STATE OF NORTH CAROLINA
IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
00 EHR 0920
COUNTY OF PERSON
DUDLEY A. DAWSON,
Petitioner,
v.
N.C. DEPARTMENT
OF ENVIRONMENT
& NATURAL RESOURCES
(PERSON COUNTY HEALTH DEPT),
Respondent
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RECOMMENDED DECISION
On November 8, 2000, in Raleigh, North Carolina, Administrative Law Judge Melissa
Owens Lassiter heard this contested case.
APPEARANCES
Petitioner:
Dudley Dawson, pro se.
2424 Cottage Place
Greensboro, N.C. 27455
Respondent:
Judith Tillman
Assistant Attorney General
N. C. Department of Justice
Health and Public Assistance Section
P. O. Box 629
Raleigh, N.C. 27602-0629
ISSUE
Did the Respondent properly deny the Petitioner’s application for an improvement permit
for installation of a ground-absorption waste treatment and disposal system?
FINDINGS OF FACT
1.
The parties received notice of hearing more than 15 days before hearing, and each
stipulated on the record that notice was proper.
2.
During all times relevant to this case, Mr. Dudley Dawson (hereinafter the “Petitioner”)
and his spouse owned Lots 29 and 30, in the Rogerwood Cove subdivision in Person County,
North Carolina.
3.
On April 5, 2000, Petitioner applied for improvement permits for Lots 29 and 30 for
installation of conventional ground-absorption waste treatment and disposal systems.
A. Lot 29
4.
On May 27, 2000, Environmental Health Specialist Jan Jackson, who was performing
contract work for the Respondent, evaluated Lots 29 and 30 for the requested permits. At the
administrative hearing, Ms. Jackson was qualified as an expert in soils, and their evaluation for
ground-absorption waste disposal and treatment systems.
5.
During her evaluation, Ms. Jackson made five auger borings, evaluated the soil from such
borings, and documented such information on an evaluation sheet. (See Resp. Exh. No. 2) Ms.
Jackson found soils in four of the borings to be provisionally suitable, and one boring to be
unsuitable. (See Resp. Exh. No. 2) Based upon her soil evaluation, Ms. Jackson was especially
concerned whether Lot 29 had sufficient available space to install a conventional waste treatment
and disposal system, or an innovative system.
On the evaluation sheet for Lot 29, Ms. Jackson wrote “Needs layout” in the blank space
beside “Available Space (.1945)”. In the comment section of the evaluation sheet, Jackson
wrote, “System to be ultra shallow, possibly innovative, pending layout. Area is limited”.
Jackson did not determine an overall “site classification” (pursuant to 15A N.C.A.C.18A .1948)
of Lot 29. In other words, Jackson did not classify Lot 29 as suitable, provisionally suitable, or
unsuitable. (See Resp. Exh. No. 2) Jackson did not issue an improvement permit for Lot 29.
6.
On May 27, 2000, Jackson wrote a note to file on Lot 29. Such note stated:
Lot 29 needs layout. Mr. Dawson advised of insufficient area for 4
bedroom -- may be able to get 3-bedroom innovative system. He
will have Jimmy Lewis lay out. He was also advised that he could
appeal unsuitable letter and that a sand filter system on Lot 30 may
be an option.
(See Pet. Exh. No. 2; Respondent’s Exhibit No. 3),
7.
On June 19, 2000, Environmental Health Specialist Mike Cash conducted a second soil
evaluation of Lot 29. At the administrative hearing, Mr. Cash was qualified as an expert in soils,
and their evaluation for ground-absorption waste disposal and treatment systems. During his
June 19th evaluation, Cash made five auger borings on Lot 29, evaluated the soil from those
borings, and documented such information on an evaluation sheet. Pursuant to his evaluation,
Mr. Cash determined that Lot 29 was an “unsuitable” site for the installation and performance of
a ground-absorption waste treatment and disposal system. Such determination was based upon
the site’s landscape position and topography, shallow soil depth to saprolite, soil texture, and
insufficient available space for a ground-absorption waste treatment and disposal system.
(Resp. Exh. No. 4)
8.
