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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MCDOWELL 02 EHR 0887

GERALD MAX TONEY and )

LYNN N. TONEY )

Petitioner, )

)

v. ) DECISION

)

N.C. DEPARTMENT OF ENVIRONMENT )

And NATURAL RESOURCES (MCDOWELL )

CO. HEALTH DEPT. )

Respondent. )

This contested case was heard before Chief Administrative Law Judge Julian Mann, III on April 6, 2003 in Hendersonville, North Carolina and on April 14, 2003 in Marion, North Carolina.

APPEARANCES

For Petitioner: J. Thomas Davis

Attorney at Law

142 East Main Street

Forest City, North Carolina 28043

For Respondent: Judith Tillman

Assistant Attorney General

North Carolina Department of Justice

PO Box 629

Raleigh, North Carolina 27602-0629

EXHIBITS

Petitioner: Nos. 1 & 2 (includes Deposition Exhibits A & B)

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

ISSUE

Whether the Respondent properly revoked Petitioner’s improvement permit, certificate of completion, and existing system permit for an on-site waste treatment and disposal system for Lot 25-O in the Lakeview Pointe Subdivision in Nebo, McDowell County, North Carolina based upon the grounds stated in Respondent’s correspondence, dated April 29, 2002 from Stuart B. Black, R.S. to Gerald Toney, (Petitioner) dated April 29, 2002. (Respondent’s Exh. #2).

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

FINDINGS OF FACT

1. Stewart Black is a soil scientist with the Rutherford County District Health Department. Mr. Black has in excess of 17 years of service in this field. Mr. Black was tendered and qualified as Respondent’s expert in soils and their evaluations, septic systems and in the layout and design of septic systems, including alternative, modified, innovative and experimental systems.

2. Mr. Black was first contacted by Mr. Bracie Bobbitt, the developer, in the summer of 1997 for purposes of evaluating and approving an existing system permit for Lot 25-O (hereinafter “O”). Mr. Black made an actual visit to the site in question eight or nine times. On 7/10/97, Mr. Black issued an Existing System Permit by and on behalf of the Rutherford-Polk-McDowell District Health Department for Lot 0, “Carefree Point”, which is the system that is the subject matter of this contested case. (Respondent’s Exh. 1)

3. At the time of issuing the permit of 7-10-97, Mr. Black was not aware of any easement that existed for the septic tank for the adjacent Lot 25-P (hereinafter “P”) on Lot 0, the subservient tract, for the dominant tract, Lot P. Mr. Black became aware of this easement at some point in the year 2002 and was so informed by the county building inspector.

4. Mr. Black, upon the discovery of this easement, then issued a letter to Gerald Toney (Petitioner) dated April 29, 2002 revoking the permit issued on 7/10/97 because of the reasons stated therein. (Respondent’s Exh. 2). Gerald Max Toney (Petitioner) and wife Lynn N. Toney are the record owners of Lot O. ( Respondent’s Exh. 5)

5. Paragraph #1 of Respondent’s Exhibit 2 is quoted as follows:

The septic systems for lots 25-O and 25-P are located so close together that they may even overlap. This gives them little chance of functioning properly without failing.

6. Paragraph # 2 of Respondent’s Exhibit 2 is quoted as follows:

The septic system for Lot 25-O does not meet the horizontal setback required from the septic system for Lot 25-P at the time of its installation or now. The North Carolina Sewage Laws and Rules in effect then were 10A NCAC 10A.1900. Now, they are15A NCAC 18A.1900. The applicable rule is 1950 (a)(17) in each case.

7. Paragraph #3 of Respondent’s Exhibit 2 is quoted as follows:

There is no repair areas available for replacement septic system drainfields as required in rule .1945 of both the current sewage laws and rules (15A NCAC 18A.1900) and the laws and rules (10A ACAC(sic)10A .1900) in effect when the septic system for lot 25-O was installed. The repair areas as shown on the Certificate of Completion for lot 25-O is now unavailable due to the presence of the septic system drainfield for Lot 25-P, the presence of the septic system easement for Lot 25-P, and grading/filling on lot 25-O for the house and driveway.

8. Paragraph #4 of Respondent’s Exhibit 2 is quoted as follows:

The septic system for Lot 25-O is at least partially within the septic easement on Lot 25-O for Lot 25-P.

