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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CRAVEN 00 EHR 0803

Howard L. Hardy
Petitioner
vs.
County of Craven Department of Health
Respondent / )
))
)))) / DECISION

A contested case hearing was heard in this matter on August 22, 2001, at the Craven County Courthouse in New Bern, North Carolina, before the honorable Beecher R. Gray, Administrative Law Judge. Petitioner Howard Hardy appeared pro se. Respondent Department of Environment and Natural Resources was represented by John P. Barkley, Assistant Attorney General.

At the close of all evidence, the undersigned directed Respondent to draft a decision within thirty (30) days, with any arguments Respondent desired to make. Respondent’s draft decision was received June 23, 2006.

ISSUE

Did Respondent properly deny Petitioner’s application for an improvement permit for a site on 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. The parties received notice of hearing by certified mail more than fifteen (15) days prior to the hearing and each stipulated on the record that notice was proper.

2. On May 16, 2000, Howard Hardy, 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 Hwy 17 Business in Vanceboro, Craven County, North Carolina. The application was for a wastewater system to serve a three-bedroom home.

3. On May 31, 2000, Mr. Jonathan Stucky, an Environmental Health Specialist (EHS) with CCHD, conducted a site evaluation of Petitioner’s property 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. Stucky made approximately three augur borings in separate quadrants covering the site and evaluated the soils from the borings to determine the suitability of the site.

4. Mr. Stucky 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.

5. In evaluating the augur borings, Mr. Stucky 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. Stucky found the same conditions in all auger borings across the site. Mr. Stucky also found soil characteristics that indicated a massive subsoil on the property.

6. Mr. Stucky determined that the site was unsuitable due to the presence of the massive subsoil, in violation of 15A NCAC 18A .1941, and a soil wetness condition at less than 12 inches from the natural soil surface, in violation of 15A NCAC 18A .1942.

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

9. By letter dated June 26, 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 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.

10. On October 31, 2000, Dr. Robert Uebler, Regional Soil Specialist, DENR, evaluated the site as a second opinion evaluation in consultation with CCHD.

11. 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 spring. 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 Petitioner’s property at less than 12 inches from the naturally occurring soil surface.

12. Dr. Uebler also noted that he found 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.

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

14. 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.

15. Dr. Uebler’s expert opinion was that Petitioner’s site was unsuitable for installation of a wastewater system and that no alternative or modified wastewater system could be used on the site. Dr. Uebler testified that he had been involved in research projects in Craven County attempting to find other types of wastewater systems using removal and replacement of the soil on a site, or large amounts of fill, to compensate for unsuitable soil conditions or soil wetness. He testified that the research projects testing such methods resulted in failure of the wastewater systems.

16. Petitioner submitted no scientific evidence or expert witnesses to contradict the evidence presented by Respondent.

17. 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.”

18. 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.”

19. 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.”

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. The scientific evidence presented supported the conclusion that the soils on the property contained a massive subsoil, indicating an unsuitable soil in violation of 15A NCAC 18A .1941. Therefore, the site was properly classified as UNSUITABLE.

3. 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, 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.

4. 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.

5. 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.

6. 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.

DECISION

Respondent’s decision to classify Petitioner’s site as UNSUITABLE and to deny issuance of an improvement permit for the site is supported by the evidence and is 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 26th day of June, 2006.

______

Beecher R. Gray

Administrative Law Judge