STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ONSLOW 02 EHR 0688

Johnnie Burgess
Petitioner
vs.
NC Dept of Environment & Nat. Res.
Division of Waste Management
Respondent / )
))
)
)))) / DECISION

This contested case was heard on August 12, 2002, before Senior Administrative Law Judge Fred G. Morrison Jr., in Surf City, North Carolina. Subject matter jurisdiction in OAH arises from a contested case petition filed by Petitioner on April 9, 2002.

APPEARANCES

Petitioner Johnnie Burgess represented himself. Lauren M. Clemmons, Assistant Attorney General, represented Respondent North Carolina Department of Environment and Natural Resources, Division of Waste Management.

ISSUE

Whether Respondent’s assessment of an administrative penalty against Petitioner in the total amount of $ 4,000 for violations of 15A NCAC 13B .0817(a) and 15A NCAC 13B .0819(c) should be affirmed or reversed.

TESTIFYING WITNESSES

For Petitioner: None

For Respondent:

1. Ted Lyon, Supervisor, Composting and Land Application Branch, Solid Waste Section

2. Thomas Douglas

3. Walter Giese, Environmental Health Program Specialist, Onslow County Health Department

4. Joe Gallo, Solid Waste Management Specialist, Solid Waste Section

5. James Coffey, Chief, Solid Waste Section

EXHIBITS RECEIVED INTO EVIDENCE

For Petitioner: None

For Respondent:

Ex. 1 Complaint Investigation Ex. 16 Written Statement by Andrew Quirk

Ex. 2 GIS Aerial Photo Ex. 17 Hand Written Statement by Thomas Douglas

Ex. 3 Photo of Burgess Site Ex. 18 Written Statement by Johnnie Burgess

Ex. 4 Photo of Burgess Site Ex. 19 Compliance Order with Administrative Penalty

Ex. 5 Photo of Burgess Site Ex. 20 Penalty Computation Worksheet for 15A N.C.A.C.

13B. 0817(a)

Ex. 6 Photo of Burgess Site Ex. 21 Penalty Computation Worksheet for 15A N.C.A.C.

13B. 0819(c)

Ex. 7 Photo of Burgess Site Ex. 22 Septic Tank Diagram

Ex. 8 Photo of Burgess Site Ex. 23 N.C.G.S. § 89F-3(2001)

Ex. 9 Onslow County Health Ex. 24 N.C.G.S. § 130A-290 (2001)(Excerpt)

Dept. Formal Complaint

Ex. 10 Photo of Burgess Site Ex. 25 N.C.G.S. § 130A-291.1 and 130A-191.3(2001)

Ex. 11 Photo of Burgess Site Ex. 26 15A N.C.A.C. 13B .0817

Ex. 12 Photo of Burgess Site Ex. 27 15A N.C.A.C. 13B .0819;

Ex. 13 Photo of Burgess Site Ex. 28 15A N.C.A.C. 13B .0821 and .0822;

Ex. 14 Written Statement Ex. 29 N.C.G.S. § 130A-22 (2001)(Excerpt)

by Walter Giese

Ex. 15 Written Statement Ex. 30 15A N.C.A.C. 13B .0702 .

by John Kase

Based upon careful consideration of the applicable law, testimony and evidence received during the contested case hearing as well as the entire record of this proceeding, the undersigned makes the following:

FINDINGS OF FACT

1. The Respondent’s Solid Waste Section administers the solid waste management program for the State of North Carolina. Regulated non-hazardous solid waste includes municipal solid waste, construction demolition waste, industrial waste, medical waste, land clearing and inert debris, white goods, scrap tires, and septage. (T. pp. 168-169).

2. The Respondent’s Solid Waste Section administers the septage management program in Chapter 130A, Article 9, and the regulations promulgated thereunder and codified at 15A NCAC 13B .0800 et. seq. ( Exhibits 19 & 25)

3. Septage is a solid waste defined in N.C.G.S. §130A-290(a)(32) as including domestic septage, which is the “liquid or solid material removed from a septic tank, cess pool, portable toilet, Type III marine sanitation device, or similar treatment works receiving only domestic sewage.” (T. p. 24)(Exhibit 22)

4. Mr. Ted Lyon is employed as a supervisor by the Respondent’s Solid Waste Section, Composting and Land Application Branch. Mr. Lyon is an expert and is qualified to testify as an expert about the interpretation and application of the septage management rules and statutes, the management and regulation of septage as a solid waste, septic tank systems, soil science, and the land application of septage. (T. pp. 14-22).

