STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CARTERET 07 EHR 1297
MARTHA AND CHARLES MORTON,Petitioners,
v.
N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
Respondent. / DECISION
A contested case hearing was heard in this matter January 28, 2008, at Lee House, Office of Administrative Hearings, Raleigh, North Carolina, before the Honorable Donald W. Overby, Administrative Law Judge. Petitioners Charles and Martha Morton appeared pro se. The Respondent, Department of Environment and Natural Resources (hereinafter known as DENR), was represented by John P. Barkley, Assistant Attorney General.
ISSUE
Did the Respondent properly deny Petitioners’ application for an improvement permit for their property in Carteret 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 July 5, 2007, application was made to the Carteret County Health Department (hereinafter CCHD) for an improvement permit for an on-site wastewater system to serve a four (4) bedroom home on Petitioners’ property, Lot 5, Bogue View Shores Subdivision (hereinafter “the site”), located in Carteret County, North Carolina.
2. On July 13, 2007, Ms. Amy Guthrie, an environmental health specialist with CCHD, conducted an initial 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. Ms. Guthrie made auger borings in two separate areas across the site and evaluated the soils from the borings to determine the suitability of the site for an on-site wastewater system.
3. In evaluating the auger borings, Ms. Guthrie 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.
4. Ms. Guthrie’s evaluation shows 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.
5. Ms. Guthrie’s evaluation also shows that, due to the soil wetness condition at less than 12 inches from the natural soil surface, fill could not be added to the site to bring the site into compliance. Pursuant to 15A NCAC 18A.1957(b).
6. Based on her evaluation, Ms. Guthrie determined that the site was classified as Unsuitable due to an unsuitable soil wetness condition less than twelve (12) inches from the natural ground surface and unsuitable fill material.
7. Ms. Guthrie could not find any other modified or alternative system that could be used on the site to change the classification from Unsuitable.
8. By letter dated July 16, 2007, Ms. Guthrie notified Petitioners that the site had been determined to be unsuitable due to the soil wetness condition less than 12 inches from the natural ground surface and unsuitable fill material, and that the request for an improvement permit was denied. The letter also advised of other options the Petitioners could consider and pursue as well as advising them of their right to an informal review of this decision and of their formal appeal rights.
9. Petitioners requested that a second opinion evaluation be performed by CCHD.
10. Mr. Robert McCabe, an environmental health specialist with CCHD, conducted a second opinion evaluation of the site on September 26, 2007.
11. Mr. McCabe initially looked at the landscape position of the site and determined that the lot was in a depression, which is an Unsuitable landscape position under the wastewater rules. He then did soil borings across the site to determine its suitability for an on-site wastewater system.
12. He determined that the site was unsuitable due a soil wetness condition less than 12 inches from the naturally occurring soil surface across the entire site by determining that the soil colors were Chroma 2 or less. Soil colors of Chroma 2 or less indicate saturated soils that are Unsuitable.
13. He found fill material to a depth of 6 to 18 inches above the natural soil surface across the site. No evidence was presented to show that the fill material was in place before July 1, 1977 as needed to meet the existing fill requirements in rule .1957(b)(2), and the depth of the fill material was insufficient because it was less than the 24 inches as required in the fill rule. The fill material also did not meet the requirements for new fill as the soil wetness condition was less than 12 inches below the natural ground surface. He therefore determined that the site did not meet the requirements for existing fill or new fill material under 15A NCAC 18A .1957(b) and was Unsuitable.
14. He found organic materials in the layer beneath the fill material. Organic material is Unsuitable under the rules as it prevents proper flow of effluent.
15. Mr. McCabe was qualified as an expert in the evaluation of sites for the installation of on-site wastewater systems.
16. Mr. McCabe’s ’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, the unsuitable fill material, the landscape position of the site in a depression and the organic material below the fill.