In his five borings, Mr. Cash found soil depths to saprolite of 16 inches, 22 inches, 26
inches, 27 inches, and 16 inches, respectively. In the first profile for Lot 29, Cash found the soil
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structure and texture to be silty clay/saprolite mix with angular blocking within the first 16
inches of soil, with 50 percent or more saprolite beginning at a depth of 16 inches.
In the second profile for Lot 29, Mr. Cash found the soil structure and texture to be silty
clay with saprolite and angular blocking within the first 22 inches of soil. He also found the soil
consisted of 50 percent or more saprolite beginning at a depth of 22 inches. In the third profile
for Lot 29, Mr. Cash found the soil structure and texture to be silty clay with saprolite and
angular blocking within the first 26 inches of soil. He also found the soil consisted of 50 percent
or more saprolite beginning at a depth of 26 inches. The fourth profile was the same as the third,
and the fifth soil profile was the same as the first. (See Resp. Exh. No. 4)
9.
In assessing the topography of four of his five profiles for Lot 29, Mr. Cash noted the
existence of a “side slope.” He found a pronounced ridge located in the projected location of the
proposed house, and found steep slopes on both Lots 29 and 30. The well-defined or steep
slopes, gullies, and dropoff caused by the pronounced ridge would make it difficult to install a
conventional ground-absorption waste treatment and disposal system on Lot 29.
10.
Pursuant to 15A N.C.A.C. 18A .1945, Mr. Cash also determined that Lot 29 was
“unsuitable” as it lacked adequate space to install an initial waste treatment and disposal system,
and lacked adequate space for a repair area. Mr. Cash opined that he considered all possible
alternatives for a system for Lot 29, but did not know of any that would work properly given the
limitations of Lot 29.
11.
Based upon his cumulative findings in evaluating Lot 29, Mr. Cash designated the “site
classification” of Lot 29 “unsuitable” pursuant to 15A N.C.A.C. 18A .1948.
12.
On June 19, 2000, Mr. Cash wrote a note to the file on Lot 29 stating:
Visited site for evaluation of soils for permit to install septic tank
system. Area previously evaluated by Jan Jackson (contract
worker) and found to be unsuitable as to soil depth with a limited
area of soils that may be used for a modified/shallow placed
system. Spoke with Ms. Jackson previously about site. She stated
that area was limited to a small area and may actually not be
sufficient for system and repair area. Having spoke with Ms.
Dawson on 6-16-00, I agreed to do some additional soils work and
make a decision as to permitability. On this date a complete site
evaluation was done to include several borings ... and a small area
of usable soils were located and flagged. This area was not
sufficient in space for the installation of a sewage treatment and
disposal system (in ground) for a 3BR residence. Will have Fred
Smith (Reg. Soil Spec.) to advise on site.
(Resp. Exh. No. 5)
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13.
Upon Mr. Cash’s request, on June 20, 2000, Respondent’s Regional Soil Scientist Fred
Smith and Mr. Cash visited Lots 29 (and 30). In examining these lots, Mr. Smith focused on
addressing Mr. Cash’s reservations about the suitability of the soil and soil depths. Smith
performed 2 auger borings on Lot 29 to determine the soil properties of that lot. Based upon
these borings, Smith determined that the soil was too shallow for a ground-absorption waste
treatment and disposal system.
14.
On June 20, 2000, Mr. Cash verbally notified Petitioner of Respondent’s final evaluation
and conclusions regarding the eligibility of Lot 29 for an improvement permit. On June 21,
2000, Respondent notified Petitioner in writing that it was denying Petitioner an improvement
permit because Lot 29, Rogerwood Cove was unsuitable for a ground-absorption waste treatment
and disposal system. Lot 29 was unsuitable for such a system due to:
1.
2.
3.
4.
Unsuitable soil depth to saprolite (Rule .1943)
Unsuitable soil characteristics (Morphology)(Rule .1941)
Unsuitable topography and landscape position (Rule .1940)
Insufficient available space (Rule .1945)
Respondent advised Petitioner that these severe soil or site limitations could cause
premature system failure, thus leading to the discharge of untreated sewage on the ground
surface, in surface waters, directly into the ground water, or inside Petitioner’s structure. It
further advised Petitioner that neither site modifications nor modified, innovative, or alternative
systems would overcome the severe conditions on Lot 29.
