STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF PENDER 03 EHR 0046
John and Elizabeth Kaylor,Petitioners,
v.
N.C. Department of Environment and Natural Resources,
Respondent. / DECISION
A contested case hearing was heard in this matter on May 16, 2003, in the Aldermen’s Chamber, City Hall, in Southport, North Carolina, before the honorable James L. Conner, II, Administrative Law Judge. Petitioners John and Elizabeth Kaylor appeared pro se. The Respondent Department of Environment and Natural Resources was represented by John P. Barkley, Assistant Attorney General. Respondent filed its Proposed Findings of Fact and Conclusions of Law on June 15, 2005.
ISSUE
Did the Respondent properly deny Petitioners’ application for an improvement permit for installation of an on-site wastewater system on their property in Pender 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 June 2, 1999, John and Elizabeth Kaylor, the Petitioners in this matter (hereinafter “Petitioners”) applied to the Pender County Health Department (hereinafter “PCHD”) for an improvement permit to allow installation of a wastewater system on their property located in Pender County, North Carolina. The application was for a wastewater system to serve a two-bedroom home.
2. On June 9, 1999, Mr. Wilfred Nixon, an environmental health specialist with PCHD, conducted a site evaluation of the Petitioners’ 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.
3. Mr. Nixon 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. Mr. Nixon determined 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. 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).
6. By letter dated July 7, 1999, PCHD notified Petitioners the site had been determined to be unsuitable due to the soil wetness condition and that the request for an improvement permit was denied. The letter also notified Petitioners of the 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.
7. Petitioners hired Mr. James Gulley, a soil scientist in training working for Land Management Group, a private environmental consulting firm, to evaluate their property and determine whether the site was in compliance with the wastewater laws and rules.
8. Mr. Gulley concurred in the determination that chroma two or less colors appeared in the soils on the site; however, Mr. Gulley believed that the colors were possibly relic and installed monitoring wells on the site to collect data to determine soil wetness in accordance with the provisions of 15A NCAC 18A .1942 in effect at the time.
9. Mr. Gulley collected data and submitted a proposal to PCHD on May 15, 2001 based on the data collected. Part of the data collected showed that rainfall on Petitioners’ site was only at 28 percent recurrence frequency for the period of the monitoring well testing.
10. PCHD sent the data to Mr. Tim Crissman, Regional Soil Specialist, DENR, to review to determine whether the date showed a soil wetness condition that would allow use of the site. Mr. Crissman determined, using the standard for review at the time of 48 hours, that the data showed a soil wetness condition at less than 12 inches and that an improvement permit could not be issued. Mr. Crissman notified PCHD of this determination by letter dated September 19, 2001.
11. Mr. Gulley and Mr. Crissman testified that following this determination, the provisions of Rule .1942 were changed to provide a new system for collection and analysis of monitoring well data to determine soil wetness on a site. A temporary rule was initially adopted in April 2002, followed later by a slightly different method of determining soil wetness in the permanent rule. At the time of the hearing, the permanent rule had been adopted but was not yet effective, but the Respondent stipulated that the provisions of the less stringent permanent rule would be applied in this case. Both versions of the rule required at least a 30 percent recurrence frequency for the long term rainfall index for the site before monitoring data could be considered sufficient on its own for the determination of soil wetness. If the a site received less than 30 percent, the data could only be used in conjunction with a modeling program, DrainMod, to determine what the likely soil wetness would be on the site over a thirty year period.
12. Mr. Gulley and Mr. Crissman testified that since the rainfall index on Petitioners’ property for the monitoring period was only at 28 percent, the data could not be used without running the DrainMod program. Mr. Gulley stated that the cost of running DrainMod was approximately $1,000.00, which Petitioner would have to pay for and which would be conducted by the consultant. Petitioners did not authorized running DrainMod for their site.
13. Mr. Gulley and Mr. Crissman testified that no alternative determination of soil wetness could be done on the site without the use of DrainMod and that evaluation of the site without DrainMod showed a soil wetness condition that would not allow permitting of the system under the provisions of Rule .1942.
14. Mr. Gulley and Mr. Crissman also testified that they found the soils on the site to be Group III soils. They testified that use of drainage in Group III soils would require a pretreatment system under the wastewater rules. Mr. Gulley testified that the only way avoid a pretreatment system in Group III soils would be the submission of data under Rule .1948(d) to show that a system could still function properly on the site even if it did not meet the normal requirements of the rules; however, he testified that he was not aware of any such proposal in Group III soils having been approved by DENR. Both testified that even the pretreatment system could not be used unless DrainMod showed the soil wetness condition to be more than 12 inches below the natural soil surface.
15. Mr. Gulley and Mr. Kaylor both testified that the pretreatment system proposed would cost at least $15,000.00 and that a DrainMod study would cost approximately $1,000.00. Mr. Kaylor also testified that even if were to have the consultants run DrainMod and obtain approval for the pretreatment system, the Kaylors could be required to attach to a sewer line that may be installed in their part of the county within a matter of few years, requiring the abandonment of the on-site system.