5. Septage contains bacterial and viral pathogens and must be properly handled and disposed of in order to protect the public health and the environment from direct or indirect contact with pathogens. (T. pp. 26-29) The septage management rules do not require that Respondent sample and test septage in order to show its pathogenic content. Scientific literature documents that septage contains pathogens. (T. p. 27) Domestic septage contains, in part, sewage, which consists of human waste and fecal matter. (T. pp. 22-23)

6. Respondent regulates and has authority to regulate the pumping of septage from septic tanks and the disposal of septage by land application or otherwise. (T. pp. 29-30, 32-33)

7. Petitioner has never been permitted by Respondent to operate a Septage Management Firm or a Septage Land Application Site. (T. pp. 31, 38)

8. Petitioner buys and rents mobile homes and other properties as part of his business. (T. p. 59)

9. Petitioner, Mr. Johnnie Burgess, owns a parcel of property located off Tallman Circle, Midway Park, Onslow County, North Carolina. (T. pp. 126-127; Exhibit 2). The parcel contains one house and four mobile homes. (Exhibit 2) The address of the house that Petitioner owns is 778 Tallman Circle. (T. pp. 120; 153; Exhibits 2 & 18)

10. On January 14, 2002, Petitioner rented his house at 778 Tallman Circle to a tenant. This house has a septic tank located in the backyard. A mobile home rented by Petitioner was also hooked up to this same septic tank. (T. pp. 60-62)

11. On January 14, 2002, Mr. Burgess sent his employee, Mr. Ed Crowley, to the house at 778 Tallman Circle to respond to his tenant’s complaint of a stopped-up toilet. (T.p. 133; Petitioner’s Response to Respondent’s First Request for Admissions, No. 4, filed 8/13/02)

12. Mr. Crowley pumped out the septic tank at the house. (T. pp. 133-134; Petitioner’s Response to Respondent’s First Request for Admissions, Nos. 5 & 6). Mr. Crowley discharged the septage into the drainage ditch on the property. (T. p. 133) The ditch runs from west to east in the middle of the property and then curves and runs south along Tallman Circle toward Highway 24, where it eventually empties into a creek. (T. pp. 126, 139; Exhibits 2 & 5)

13. The discharge of the septage into the ditch failed to meet the operational requirements for the disposal of septage by land application, or otherwise. (T. pp. 33, 38-39) The discharge and flow of the septage through the ditch occurred within the buffer zones that were established by the septage rules to protect the public health and the environment, including the setback requirements for residences, roads, and property boundaries. (T. pp. 33, 39, 186-187). The setback requirement for residences is 500 feet from the disposal area. (T. p. 33) There are eight to ten homes within 100 to 150 feet of the ditch into which the septage was discharged. (Exhibit 2)

14. Federal rules applicable to the disposal of septage in North Carolina require that septage be treated prior to its disposal in order to reduce pathogens and reduce the vector attraction of septage. Treatment typically consists of adding hydrated lime to the septage for at least 30 minutes in order to raise the PH level of the septage to 12. This process reduces the pathogens, although it doesn’t eliminate them, and is required by federal law. Petitioner and his employee, Mr. Crowley, did not treat the septage in accordance with these requirements prior to discharge of the septage directly into the ditch. (T. pp. 35-37; 133-134)

Witness Douglas’ Testimony

15. Mr. Thomas Douglas lives at 770 Tallman Circle, less than 100 yards from Petitioner’s property at 778 Tallman Circle. (T. pp. 58, 61)

16. On the afternoon of January 14, 2002, after arriving home from a doctor’s appointment, Mr. Douglas smelled a “bad smell.” He walked over to the Petitioner’s property to inspect the situation. Mr. Douglas’ mother reported that she had heard pumps running throughout the day. (T.pp. 63, 145)

17. Mr. Douglas saw Petitioner standing in or near the ditch shoveling weeds out of the ditch to help the septage flow. (T. p. 64) He saw Petitioner’s employee standing in the curve of the ditch raking out leaves. (T. pp. 64-65) Mr. Douglas saw where the septic tank lid had been dug up and saw the septage flowing through the ditch. (T. p. 65) Digging out the ditch facilitated the flow of the septage through the ditch and onto adjacent property south of Petitioner’s property. See Finding of Fact 32.