Based upon the listed reasons, Respondent classified Lot 29 Rogerwood Cove as
UNSUITABLE and denied to issue Petitioner an improvement permit for such site. Respondent
then advised Petitioner of his right to appeal their decision to the Office of Administrative
Hearings. (See Resp. Exh. No. 6)
15.
On June 27, 2000, Petitioner filed a petition for a contested case hearing with the Office
of Administrative Hearings appealing Respondent’s denial of his improvement permit
applications for Lots 29 (and 30). (See also Finding of Fact No. 29).
16.
On August 25, 2000, Mr. Smith conducted a formal evaluation of Lots 29 and 30. At the
administrative hearing, Mr. Smith was qualified as an expert in: (1) soils and their evaluation for
septic tank systems, (2) modified and alternative waste treatment systems, and (3) soil science
physics.
During his August 25th evaluation, Smith made four auger borings, evaluated the soil
from these borings, and documented such information on an evaluation sheet. Two of the
borings indicated Lot 29 was unsuitable, and two indicated it was unsuitable/provisionally
suitable. In the four auger borings he performed, Smith found soil depths to saprolite of 3
inches, 6 inches, 24 inches and 22 inches. (See Resp. Exh. No. 13)
17.
In the first profile on Lot 29, Mr. Smith found the soil to be clay loam with subangular
blocking in the first three inches of soil, and found saprolite beginning at a depth of 3 inches. In
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his second profile, Mr. Smith found that the auger hit rock at six inches. In his third profile, Mr.
Smith found the soil to be silty clay with angular blocking from 4 to 24 inches, and found
saprolite beginning at 24 inches. In his fourth profile, Mr. Smith found the soil’s structure and
texture to be silty clay with angular blocking from 4 to 22 inches, and found saprolite beginning
at 22 inches. (See Resp. Exh. No. 13)
18.
In all four profiles for Lot 29, Mr. Smith noted the existence of a “side slope” on Lot 29.
(See Resp. Exh. No. 13)
19.
Mr. Smith also determined that Lot 29 was unsuitable pursuant to 15A N.C.A.C. 18A
.1945, because Lot 29 did not have adequate space for an initial system, and lacked adequate
space for a repair area. (See Resp. Exh. No. 13)
20.
Based upon the shallow soil depth to rock and saprolite, and the lack of available space
for an initial system and repair area, Mr. Smith designated Lot 29’s overall “site classification”
as “unsuitable” pursuant to 15A N.C.A.C. 18A .1948. (See Resp. Exh. No. 13) At the
administrative hearing, Mr. Smith opined that he did not know any possible alternative systems
that would work properly on Lot 29 given the lot’s limitations.
21.
In classifying the soil of Lot 29, Smith, Jackson, and Cash all used the field test method
defined in 15A NCAC 18A .1900 et seq to determine the structure, texture, and mineralogy of
the soil.
22.
At the administrative hearing, both Mr. Cash and Mr. Smith opined that a groundabsorption waste treatment and disposal system installed on Lot 29 would fail. They further
opined that such failure could pose a threat of groundwater contamination and surface eruptions
of untreated sewage that could either contaminate surface waters and/or cause “run off” into the
lake adjacent to the property.
B. Lot 30
23.
On May 27, 2000, Ms. Jackson made two auger borings on Lot 30, evaluated the soil
from such borings, and documented such information on an evaluation sheet. She determined
the soils in these two borings to be “unsuitable” soil for a ground-absorption waste treatment and
disposal system. (See Pet. Exh. No. 10 and Resp. Exh. No. 8)
In her first profile, Ms. Jackson found saprolite at a depth of 23 inches. In her second
profile, Ms. Jackson found massive soil structure at 23 inches of depth, and expansive
mineralogy at 23 inches of depth. Because the soil conditions of Lot 30 were so unsuitable and
the amount of available space so limited, Jackson could conclusively determine Lot 30
“unsuitable” without making more than 2 auger borings. Based upon the shallow soil depth to
saprolite, the slopes and gullies, expansive clay mineralogy, and massive soil structure, Jackson
designated the “site classification” of Lot 30 as “unsuitable” pursuant to 15A N.C.A.C. 18A
.1948. Lastly, Jackson did not know of any possible alternative system that would work properly
on Lot 30 given the lot’s severe limitations.