17. Mr. McCabe’s expert opinion was that no modified or alternative system could be used on the site.
18. Mr. McCabe’s expert opinion was that a wastewater system installed on the site would not function properly and would eventually fail.
19. Mr. Tim Crissman is the regional soil scientist for the Department of Environment and Natural Resources (DENR) who provides second opinion evaluations to local health departments in coastal North Carolina including Carteret County. Mr. Crissman evaluated Petitioners’ site On January 10, 2008.
20. Mr. Crissman was qualified as an expert in the evaluation of sites for the installation of on-site wastewater systems.
21. Mr. Crissman concurred with Mr. McCabe’s findings. At the request of CCHD, two pits were dug on the site for evaluation and Mr. Crissman evaluated the soils in the pits. He also found fill material that did not meet the requirements for existing fill and with organic layers beneath the fill that was causing the water table to “perk” into the fill. He testified that such conditions could lead to effluent backing up to the ground surface or inside the house.
22. Mr. Crissman also determined that the landscape position caused the lot to act as a drainage basin and was unsuitable.
23. Mr. Crissman found soil colors of chroma 2 or less at less than 12 inches from the natural soil surface. He testified that the landscape position contributed to the soil wetness condition and the formation of the organic materials.
24. Mr. Crissman found that the site was classified as Unsuitable due to the soil wetness condition less than 12 inches from the soil surface, the organic soils, unsuitable fill and landscape position.
25. Mr. Crissman also agreed that a system installed on the site could not function properly and would fail.
26. Mr. Crissman also testified that there were no options to use additional fill on the site due to the soil wetness condition at less than 12 inches. The wastewater rules prohibit the use of fill when the water table is less than 12 inches below the natural soil surface. Even if fill were allowable, the landscape position and organic materials would still make the site Unsuitable.
27. Mr. Crissman testified that in his expert opinion the site was classified as Unsuitable and that there were no other options for an on-site wastewater system on the site. He also testified that in his expert opinion a wastewater system installed on the site would fail.
28. At the close of the Respondent’s evidence, Respondent’s exhibits 1 through 6 were admitted into evidence.
29. Petitioners presented no testimony or any expert or other evidence to dispute the state’s evidence.
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 .1940 states in part that “(d)epressions shall be considered UNSUITABLE with respect to landscape position ...”.
3. 15A NCAC 18A.1941 (a)(4) states in “Organic soils shall be considered Unsuitable”.
4. 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.”
5. 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” and .1957(b)(2) states in part “(s)ubstantiating data are provided by the lot owner ... indicating that the fill material was placed on the site prior to July, 1977" and the “fill material placed on the site prior to July 1, 1977 shall have sand or loamy sand (Group I) for a depth of at least 24 inches below the existing ground surface”.
6. The scientific evidence and expert testimony 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 on the site in violation of 15A NCAC 18A .1942 and .1957(b). Therefore, the site was properly classified as UNSUITABLE.
7. The scientific evidence and expert testimony presented supported the conclusion that there was fill material on the site above the natural ground surface that was not shown by the owner to have been in place before July 1, 1977, was less than 24 inches, and the fill was on a site where the soil wetness condition was at less than 12 inches below the naturally occurring soil surface, in violation of 15A NCAC 18A .1957(b). Therefore, the site was properly classified as UNSUITABLE.
8. The scientific evidence and expert testimony presented supported the conclusion that there were organic soils on the site below the fill material in violation of 15A NCAC 18A .1941(a)(4). Therefore, the site was properly classified as UNSUITABLE.
9. The scientific evidence and expert testimony presented supported the conclusion that the landscape position of the site was a depression in violation of 15A NCAC 18A .1940. Therefore, the site was properly classified as UNSUITABLE.
10. 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.
11. 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 the site.
12. 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 or 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 recommended 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 DENR to make the final decision in this contested case is the State Health Director, Dr. Leah Devlin.
This the 2nd day of June, 2008.
______Donald W. Overby
Donald W. Overby
Administrative Law Judge
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