18. Mr. Douglas advised his mother to call the Onslow County Health Department, which she did at approximately 3 p.m. (T. pp. 66, 146)

19. Mr. Douglas had firsthand knowledge that the tenant who lived at Petitioner’s 778 Tallman Circle rental home property had ongoing problems with sewage backing up in the house. (T. p. 62) Approximately one week to ten days prior to January 14, 2002, the septic tank had been pumped out twice by a permitted pumper. (T. p. 68) Pumping costs approximately $ 100.00. (T. p. 68)

Witness Giese’s Investigation

20. Mr. Walter Giese, Mr. John Kase, and Mr. Andrew Quirk, employees of the Onslow County Health Department, responded to the Douglas’ complaint about the pumping of septage at Petitioner’s rental property. (T. pp. 88-89, 94)

21. Mr. Giese’s initial inspection revealed that the ditch contained solids and grease, as well as disturbed soil above the septic tank lid. (T. p. 90-93; Exhibits 10, 11, and 12) He saw effluent in the ditch and smelled an odor. It appeared to him that the septic tank had been pumped out into the ditch. (T. p. 90, 94)

22. Mr. Douglas came to the site. He told Mr. Giese that he had seen the Petitioner in the ditch with a shovel clearing out weeds to help the septage flow. (T. pp. 94, 100)(Exhibit 14)

23. Mr. Giese observed where the ditch had been partially cleaned out to facilitate the flow of the effluent away from the property. (T.p. 94)

24. During the discussion between Mr. Douglas and the Onslow County employees, it started to rain. (T. pp. 66-67) Mr. Douglas left the site and returned to his home prior to Petitioner arriving. (T. p. 67)

25. Petitioner subsequently arrived at the site. He initially told Mr. Giese that his employee had pumped out a hole beside the septic tank. (T. p. 95 ) Mr. Giese was suspicious of this explanation and asked Petitioner if he could open up the lid to the septic tank. (T. pp. 95-96, 101) Upon doing so, Mr. Giese discovered that the septic tank was practically empty and concluded that it had been pumped out and effluent discharged into the ditch on the property. (T. pp. 96-97; Exhibits 9, 13, 14) The tank had a 2900 gallon capacity. (T. p. 97)

26. After consulting his supervisor, Mr. Giese instructed the Petitioner to contact an approved septage pumper, have the ditches pumped, and lime the ditches. (T. p. 98) Petitioner carried out these instructions later that day. (T. p. 68, 99)

Witness Gallo’s Investigation

27. Mr. Joe Gallo, an Environmental Technician, responded on behalf of the Respondent to a report by the Onslow County Health Department of the pumping and discharge of the septage into the ditch at Petitioner’s property. (T. p. 124; Exhibit 1) On January 18, 2002, Mr. Gallo visited the site and took photos. (T. pp. 124, 136-141). He interviewed Mr. Crowley and the Petitioner, (T. pp. 130-135), Mr. Douglas, (T. pp. 144-146), and Mr. Giese and his co-workers. (T. pp. 142-146) Mr. Gallo obtained written statements from the witnesses. (T. pp. 148-154; Exhibits 14, 15, 16, 17, & 18)

28. Petitioner admitted to Mr. Gallo that his employee, Mr. Crowley, pumped out the septic tank and then discharged the septage into the ditch. (T. pp. 131-132) Petitioner claimed that his employee pumped out the tank so that he could snake from the inside of the tank back toward the house to unstop the toilet. (T. pp. 133-134) He also claimed that his employee was from Boston and did not know he was breaking the law. (T. p. 135) Petitioner stated that he would accept full responsibility for the events. (T. p. 134)

29. Based on his investigation, including Petitioner’s admissions, Mr. Gallo determined that there was a violation of 15A NCAC 13B .0817(a) for pumping a septic tank without a permit, and of 15A NCAC 13B .0819(c) for land applying septage at an unpermitted site by dumping it in the ditch on Petitioner’s property, where it flowed through adjacent properties. (T. p. 156).

30. It is Mr. Gallo’s practice to interview witnesses and obtain written statements from them as part of his effort to identify the proper responsible party and to avoid unfounded conclusions. It is also Mr. Gallo’s practice to assess the credibility of the witnesses that he interviews. (T. pp. 146-147)

31. Mr. Gallo determined that Mr. Douglas was credible. (T. p. 151) Mr. Douglas’ account of seeing Petitioner in the ditch with a shovel (T. pp. 144-146) was supported by Mr. Gallo’s observations of the lime along the ditch banks.

32. The lime was placed where the septage rose and flowed. (T. pp. 136-137) Exhibits 3-6 & 8 show the location of the lime in the ditch and along the ditch banks. Septage had backed up in the ditch to the west of the septic tank, indicating a blockage downstream. (T. pp. 140-141; Exhibit 8) Lime located high on the banks of the ditch at the curve also indicated a rising septage level probably due to a blockage. (T. p. 139; Exhibits 5 & 6) The location of lime along the ditch banks south of Petitioner’s property line indicated that the blockage was eventually cleared and that the septage flowed through the ditch that ran through three culverts on adjacent properties. (T. pp. 138-139)