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24.
By letter dated May 27, 2000, Ms. Jackson advised Petitioner that Respondent was
denying his application for an improvement permit for Lot 30, because Lot 30 was unsuitable for
installation of a ground-absorption sewage system. In this letter, Jackson advised that Lot 30 was
unsuitable for 2 reasons. First, Lot 30 was unsuitable pursuant to 15A NCAC 18A .1940(d) &
(e) due to the complex slope patterns and depressions Jackson observed on Lot 30. Secondly,
Lot 30 was unsuitable pursuant to 15A NCAC 18A .1941(2)(E), and (3)(B) because of the
“unsuitable soil – saprolite and expansive clay” found on the lot. (See Pet. Exh. No. 11 and
Resp. Exh. No. 9) Such letter also advised Petitioner of his right to appeal such decision to the
Office of Administrative Hearings.
25.
On June 19, 2000, Environmental Health Specialist Mr. Mike Cash also evaluated the
soils on Lot 30. He also found the soils “unsuitable” for a ground-absorption waste treatment
and disposal system.
26.
On June 19, 2000, Mr. Cash wrote a note to the file on Lot 30 that stated:
Met with owner on site for 2nd opinion eval. Bored several areas
near proposed home location at various topo elevations. Site was
determined to be unsuitable as to soil depth to saprolite (16"-18" at
most locations). Saprolite material was also unsuitable for use for
a ground absorption system. Discussed options with Mr. Dawson
and agreed to have site evaluated by the Regional Soil specialist on
6-20-00.
(Resp. Exh. No. 10 - Evidence at the administrative hearing established Cash’s evaluation
actually occurred on June 19, 2000, not June 12, 2000, as written in this exhibit).
27.
On June 20, 2000, Mr. Cash visited both Lots 29 and 30 with Mr. Smith. In his June 20,
2000 note to the file on Lot 30, Cash noted:
Visited site with Fred Smith (Reg. Soil Spec.). . . . Bored in a few
sites on lot. Above findings (shallow soil depths, etc.) were
confirmed by Mr. Smith and lot denial was upheld. Copy of file &
denial letter will be sent to owner ASAP.
28.
Mr. Cash’s June 22, 2000 note to the file on Lot 30 also indicated that a denial letter was
faxed to the owner and a copy of the file on this lot was prepared for mailing. However, no such
document was presented to this Court as an exhibit for this case.
29.
As noted earlier, on June 27, 2000, Petitioner filed a petition for a contested case hearing
appealing Respondent’s denial of an improvement permit for Lots 29 and 30.
30.
On August 25, 2000, Mr. Fred Smith formally evaluated Lots 29 and 30. On Lot 30, he
made three auger borings, evaluated the soil from these borings, and documented such
information on an evaluation sheet. Mr. Smith determined that (1) the results from all three
borings, such as the existence of saprolite, and (2) Lot 30’s landscape position of slopes and
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gullies, definitively made Lot 30 “unsuitable” for installation of a ground-absorption waste
treatment and disposal system. (See Resp. Exh. No. 11 &14)
31.
In his three auger borings, Smith found soil depths to saprolite of 10 inches, 10 inches,
and 15 inches. In the first profile on Lot 30, Mr. Smith found the soil structure and texture to be
silty loam and granular structure from 0 to 10 inches. He also found saprolite and silty clay loam
beginning at a depth of 10 inches, and massive soil structure at a depth of 10 inches. (See Resp.
Exh. No. 11 & 14)
32.
In his second profile on Lot 30, Mr. Smith found: (1) soil structure and texture to be silty
loam, and granular structure from 0 to 10 inches, (2) saprolite, silty clay loam, and silty clay
beginning at 10 inches of depth, and (3) massive soil structure at a depth of 10 inches. In his
third profile on Lot 30, Mr. Smith found (1) soil structure and texture to be silty loam and
granular structure from 0 to 10 inches, (2) silty clay and subangular blocking from 10 to 15
inches, (3) saprolite and silty clay beginning at 15 inches, and (4) massive soil structure at a
depth of 15 inches. (See Resp. Exh. No. 11 & 14)
33.
