administrative Law Judge. Petitioner George C. Ansell, Jr. appeared pro se. The Respondent Department of Environment and Natural Resources (hereinafter known as DENR) was represented by John P. Barkley, Assistant Attorney General. The parties stipulated to proper notice of the hearing.
ISSUE
Did the Respondent properly deny Petitioner’s application for an improvement permit to install an on-site wastewater system on his property in Dare County, North Carolina?
Based upon the evidence presented at the hearing, including the testimony of witnesses, the exhibits admitted, and all other relevant material, the undersigned makes the following:
FINDINGS OF FACT
1. On August 19, 2002, Mr. Lee Holt applied to the Dare County Health Department (hereinafter “DCHD”) for an improvement permit to allow installation of an on-site wastewater system on Petitioner’s property, on Collington Road (hereinafter “the site”), located in Dare County, North Carolina. The property was owned by George C. Ansell, Jr. (hereinafter “Petitioner”). The application was for a wastewater system to serve a two-bedroom home.
2. On August 26, 2002, Mr. Jack Flythe, an environmental health specialist with DCHD, conducted an evaluation of the site to determine the site’s suitability for installation of a wastewater system in accordance with state wastewater laws and rules, N.C.G.S. 130A-333 et seq. and 15A NCAC 18A Section .1900. Mr. Flythe made approximately two (2) auger borings in separate areas across the site and evaluated the soils from the borings to determine the suitability of the site.
3. Mr. Flythe also observed the topography and landscape position of the site and considered the available space of suitable soils for installation of a wastewater system on the site.
4. In evaluating the auger borings, Mr. Flythe found soil colors of chroma two or less on the Munsell color chart, indicating a soil wetness condition at less than 12 inches from the natural soil surface. Mr. Flythe found the same conditions in both auger borings across the site. Mr. Flythe found that there was insufficient area for installation of a wastewater system on the site.
5. Mr. Flythe determined that the site was unsuitable due to the presence of a soil wetness condition at less than 12 inches from the natural soil surface, in violation of 15A NCAC 18A .1942.
6. Mr. Flythe also determined that, due to the soil wetness condition at less than 12 inches from the natural soil surface, a mound fill system could not be installed on the site pursuant to 15A NCAC 18A .1957(b)(1).
7. Mr. Flythe also determined that there was unsuitable fill material on the site that had been previously applied across the site.
8. Mr. Flythe could not find any other modified or alternative system that could be used on the site to change the classification from Unsuitable.
9. By letter dated August 27, 2002, DCHD notified Petitioner that the site had been determined to be Unsuitable due to the soil wetness condition, and inability to meet fill requirements, and that the request for an improvement permit was denied. The letter also advised the Petitioner of his right to informal review of this decision and of his formal appeal rights. The letter also notified Petitioner of the option to obtain the services of a private consultant to submit data and a proposed plan for possible installation of a system on the site.
10. At hearing, Mr. Flythe was qualified as an expert in the evaluation of sites for the installation of wastewater systems in accordance with state on-site wastewater laws and rules.
11. Mr. Flythe’s expert opinion was that the site was classified as Unsuitable for the installation of a wastewater system due to the soil wetness condition less than 12 inches from the natural soil surface and the unsuitable fill material.
12. Mr. Flythe’s expert opinion was that no modified or alternative system could be used on the site, and that a mound system could not be used on the site due to the soil wetness condition less than 12 inches from the natural soil surface.
13. Mr. Flythe’s expert opinion was that a wastewater system installed on the site would not function properly and would eventually fail.
14. Mr. Fred Parker, the environmental health supervisor for DCHD, did a second opinion evaluation of the site pursuant to a request from the Petitioner.
15. At hearing, Mr. Parker was qualified as an expert in the evaluation of sites for the installation of wastewater systems in accordance with state on-site wastewater laws and rules.
16. Mr. Parker performed a second opinion evaluation of the site, doing two additional auger borings and observing a previous auger boring. He also determined that there was a soil wetness condition less than 12 inches from the natural soil surface of the site.
17. Mr. Parker also determined that the fill on the site had not been placed on the site before July 1, 1977, and therefore was not considered existing fill material that was considered suitable under the wastewater rules. He later confirmed, by reviewing aerial photos of the site, that the fill material on the site could not have been placed on the site prior to 1996.
18. Mr. Parker’s expert opinion was that the site was classified as Unsuitable for the installation of a wastewater system due to the soil wetness condition less than 12 inches from the natural soil surface and the unsuitable fill material.
19. Mr. Parker’s expert opinion was that a wastewater system installed on the site would not function properly and would eventually fail.
20. In October, 2002, Dr. Robert Uebler, Regional Soil Specialist, DENR, evaluated the site as a second opinion evaluation in consultation with DCHD.
21. Dr. Uebler also found soils that he classified as colors of Chroma 2 or less on the Munsell color chart. He stated that colors of chroma 2 or less indicate saturation of the soil, which indicates a soil wetness condition in violation of rule .1942. These colors occur over a long period of years, and are not affected by short term weather events such as heavy rainfall. The rules require at least 12 inches of separation from the naturally occurring soil surface to a soil wetness condition. An unsuitable soil wetness condition can lead to effluent going directly into groundwater, leading to possible contamination of wells and other water supplies, or escape of effluent to the ground surface. Dr. Uebler found the soil wetness condition on the site at less than 12 inches from the naturally occurring soil surface throughout the auger borings he did on the site.
