STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF STOKES 03 EHR 0156

)

DANIEL W. BULLA III, )

)

Petitioner, )

)

v. )

) DECISION

ENVIRONMENTAL HEALTH SECTION )

STOKES COUNTY )

HEALTH DEPARTMENT, )

)

Respondent. )

______)

This case was heard before Administrative Law Judge James L. Conner, II, on June 23, 2003, in High Point, North Carolina. Respondent submitted Proposed Findings of Fact and Conclusions of Law on September 3, 2003.

APPEARANCES

For Petitioner: Petitioner Daniel W. Bulla, III, represented himself

118 Ravenwood Court

King, N.C. 27021

For Respondent: Judith Tillman

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, N.C. 27602-0629

EXHIBITS

Petitioner: No exhibits

Respondent: Nos. 1, 2, 3 (illustration only), 4, 5 (illustration only) and 6

ISSUE

Whether the respondent properly issued an intent to suspend the construction permit and denied an operation permit for a septic system on property designated PIN No. 6916-00-01-4883 in Stokes County, owned by Petitioner Daniel W. Bulla, III.

Based upon a preponderance of the admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. The petitioner, Mr. Daniel W. Bulla, III, is and during all relevant periods of time related to this case has been the owner of property designated as PIN No. 6916-00-01-4883 in Stokes County, N.C.

2. Kevin Neal is a regional soils specialist employed by the N.C. Department of Environment and Natural Resources, Division of Environmental Health. Mr. Neal has 10 years of experience in the field of wastewater treatment. At the hearing of this matter, he was tendered by the respondent and qualified as an expert in soils and their evaluation, in septic systems, including alternative, modified, innovative and experimental systems, and in soil science physics.

3. Heather Hicks was, at all times relevant to this decision, environmental health supervisor at the Stokes County Health Department and an authorized agent of the N.C. Department of Environment and Natural Resources, Division of Environmental Health, for purposes of issuance, denial, suspension and revocation of wastewater permits.

4. Andy Adams is quality assurance program team leader for the N.C. Department of Environment and Natural Resources, Division of Environmental Health. Mr. Adams has 22 years of experience in the field of wastewater treatment. At the hearing of this matter, he was tendered by the respondent and qualified as an expert in soils and their evaluation, in septic systems, including alternative, modified, innovative and experimental systems, and in soil science physics.

5. On December 30, 2002, Mr. Neal went with a Stokes County Health Department employee to the petitioner’s property in Stokes County for a final inspection of the petitioner’s septic system before an operational permit was to be issued for the septic system. As Mr. Neal walked the trenches of the newly installed system, he observed soil colors which caused him to be concerned about whether the soils on the site were suitable for a septic system.

6. Mr. Neal returned to the site later on December 30, 2002, to do further evaluation of the site. He became more concerned about the suitability of the soils and the lack of sufficient space on the property for a septic system and required repair area.

7. On January 2, 2003, Mr. Neal wrote a memo to Ms. Hicks, setting out guidance for her to explore options for Mr. Bulla for wastewater treatment on his property.

8. Ms. Hicks made at least six visits to Mr. Bulla’s property, repeatedly evaluating it and looking for options for wastewater treatment on the site.

9. Mr. Neal returned to the property with Ms. Hick on two occasions, seeking options for wastewater treatment on the site.

10. At Mr. Neal’s request, Mr. Adams visited the property to see if he could identify any options for wastewater treatment on the site.

11. Mr. Neal, Ms. Hicks and Mr. Adams all concluded that the soils were unsuitable for a wastewater treatment system and that there was insufficient space for a required repair area.

12. Mr. Neal and Ms. Hicks considered whether any type of alternative system would work on Mr. Bulla’s property and concluded that none would.

13. Mr. Neal and Ms. Hicks testified that in their professional opinion, a septic system on the petitioner’s property would fail if put into use.

14. The Petitioner Mr. Bulla called no witnesses and stated to this court that he felt the respondent made the right decision when it issued an intent to suspend the construction permit and denied an operation permit for a septic system on his property.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes.

2. N.C. Gen. Stat. § 150B-34(a) requires that the administrative law judge “shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” Due regard to the demonstrated knowledge and expertise of the agency was established through the qualification of Mr. Neal and Mr. Adams as expert witnesses.

3. The preponderance of the evidence in this case shows that soils conditions and space limitations make the property in question unsuitable for a septic system and for any alternative on-site wastewater treatment system.

4. The respondent properly issued an intent to suspend the construction permit and denied an operation permit for a septic system on property designated PIN No. 6916-00-01-4883 in Stokes County, owned by Petitioner Daniel W. Bulla, III.

DECISION

The respondent’s decision to issue an intent to suspend the construction permit and to deny an operation permit for a septic system on property designated PIN No. 6916-00-01-4883 in Stokes County, owned by Petitioner Daniel W. Bulla, III, is AFFIRMED.

ORDER

It is hereby ordered that the agency furnish a copy of the FINAL DECISION to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36.

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in N.C. Gen. Stat. § 150B-36. The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. § 150B-36.

The agency that will make the final decision in this contested case is the North Carolina Department of Environment and Natural Resources.

This the 10th day of September, 2003.

______

James L. Conner, II

Administrative Law Judge