STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CRAVEN 00 EHR 1358

S. Adrian Becton )

Petitioner )

)

v. ) RECOMMENDED

) DECISION

N.C. Department of Environment and )

Natural Resources )

Respondent )

A contested case hearing was heard in this matter on March 23, 2001, in New Bern, North Carolina, before the honorable Sammie Chess, Jr., Administrative Law Judge. The Petitioner S. Adrian Becton appeared pro se. The Respondent Department of Environment and Natural Resources was represented by John P. Barkley, Assistant Attorney General.

ISSUE

Did the Respondent properly deny Petitioner’s application for an improvement permit for a wastewater system on his property in Craven County, North Carolina?

Based upon the evidence presented at the hearing, the exhibits admitted, and all other relevant material, the undersigned makes the following:

FINDINGS OF FACT

1. On May 21, 1999, Simon Adrian Becton, the Petitioner in this matter (hereinafter “Petitioner”) applied to the Craven County Health Department (hereinafter “CCHD”) for an improvement permit to allow installation of a wastewater system on his property located on Adams Creek Road in Craven County, North Carolina. The application was for a wastewater system to serve a three-bedroom mobile home. (See Respondent’s Exhibit 1.)

2. On June 7, 1999, Mr. Greg Hodges, an Environmental Health Specialist with CCHD, conducted an initial site evaluation of a designated area on Petitioner’s property that was approximately 90 feet by 78 feet to determine the site’s suitability for installation of a wastewater system in accordance with state wastewater laws and rules, G.S. 130A-333 et seq. and 15A NCAC 18A Section .1900. Mr. Hodges made augur borings in different areas across the site to determine suitability of the soils pursuant to the wastewater rules.

3. Mr. Hodges 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 property. Part of the consideration on the site was maintaining a 50 foot setback from the ditch on the property as required by 15A NCAC 18A .1950.

4. In evaluating the augur borings, Mr. Hodges found soil mottles 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. Hodges found the same conditions in the majority of auger borings across the site designated by Petitioner. Mr. Hodges also found soil characteristics that indicated organic soils on the property. However, Mr. Hodges did find an auger boring with a soil wetness condition at 15 to 18 inches without organic soils that provided some hope of being suitable if enough suitable soil could be found. Enough suitable soil was not present in the designated area but Mr. Hodges asked Petitioner to clear additional area near the boring with soil wetness at 15 to 18 inches to attempt to find enough suitable area. (see Respondent’s Exhibit 3)

5. Mr. Hodges returned to the lot after additional area had been cleared to look for enough suitable soil to permit the site. However, examination of the areas near the one boring that showed promise revealed soils with a soil wetness condition at less than 12 inches from the soil surface and additional findings of organic material.

6. Mr. Hodges determined that the site was unsuitable due to the presence of organic soils, in violation of 15A NCAC 18A .1941, a soil wetness condition at less than 12 inches from the natural soil surface, in violation of 15A NCAC 18A .1942, and insufficient available space for installation of a wastewater system and repair, in violation of 15A NCAC 18A .1945.

7. Mr. Hodges 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).

8. Mr. Hodges could not find any other modified or alternative system that could be used on the site designated by Petitioner.

9. Mr. Hodges was qualified as an expert in the evaluation of sites for the installation of on-site wastewater systems.

10. Mr. Hodges’ expert opinion was that the Petitioner’s site was unsuitable for installation of a wastewater system, that a wastewater system installed on the site would not function properly and that no alternative or modified wastewater system could be used on the site.

11. Following Mr. Hodges evaluation, France Webster, soil scientist for CCHD, evaluated the site on March 13, 2000, to provide a further evaluation of the site to determine the suitability of the site for installation of a wastewater system.

12. Ms. Webster focused her attention on areas near the site that Mr. Hodges had thought may provide suitable soil in the southwest corner of the site. Ms. Webster agreed with Mr. Hodges findings that there was insufficient suitable soil to provide the necessary area for installation of a wastewater system. Ms. Webster testified that every part of the area for installation of the system would be required to have suitable soil, and that she could not find an area on the site that had consistently suitable soils over the entire area necessary. (See Respondent’s Exhibit 4.)

13. Ms. Webster also testified that she found vegetation on the site that was indicative of wetlands, which would be unsuitable under the wastewater rules.

14. Ms. Webster was qualified as an expert in soils and the evaluation of sites for the installation of on-site wastewater systems.

