STATE OF NORTH CAROLINA
IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
00 EHR 1016
COUNTY OF PERSON
ELIZABETH H. RIGGS,
Petitioner,
v.
PERSON COUNTY
HEALTH DEPARTMENT
ENVIRONMENTAL HEALTH
PROGRAM,
Respondent
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RECOMMENDED DECISION
A Contested Case Hearing was heard in this matter on April 17, 2001, in Roxboro, North
Carolina, before the Honorable Beecher R. Gray, Administrative Law Judge. Attorney Ronnie P.
King represented the Petitioner, Elizabeth H. Riggs. Assistant Attorney General Judith Tillman
represented the Respondent Department of Environment and Natural Resources.
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?
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 stipulated on the record that notice of hearing was proper.
2.
Elizabeth H. Riggs (hereinafter “Petitioner”) is the owner of a lot in Person County, N.C.,
designated as lot No. 13 in Rock Point subdivision. Mrs. Riggs purchased the lot in February
1999.
3.
The Petitioner, through her husband, Gregory D. Riggs, applied for an improvement
permit on June 8, 2000, for the Person County site. The Petitioner wanted a permit for the
installation of a conventional or modified conventional ground-absorption waste treatment and
disposal system.
4.
Pursuant to the Petitioner’s application, Mike Cash, an environmental health specialist
with the Person County Health Department, Division of Environmental Health, first evaluated
the Petitioner’s site on June 8, 2000. Mr. Cash evaluated the site in accordance with the North
Carolina laws, specifically North Carolina General Statute § 130A-333 et seq., and the
Commission of Health rules governing sewage treatment and disposal, specifically Title 15A,
Subchapter 18A, of the North Carolina Administrative Code, Section .1900 and following.
5.
15A NCAC 18A .1947 states:
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.
6.
To evaluate the soils, Mr. Cash made three documented auger borings and evaluated the
soil from the borings. He found unsuitable topography and landscape position pursuant to rule
.1940; unsuitable soil depth to saprolite pursuant to rule .1943; and insufficient available space
for the installation of a ground absorption sewage treatment and disposal system and for a repair
area pursuant to rule .1945.
7.
Mr. Cash made a second visit to the site on June 16, 2000, accompanied by Person
County Environmental Health Supervisor Janet Clayton. Realtor Clyde Kelly met Mr. Cash and
Mrs. Clayton at the site on this occasion. On June 16, 2000, Mr. Cash and Mrs. Clayton did two
more auger borings and found soils with the same characteristics as those described in Paragraph
No. 6 of this Recommended Decision.
8.
Mr. Cash and Mrs. Clayton returned to lot No. 13, Oak Point subdivision, on June 20,
2000. Also present during that visit were the Petitioner’s husband, Gregory D. Riggs; Fred
Smith, the regional soil scientist for the N.C. Department of Environment and Natural Resources;
and Realtor Clyde Kelly. On this occasion, a backhoe dug two pits for evaluation by Mr. Smith.
The pits revealed a shallow depth of saprolite to parent rock material. Mr. Smith examined the
soils in the pits not only for a conventional or modified conventional system but also for an
alternative system pursuant to 15A NCAC 18A .1956. Mr. Smith concluded and explained to all
present that the soil characteristics were unsuitable for any ground-absorption waste treatment
and disposal option.
9.
In a letter dated June 21, 2000, Mr. Cash notified the Petitioner in writing that lot No. 13,
Rock Point subdivision, is unsuitable for a ground-absorption waste treatment and disposal
system and notified him of his appeal rights.
10.
The Petitioner timely filed a Petition for a Contested Case Hearing.
11.
At hearing, the Petitioner presented as an exhibit an improvement permit written for Lot
13, Rock Point subdivision, in 1988 by environmental health specialist Randy Barnett, who is
now retired. The permit was dated August 29, 1988, and stated on its face that it would become
void after three years.
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12.
Mr. Barnett testified on behalf of the Petitioner that he had evaluated the soils of Lot 13,
Rock Point subdivision, and found them to be suitable for a ground-absorption waste treatment
and disposal system.