22. Dr. Uebler also noted 36 inches of fill material over the top of the natural soil in the borings. The fill material is important to the determination of soil wetness because soil wetness is measured from the natural soil surface, not from the top of fill material. He also found the natural soil beneath the fill to be organic soils, which are classified as unsuitable.
Dr. Uebler observed the soil wetness condition in the fill material at 30 inches. He stated that this actually placed the soil wetness condition 6 inches above the natural soil surface, in violation of the wastewater rules.
23. Dr. Uebler knew of no modified or alternative system that could be used on the Petitioner’s site. The only solution Dr. Uebler was aware of was to pump to an approved off-site lot.
24. Dr. Uebler was qualified as an expert in the physics of soil and the evaluation of sites for the issuance of permits for on-site wastewater systems under state laws and rules.
25. Dr. Uebler’s expert opinion was that the site was classified as Unsuitable for installation of a wastewater system due to the soil wetness condition and the unsuitable fill and that no alternative, modified, experimental or innovative wastewater system could be used on the site.
26. In response to questions about alternatives for a wastewater system utilizing fill or mound systems to compensate for unsuitable conditions, Dr. Uebler testified that he had been involved in research projects in coastal soils, attempting to find other types of wastewater systems using such methods, and that those systems repeatedly failed when the soil wetness condition was at less than 12 inches from the natural soil surface. Therefore, in his expert opinion, a mound system would not work on the site.
27. Dr. Uebler’s expert opinion was that a wastewater system placed on the site would not function properly. He stated that the system would most likely fail by surfacing of the wastewater effluent but could also contaminate the groundwater without surfacing.
28. At the close of the Respondent’s evidence, Respondent’s exhibits 1 through 6 were admitted into evidence.
29. Petitioner cross-examined the Respondent’s witnesses, introduced photographs of the site and neighboring sites as Petitioner’s 1 - 10, and Petitioner testified on his own behalf; however, Petitioner did not submit any scientific evidence or expert witnesses to contradict the evidence presented by Respondent.
CONCLUSIONS OF LAW
1. 15A NCAC 18A .1947 states that “(a)ll of the criteria in rules .1940 through .1946 of this Section shall be determined to be SUITABLE, PROVISIONALLY SUITABLE, or UNSUITABLE, as indicated. If all criteria are classified the same, that classification shall prevail. Where there is a variation in classification of the several criteria, the most limiting uncorrectable characteristics shall be used to determine the overall site classification.”
2. 15A NCAC 18A .1942 states in part that “(s)oil wetness conditions caused by a seasonal high-water table, perched water table, tidal water, seasonally saturated soils or by lateral water movement shall be determined by observation of colors of chroma 2 or less (Munsell color chart) in mottles or a solid mass” and “sites where soil wetness conditions are less than 36 inches below the naturally occurring soil surface shall be considered UNSUITABLE with respect to soil wetness.”
3. 15A NCAC 18A .1957(b)(1) states in part “Fill systems may be installed on sites where at least the first 18 inches below the naturally occurring soil surface consists of soil that is suitable or provisionally suitable with respect to soil structure and clay mineralogy, and where organic soils, restrictive horizons, saprolite or rock are not encountered. Further, no soil wetness condition shall exist within the first 12 inches below the naturally occurring soil surface and a groundwater lowering device shall not be used to meet this requirement.”
4. 15A NCAC 18A .1957(b)(2) states in part “An existing fill system that does not meet the requirements of Paragraph (b)(1) of this Rule may be utilized for a sanitary sewage system if ... substantiating data are provided by the lot owner (if not readily available to the health department) indicating that the fill material was placed on the site prior to July 1, 1977.”
5. The scientific evidence presented supported the conclusion that the soils on the site were chroma 2 or less at a depth of less than 12 inches from the naturally occurring soil surface, indicating an unsuitable soil wetness condition and unsuitable fill material on the site in violation of 15A NCAC 18A .1942 and .1957(b)(1) and (2). Therefore, the site was properly classified as UNSUITABLE.
6. The facts in the case support a conclusion that no modified, alternative, experimental or innovative system could be used that would allow the site to be reclassified as PROVISIONALLY SUITABLE in accordance with 15A NCAC 18A.1956, .1957 or .1969.
7. Substantial evidence was presented to support Respondent’s action in classifying the site as UNSUITABLE and denying the request for issuance of an improvement permit for site.
8. The Respondent’s decision to classify the site as UNSUITABLE and deny an improvement permit was made pursuant to proper procedure and was not arbitrary nor capricious.
DECISION
The Respondent’s decision to classify the site as UNSUITABLE and deny issuance of an improvement permit for the site should be AFFIRMED.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. N.C.G.S. 150B-36(a).
The agency is required by N.C.G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.
The person who has been delegated authority by the agency to make the final decision in this contested case is the State Health Director, Dr. Leah Devlin.
This the 3rd day of May, 2005.
______James L. Conner II
Administrative Law Judge
A copy of the foregoing was mailed to:
George C. Ansell
P.O. Box 15
Nag’s Head, NC 27959
Petitioner
John P. Barkley
Assistant Attorney General
N. C. Department of Justice
Health and Public Assistance Section
9001 Mail Service Center
Raleigh, NC 27699-9001
Attorney for Respondent
This the _____ day of May, 2005.
______
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
(919) 733-2698