16. Mr. Gulley and Mr. Crissman were both qualified as experts in the evaluation of sites for installation of on-site wastewater systems.
17. Mr. Crissman’s expert opinion was that the Petitioners’ site was classified as Unsuitable for installation of a wastewater system and that no alternative, modified, experimental or innovative wastewater system could be used on the site due to the determination of the soil wetness condition less than 12 inches from the natural soil surface and that the soil wetness determination could not be changed under Rule .1942 unless Petitioner had an analysis of the monitoring well data done using DrainMod. He also stated that using DrainMod would not guarantee that Petitioners would be able to obtain an improvement permit.
18. Mr. Crissman and Mr. Gulley both testified that the language in the rules governing the use of fourteen consecutive days for analysis of the well monitoring data was not applicable for the Petitioners because the rainfall index on their property was less than 30 percent (28 percent for Petitioners property) during the monitoring period and that this was the case under either the temporary or the permanent change to Rule .1942.
19. Petitioners testified on their own behalf, had their expert witness testify, cross-examined the Respondent’s witnesses and presented exhibits including statements from neighbors regarding the wastewater systems on their properties and descriptions of neighboring properties that had wastewater systems. However, Petitioners presented no scientific evidence or expert witnesses to contradict the evidence presented by Respondent, and the evidence from their expert supported the evidence from the Respondent.
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 .1942 states in part that:
(a) Soil wetness conditions caused by seasonal high-water table, tidal water seasonally saturated, perched water table, tidal water, seasonally saturated soil or by lateral water movement shall be determined by field evaluation for soil wetness colors and field observations, and may be assessed by well monitoring, computer modeling, or a combination of monitoring and modeling as required by this Rule. All sites shall be evaluated by an Authorized Agent of the Department using Basic Field Evaluation Procedures pursuant to Paragraph (b) of this Rule.
(b) Basic Field Evaluation Procedures:
(1) A soil wetness condition shall be determined by the indication of colors of chroma 2 or less (Munsell Color Charts) at =2% of soil volume in mottles or matrix of a horizon or horizon subdivision. However, colors of chroma 2 or less which are relic from minerals of the parent material shall not be considered indicative of a soil wetness condition.
(c) Site Suitability as to Soil Wetness: Initial suitability of the site as to soil wetness shall be determined based upon the findings of the Basic Field Evaluation Procedures made pursuant to Paragraph (b) of this Rule. Sites where soil wetness conditions are greater than 48 inches below the naturally occurring soil surface shall be considered SUITABLE with respect to soil wetness. Sites where soil wetness conditions are between 36 and 48 inches below the naturally occurring soil surface shall be considered PROVISIONALLY SUITABLE with respect
to soil wetness. 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. Sites where a soil wetness condition is determined based upon the observation or indication of lateral water movement within 48 inches of the naturally occurring soil surface shall be considered UNSUITABLE, except when such water can be intercepted in accordance with 15A NCAC 18A .1956(4). . . .
(d) Alternative Procedures for Soil Wetness Determination: The Owner or the Owner’s Legal Representative (Applicant) shall have the opportunity to submit documentation that the soil wetness condition and resultant site classification be alternately determined and reclassified by direct monitoring, computer modeling, or a combination of monitoring and modeling, in accordance with a Direct Monitoring Procedure, Monitoring and Modeling Procedure, or Modeling Procedure made pursuant to Paragraphs (e), (f), or (g) of this Rule. This determination shall take precedence over the determination made pursuant to the Basic Field Evaluation Procedures [Paragraph (b) of this Rule], when the conditions of Paragraphs (e), (f), or (g) of this Rule are met. Determination by one of these Monitoring or Modeling procedures shall also be required when: . . .
(7) Interpretation Method for Direct Monitoring Procedure: The following method of determining depth to soil wetness condition from water surface observations in wells shall be used when the 60-day weighted rainfall index for the January through April monitoring period equals the site’s long-term (historic) 60 day weighted rainfall index for January to April rainfall with a 30 percent recurrence frequency (wetter than the 9th driest year of 30, on average).
(f) Monitoring and Modeling Procedure: A combination of monitoring and modeling may be used to determine soil wetness condition utilizing the following monitoring procedures and interpretation method. . . .
(2) The ground water simulation model DRAINMOD shall be used to predict daily water levels over at least a 30 year historic time period after the model is calibrated using the water surface and rainfall observations made on-site during the monitoring period.
4. 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). Under later adopted changes to Rule .1942, the monitoring data collected for Petitioners’ site could not be used because the long term rainfall index for the site during the monitoring period did not meet the prerequisite 30 percent recurrence frequency. The only way to use the monitoring data would be to use the provision of .1942 that allowed analysis of the data using the DrainMod computer modeling program. Petitioners elected not to use DrainMod. Even if the Petitioners chose to use DrainMod, the site may still have been determined to have an unsuitable soil wetness condition. Therefore, based on the data available and the applicable rules, the site was properly classified as UNSUITABLE.