Mr. Smith also determined that Lot 30 was an “unsuitable” site because of the depth of
Lot 30. In all three profiles of Lot 30, Mr. Smith found a “12% concave slope” existing in the
landscape position of the lot. He determined at least 7 gullies or v-shaped valleys existed in the
soil in the lower 2/3 of Lot 30. The upper elevation of Lot 30 was “unsuitable” because saprolite
existing in that area. In addition, the saprolite nature of the soil made the soil depth insufficient
for a lower pressure pipe system, subsurface irrigation system, pretreatment system or other
alternative system. (See Resp. Exh. No. 11, Resp. Exh. No. 14, and Smith testimony)
34.
Based upon his cumulative findings, Mr. Smith determined that Lot 30 was unsuitable
pursuant to 15A N.C.A.C.18A .1945, because it did not have adequate space for an initial
system, and lacked adequate space for a repair area. (See “Available Space (.1945)” on Resp.
Exh. No. 14).
35.
In classifying the soil of Lot 30, Smith, Jackson and Cash all used the field test method as
defined in 15A NCAC 18A .1900 et seq to determine the structure, texture, and mineralogy of
the soil.
36.
At the administrative hearing, both Jackson and Smith opined that a ground-absorption
waste treatment and disposal system installed on Lot 30 would fail. They further opined that
such a failure could pose the threat of groundwater contamination and surface eruptions of
untreated sewage that could either contaminate surface waters and/or cause “run off” into the
lake adjacent to the property.
Petitioner’s evidence
37.
At hearing, Petitioner argued that Person County Health Department should now issue
him improvement permits for Lots 29 and 30 because: (1) Person County Health Department
issued a “provisional suitability” site classification for Lots 29 and 30 in 1989, (2) the applicable
state and local requirements and laws had not changed since then, (3) Lots 29 and 30 sites had
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not changed since the 1989 classification, and (4) he relied upon a 1989 Person County Health
Department provisional site classification of both lots to purchase Lots 29 and 30.
To support this argument, Petitioner presented two letters that were dated March 1, 1989,
and were signed by Jimmy C. Clayton, R.S. Environmental Health Specialist on Person County
Health Department letterhead. Regarding Lots 29 and 30 respectively, these letters essentially
stated that a site and soil evaluation was done on Lots 29 and 30 Rogerwood Cove Subdivision,
Person County, and were found “PROVISIONALLY SUITABLE and may be utilized for a
ground absorption sewage treatment and disposal system consistent with the rules but with
moderate limitations.” These letters were addressed “To Whom It May Concern.” (See Pet. Exh.
No. 8 and Pet. Exh. No. 9).
38.
The issues in this case are defined by the issues stated in Petitioner’s June 27, 2000
appeal; to wit, whether Respondent (1) deprived Petitioner and his spouse/co-owner of the value,
use, and enjoyment of Lots 29 and 30, Rogerwood Cove, Person County, (2) otherwise
substantially prejudiced Petitioner’s rights, (3) acted erroneously, (4) failed to use proper
procedure, or (5) acted arbitrarily or capriciously, when it classified Lots 29 and 30 as unsuitable
for ground-absorption waste treatment and disposal systems and denied Petitioner’s April 4,
2000 improvement permit applications for Lots 29 and 30. These are the sole issues in this
contested case. For that reason, the undersigned will not consider Petitioner’s argument outlined
in above Finding of Fact 37. As a result, Petitioner’s exhibits relating to such argument are not
relevant to the issues in this contested case, and will not be considered in determining the
outcome of this case.
Even if Petitioner’s argument regarding the 1989 classification letters had merit,
Petitioner failed to present any evidence explaining how the 1989 soil and site evaluations were
performed, who performed such evaluations, and if Petitioner produced a plat of Lots 29 and 30
to Person County Health Department to receive any improvement permits. Petitioner also failed
to prove the 1989 state statutes, administrative code, or local requirements are the same or
substantially as the 2000 versions. Furthermore, Petitioner did not present evidence that in 1989,
such a site classification would be valid indefinitely. Lastly, the believability of this argument is
rendered null by Petitioner’s reapplication for improvement permits in the year 2000.
39.