9. The horizontal separation required of adjoining septic nitrification fields is 20 feet.

10. Mr. Black experienced difficulty identifying the drainfields for the two systems. Mr. Black did, however, locate the tanks for each system. He then physically measured the separation distance between the tanks. Mr. Black utilized a tile probe to physically locate the tanks on the two tracts of property in question. This probe makes a distinctive noise upon contact with hollow concrete in the ground. Mr. Black flagged the tanks on the property in question and flagged the easement to the best of his ability in an area of the drain fields, “that they should take up.” Mr. Black described this as his best approximation. Mr. Black’s testimony was that he is not sure and does not know whether he located the boxes on the septic tank systems for Lots P and O. Mr. Black did not find any of the pipes in the drain fields for lot P. Mr. Black also testified that he was unable to locate the drain fields for lot O but did locate gravel. Mr. Black was unable to determine the source of this gravel as being from a drain field or some other source. Mr. Black did not locate the drain fields of Lot P. Mr. Black also did not physically locate the drain fields for Lot O.

11. The tanks for Lots P and O were separated by a distance of 22 feet according to Mr. Black’s testimony and as noted in Respondent’s Exhibit 2. Mr. Black also described this separation as only 10 feet apart longitudinally or on a contour.

12. According to Mr. Black’s professional opinion, based upon his prospective belief as to the location of the nitrification fields for both lots, if the two systems were placed in use simultaneously they would not dispose of the waste properly. If the systems malfunctioned, the effluent would come to the top of the ground and sewage would be on the top of the ground.

13. According to Mr. Black’s expert testimony, there would be no alternative system available for use on this lot.

14. In Respondent’s Exhibit No. 3, Mr. Black endeavored to identify the two septic systems as “his best approximation” where the drainfields likely are, and that this approximation is based upon permits for surrounding lots. Respondent’s Exhibit 3 was admitted for purposes of illustrating Mr. Black’s testimony only. Respondent’s Exhibit 3 did not establish the location of the nitrification fields with the requisite certainty to establish in the record of this contested case the actual location of the nitrification fields. Based upon drainfields for surrounding lots, these drainfield lines are typically 60 feet long. The permit for Lot O indicates the drainfield lines are 60 feet long, 3 feet in length, with 9 foot centers. (Petitioner’s Exhibit 1) Mr. Black noted on Respondent’s Exhibit 3 that his approximation was that the tanks were seven to eight feet apart longitudinally, 23 feet apart laterally and 22 feet diagonally. Also, Respondent’s Exhibit 3 is marked as “ [a]ll drainfield locations are approximate based on old permits for Lot O and lots to its north.”

15. In 1991, Jeter Irvin Laws, former environmental specialist with Respondent signed Petitioner’s Exhibit 1, entitled “Rutherford-Polk-McDowell Health District Improvement Permit.” Petitioner’s Exhibit 1 is the attachment to Respondent’s Exhibit 1 and is referenced on Respondent’s Exhibit 1 as “see attached Certificate of Completion.”

16. Petitioner’s Exhibit 1 is the “Certificate of Completion.” The completion of this improvement permit with date and signature indicates that the septic system was installed and approved. Petitioner’s Exhibit 1 contains a sketch of the septic system for Lot O. (Petitioner’s Exh.1)

17. According to the deposition of Jeter Irvin Laws ( Petitioner’s Exhibit 2 placed into evidence by stipulation and admitted) dated March 11, 2003, Mr. Laws testified as follows:

Q. After you laid off the septic system or designed a septic system for the landowner, did you give them any kind of permit or anything?

A. Yes, sir. I gave them an improvements permit.

Q. And then after they put the septic tank in, did you inspect it or anything?

A. Yes, sir. They’d call me and I’d go back and check the septic tank to make sure that it was put in properly.

Q. Would that be before they covered the drain field up?

A. Yes, sir. Yes, sir.

(Petitioner’s Exh. 2, Page 9, Lines 12-22)

18. Mr. Laws was accepted, without objection, as Petitioner’s expert in the laying off and design of septic systems and in regard to inspection of them after their completion. (Petitioner’s Exh. 2, Page 11, Lines 2-5)

19. Mr. Laws was involved in about 50 of the septic systems designs at Lake View Pointe. ( Petitioner’s Exh. 2, Page 11, Lines 15-24).