15. Ms. Webster’s expert opinion was that the Petitioner’s site was unsuitable for installation of a wastewater system, that a wastewater system installed on the site would not function properly and that no alternative or modified wastewater system could be used on the site.

16. On July 21, 2000, Dr. Robert Uebler, Regional Soil Specialist, DENR, evaluated the site as a second opinion evaluation in consultation with CCHD.

17. 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 several weeks of rain or a wet period. The rules require at least 12 inches of separation from the naturally occurring soil surface to a soil wetness condition. Dr. Uebler found the soil wetness condition on Petitioner’s property at less than 12 inches from the naturally occurring soil surface. (See Respondent’s Exhibit 5.)

18. Dr. Uebler also noted that he found a massive subsoil on the site. A massive subsoil prevents the wastewater effluent from passing through the soil and properly distributing to achieve treatment of the effluent. Dr. Uebler also concurred that there was material on the site indicative of wetlands, which would be unsuitable. (See Respondent’s Exhibit 5.)

19. Dr. Uebler knew of no modified or alternative system that could be used on the Petitioner’s site.

20. Dr. Uebler testified that he considered the property for installation of a smaller system for a two-bedroom home, even though the application was for a three-bedroom home. He still found insufficient area of suitable soil for such system.

21. Dr. Uebler also testified that the site was unsuitable for installation of an initial wastewater system, even without consideration of the required equal repair area under the rules.

22. Dr. Uebler was qualified as an expert in the physics of soil and the evaluation of sites for the installation of on-site wastewater systems.

23. Dr. Uebler’s expert opinion was that the Petitioner’s site was unsuitable for installation of a wastewater system, that a wastewater system installed on the site would not function properly and that no alternative or modified wastewater system could be used on the site.

24. In response to questions about alternatives for a wastewater system utilizing removal and replacement of the soil or large amounts of fill to compensate for unsuitable conditions, Dr. Uebler testified that he had been involved in research projects in Craven County attempting to find other types of wastewater systems using such methods that resulted in failure of the wastewater systems.

25. By letter dated August 15, 2000, CCHD notified Petitioner the site had been determined to be unsuitable 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 his option to obtain the services of a private consultant to submit data and a proposed plan for possible installation of a system on the property. (See Respondent’s Exhibit 7.)

26. Following Dr. Uebler’s evaluation and the denial letter, at Petitioner’s request, Mr. Hodges and Ms. Webster returned to the property to ensure that the southwest corner had been evaluated and to further determine whether there was enough suitable soil in that area for installation of a wastewater system. Mr. Hodges and Ms. Webster reevaluated the site on October 25, 2000 and determined that the southwest corner had been evaluated on their previous visits. However, they did additional augur borings and still could not find sufficient suitable soils for installation of a system in that area. (See Respondent’s Exhibit 6.)

27. Petitioner cross-examined the Respondent’s witnesses, but submitted no 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. The scientific evidence presented supported the conclusion that the soils on the property contained a massive subsoil and organic material, indicating unsuitable soils in violation of 15A NCAC 18A .1941. Therefore, the site was properly classified as UNSUITABLE.

5. The scientific evidence presented supported the conclusion that the soils on the property were chroma 2 or less at a depth of less than 12 inches from the naturally occurring soil surface on the majority of the site, indicating an unsuitable soil wetness condition on the property in violation of 15A NCAC 18A .1942 and .1957(b). Therefore, the site was properly classified as UNSUITABLE.

6. The facts in the case support a conclusion that there was insufficient suitable space for installation of a wastewater system or a repair area, and that the site was properly classified as UNSUITABLE in accordance with 15A NCAC 18A .1945.

7. The facts in the case support a conclusion that no modified or alternative system could be used that would allow the site to be reclassified as PROVISIONALLY SUITABLE in accordance with .1956 or .1957.

8. Substantial evidence was presented to support Respondent’s action in classifying Petitioner’s site as UNSUITABLE and denying the request for issuance of an improvement permit for site.

9. The Respondent’s decision to classify Petitioner’s site as UNSUITABLE and deny an improvement permit was made pursuant to proper procedure and was not arbitrary nor capricious.

RECOMMENDED DECISION

The Respondent’s decision to classify Petitioner’s 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 recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by 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.

This the 15 day of January, 2002

______

Sammie Chess, Jr.

Administrative Law Judge