Testifying on his own behalf, the Petitioner challenged the methodology used by the State
of North Carolina to evaluate sites for ground-absorption waste treatment and disposal systems.
Petitioner, however, presented no expert testimony or other evidence to support his contentions
that the methodology used by the state is inappropriate or inadequate.
40.
According to Mr. Fred Smith, North Carolina’s soil evaluation methodology is based on
soil taxonomy established by the National Cooperative Soil Survey and is used in many states.
The National Cooperative Soil Survey is a program of the National Resources Conservation
Service under the U.S. Department of Agriculture.
41.
The Petitioner presented no witnesses or other evidence challenging site and soils
analyses of the Respondent’s three expert witnesses. Specifically, Petitioner presented no
evidence of any soil borings or site and soil analyses/findings as to: (1) topography and
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landscape position; (2) soil characteristics (morphology); (3) soil wetness; (4) soil depth; (5)
restrictive horizons; and (6) available space as required by 15A N.C.A.C. 18A .1939 to
determine whether a site is suitable, provisionally suitable, or unsuitable.
42.
The Petitioner attempted to challenge Respondent’s evidence of slopes, gullies, and
dropoffs on lots 29 and 30. He introduced a roughly drawn map (Pet. Exh. No. 7) that he
contended was an accurate topographic map of such lots. However, the map bore no
professional seal or stamp and no indication of who drew it. In fact, Petitioner’s testimony
revealed that the Petitioner and his brother drew the map for “practice.”
43.
In both of its denial letters (Resp. Exh. No. 6 and Resp. Exh. No. 9), Respondent advised
Petitioner of his right to hire a private consultant to evaluate Lots 29 and 30 to try to develop a
plan under which Petitioner’s sites could be reclassified PROVISIONALLY SUITABLE.
44.
However, Petitioner presented no evidence of any consultant’s modifications, plans, or
designs for ground-absorption sewage treatment and disposal systems that would function
satisfactorily on Lot 29 or on Lot 30.
45.
Ms. Jackson advised Petitioner that a sand filter system on Lot 30 may be an option. (See
Pet. Exh. No. 2 and Resp. Exh. No. 3) However, Petitioner failed to present any testimony or
other evidence that he had followed Jackson’s suggestion and explored an innovative system,
such as a sand filter system, for Lot 30.
46.
The Petitioner presented no testimony or other evidence suggesting that either Lot 29 or
Lot 30 is suitable for a ground-absorption waste treatment and disposal system.
CONCLUSIONS OF LAW
1.
The parties are properly before this Court and the undersigned has subject matter and
personal jurisdiction over this contested case.
2.
N. C. Gen. Stat. § 130A-335(b) provides that all wastewater systems shall be regulated by
the Respondent under rules adopted by the Commission of Health Services. N.C. Gen. Stat. §
130A-333 et seq., and 15A NCAC 18A .1900 et seq. set forth the rules governing groundabsorption waste treatment and disposal systems.
3.
15A N.C.A.C. 18A .1939 states:
(a)
The local health department shall investigate each proposed site.
The investigation shall include the evaluation of the following factors:
(1) topography and landscape position;
(2) soil characteristics (morphology);
(3) soil wetness;
(4) soil depth;
(5) restrictive horizons; and
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(6) available space.
(b)
Soil profiles shall be evaluated at the site by borings or other
means of excavation to at least 48 inches or to an UNSUITABLE characteristic
and a determination shall be made as to the suitability of the soil to treat and
absorb septic tank effluent. Applicants may be required to dig pits when necessary
for proper evaluation of the soil at the site.
(c)
Site evaluations shall be made in accordance with Rules .1940
through .1948 of this Section. Based upon this evaluation, each of the factors
listed in Paragraph (a) of this Rule shall be classified as SUITABLE, (S),
PROVISIONALLY SUITABLE (PS), or UNSUITABLE (U).
4.
15A N.C.A.C. 18A .1943(a) states in relevant part, “Soil depths to saprolite, rock, or
parent material less than 36 inches shall be classified UNSUITABLE as to soil depth.”
5.
15A N.C.A.C. 18A .1940 states in relevant part:
(d) Complex slope patterns and slopes dissected by gullies and ravines shall be
considered UNSUITABLE with respect to topography.