20. Mr. Laws laid out Petitioner’s Lot O (Petitioner’s Exhibit 2, Page 12) (Petitioner’s Exhibit 1 and Plaintiff’s Deposition Exhibit A are identical).

21. Mr. Laws testified as follows in relationship to the septic system in Lot O:

Q. Let me show, Mr. Laws, Plaintiff’s Exhibit No. A and ask you if that is the permit that you issued for Lot 25-O at the time you designed that system?

A. Yes, sir. That’s it. That’s the one that I designed. However, that house, I believe they’ve got it up for a square on up above it, and the drain field may be just a little bit closer to the road than it’s indicating here because I remember telling Bracey (or Bracie) that he would have to pump for a repair area. They would have to pump in a tank and pump to a repair area in that area.

Q. Is that your signature on the permit?

A. Yes, sir. That’s my signature there.

Q. After the septic system was put in did you go back and inspect it then?

A. I did. The Beams put in the septic tank and I went back and inspected it.

Q. And after you inspected it, is that when you signed off on the bottom there… Certificate of Completion?

A. Yes, sir. This right here. And it was effective, it looks like 8 -- looks like a -- 5/91.

Q. At the time you inspected it, did it appear to be in compliance at that time?

A. Yes, sir. I measured the gravel and I measured the length. And I notice this is 3 by 60 feet. There may be a little bit of discrepancy in the 5 foot difference, but I laid out three lines, 3 foot long and 60 feet – I mean 3 foot wide and 60 long.

Q. What was usually laid off for two bedrooms here?

A. For two bedrooms was two lines, 3 by 60.

Q. Okay. I notice that you’ve got two bedrooms for this one?

A. Yeah. Two bedrooms for this and I laid it out 3, 60 feet long. Yes, sir.

(Petitioner’s Exh. 2, P 13, Lines 9-25, P 14, Lines 1-16).

22. Mr. Laws testified as to whether or not he issued the Certificate of Completion as follows:

Q. I assume by your signing off on this Certificate of Completion at the bottom, that the system met all the requirements of the County at that particular time?

A. At that particular date, it did.

(Petitioner’s Exh. 2, P. 15, Lines 9-12)

23. Petitioner’s Exhibit 1 also contains the remarks “will have to pump to repair.” This statement indicates that there was inadequate space in the drain field area so that another tank would have to be inserted and then pumped from that tank to a repair area.

(Petitioner’s Exh. 2, P. 13, Lines 16-18)

24. The excavated trench for this system is 3 feet wide and there were three trenches. These three trenches are at a minimum 6 feet apart with 6 feet of earth separating the drain fields.

25. The reference in Petitioner’s Exhibit 1 to the nitrification field is “540 sq. ft.” This is a reference to the square footage for the drainfield trench bottom. That figure is based upon the length of line from the house divided by the loading rate of the soil. It does not include the areas between the trenches. The 6 feet between the trenches was the same required in 1991 as of the date of the hearing.

26. The drainfields are to conform to the contours of the land and may curve.

27. A setback from any septic system must be 20 feet from any other nitrification field.

28. Mr. Black was not able to locate the permit for Lot 25-P in order to determine the repair area. Mr. Black could not locate any septic tank permit in Respondent’s files or in Mr. Black’s files for Lot-P. Mr. Black did not have any involvement in the installation of the septic system on Lot P and Mr. Black is unaware as to whether any other employee of Respondent’s was involved.

29. A repair area is an area to add drain fields in the event that the existing drain fields fail. This area must be owned and controlled by the permittee and is required to be a hundred percent of the initial fields.

30. Mr. Black did not determine whether there was a repair area for Lot 25-P. Mr. Black determined that there is not adequate repair area space for Lot 25-O.

31. An alternative pre-treat system has three advantages: increase the loading rate up to 50 percent; reduce the vertical separation; and reduce the horizontal setback.

32. Mr. Black explained that the nitrification fields do not have to be three 60 foot fields but there are other alternatives that could produce an acceptable nitrification field so long as it equaled 180 feet in length. When the subject permit for Lot O was issued, if there had been any change in the configuration of the nitrification fields, according to Mr. Black’s testimony, this would have been noted on the permit as this was the common practice. According to Mr. Black’s testimony, the current practice, upon such modification, would be to have issued a new permit.