(e) Depressions shall be considered UNSUITABLE with respect to landscape
position except when the site complies essentially with the requirements of this
Section and is specifically approved by the local health department.
6.
15A N.C.A.C. 18A .1941(a)(2)(E) states in relevant part: “Soils which are massive and
exhibit no structural peds within 36 inches of the naturally occurring soil surface shall be
considered UNSUITABLE as to structure.”
7.
15A N.C.A.C. 18A .1941(a)(3)(B) states:
EXPANSIVE CLAY MINERALOGY -- Soils which have either very firm or
extremely firm moist soil consistence, or have either very sticky or very plastic
wet soil consistence, are considered to have predominantly 2:1 clay minerals
(including mixed mineralogy clays) and shall be considered UNSUITABLE as to
clay mineralogy.
8.
15A N.C.A.C. 18A .1945 states:
(a) Sites shall have sufficient available space to permit the
installation and proper functioning of ground absorption sewage
treatment and disposal systems, based upon the square footage of
nitrification field required for the long-term acceptance rate
determined in accordance with these Rules.
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(b) Sites shall have sufficient available space for a repair area
separate from the area determined in Paragraph (a) of this Rule.
The repair area shall be based upon the area of the nitrification
field required to accommodate the installation of a replacement
system as specified in Rule .1955, .1956, or .1957 of this Section.
Prior to issuance of the initial Improvement Permit for a site, the
local health department shall designate on the permit the original
system layout, the repair area, and the type of replacement system.
9.
15A N.C.A.C. 18A .1947 DETERMINATION OF OVERALL SITE SUITABILITY
provides:
All 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 will 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.
(Emphasis added.)
10.
Respondent properly classified Lot 29 as unsuitable with respect to: (1) topography and
landscape position pursuant to 15A N.C.A.C. 18A .1940; (2) soil characteristics pursuant to 15A
N.C.A.C. 18A .1941; (3) soil depth to saprolite pursuant to 15A N.C.A.C. 18A .1943; and (4)
available space pursuant to 15A N.C.A.C. 18A .1945.
11.
Respondent properly classified Lot 30 as unsuitable with respect to: (1) topography and
landscape position pursuant to 15A N.C.A.C. 18A .1940; (2) soil characteristics pursuant to 15A
N.C.A.C. 18A .1941; (3) soil depth to saprolite pursuant to 15A N.C.A.C. 18A .1943; and (4)
available space pursuant to 15A N.C.A.C. 18A, .1945.
12.
A preponderance of substantial evidence proves that Respondent properly classified Lots
29 and 30 of Rogerwood Cove subdivision in Person County, North Carolina, as unsuitable for
ground-absorption waste treatment and disposal systems pursuant to the North Carolina laws and
the Commission of Health Services rules governing ground-absorption waste treatment and
disposal.
13.
The Respondent’s denial of Petitioner’s improvement permit applications for installation
of ground-absorption waste treatment and disposal systems for Lots 29 and 30 was made
properly and in accordance with proper procedure, was not arbitrary and capricious, did not
deprive Petitioner of property, and did not otherwise substantially prejudice Petitioner’s rights.
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RECOMMENDED DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned
recommends NCDENR AFFIRM Respondent’s decision to classify Petitioner’s Lots 29 and 30
in Rogerwood Cove subdivision (Person County, North Carolina), as unsuitable and deny
Petitioner’s improvement permit applications for ground-absorption waste treatment and disposal
systems.
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, N.C. 27699-6714, in accordance
with N.C.G.S. 150B(36)(b).
NOTICE
North Carolina Department of Environment and Natural Resources (“NCDENR”) will
make the final decision in this contested case. N.C. Gen. Stat. §150B-36(a) requires NCDENR
to give each party an opportunity to: (1) file exceptions to this Recommended Decision, and (2)
present written arguments to those in the agency that will make the final decision. N.C.Gen.
Stat. §150B-36(b) requires NCDENR to: (1) serve a copy of the Final Decision on all parties,
and (2) furnish a copy to the parties’ attorney of record and the Office of Administrative
Hearings.
This the 15th day of February, 2001.
_______________________________
Melissa Owens Lassiter
Administrative Law Judge
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