13.
Mr. Barnett had no recollection of whether he filled out a soils evaluation sheet that
would indicate whether he did any soil borings; how many borings he took, if any; and how he
came to the conclusion that the soils on Lot 13, Rock Point subdivision, were suitable for a
ground-absorption waste treatment and disposal system.
14.
The Petitioner offered no documentation to support Mr. Barnett’s conclusion that the
soils on Lot 13, Rock Point subdivision, were suitable for a ground-absorption waste treatment
and disposal system.
15.
The Petitioner also presented the testimony of Mr. Jimmy Clayton, who was Mr.
Barnett’s supervisor at the time Mr. Barnett wrote the improvement permit dated August 29,
1988.
16.
r. Clayton had no recollection of whether he did any soil borings on Lot 13 in Rock Point
subdivision.
17.
he Petitioner presented no expert witnesses to testify about the soils on Lot 13 in Rock
Point subdivision.
18.
At hearing the Respondent presented the testimony of Mr. Cash, Mrs. Clayton and Mr.
Smith. Mrs. Clayton was qualified as an expert in soils and their evaluation for groundabsorption waste disposal and treatment systems. Mr. Smith was qualified as an expert in soils
and their evaluation for ground-absorption waste treatment and disposal systems, in modified
and alternative waste treatment systems, in soil science physics and in the laws and rules
governing sewage treatment and disposal systems.
19.
Mr. Cash, Mrs. Clayton and Mr. Smith testified that, based on their evaluations, the
Petitioner’s site was unsuitable for the installation of a ground-absorption waste treatment and
disposal system. Mr. Cash cited rules 15A NCAC 18A .1940, .1943 and .1945. Mrs. Clayton
cited rules .1940 and .1943. Mr. Smith cited rules .1940, .1943, .1945 and .1956.
20.
r. Smith testified that he carefully examined the soils in backhoe pits pursuant to 15A
NCAC 18A .1956(6) to determine if the saprolite on the site would accommodate any kind of
alternative on-site waste treatment and disposal system. He concluded that it would not.
21.
r. Cash, Mrs. Clayton and Mr. Smith testified that, in their opinion, a ground-absorption
waste treatment and disposal system installed on Petitioner’s site would fail and would pose the
threat of groundwater contamination, surface eruptions of untreated sewage that could
contaminate surface waters, and health risks for people.
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22.
he Respondent entered as Respondent’s exhibits Nos. 2 and 7 the soils evaluations sheets
prepared by Mr. Cash and Mr. Smith respectively for Lot 13 in Rock Point subdivision. The two
documents together show notes on six separate soil borings and show that all six borings
indicated that the lot’s soils are unsuitable for a ground-absorption waste treatment and disposal
system.
CONCLUSIONS OF LAW
1.
A preponderance of substantial evidence introduced at hearing supports a conclusion that
the Respondent properly classified the Petitioner’s site, Lot 13, Rock Point subdivision, in
Person County, as unsuitable for an on-site ground-absorption waste treatment and disposal
system pursuant to the North Carolina laws and the Commission of Health Services rules
governing on-site waste treatment and disposal.
2.
preponderance of substantial evidence supports a conclusion that the Respondent
properly determined the site is unsuitable for a conventional or modified conventional system
with respect to unsuitable topography and landscape position pursuant to rule .1940; unsuitable
soil depth to saprolite pursuant to rule .1943; and insufficient available space for the installation
of a ground absorption sewage treatment and disposal system and for a repair area pursuant to
rule .1945. Likewise, a preponderance of substantial evidence supports a conclusion that the site
is unsuitable for an alternative system pursuant to rule .1956(6).
3.
The Respondent’s decision to deny the Petitioner’s application for a permit for
installation of a ground-absorption waste treatment and disposal system was made pursuant to
proper procedure and was not arbitrary and capricious.
RECOMMENDED DECISION
The Respondent’s decision to classify the Petitioner’s site as unsuitable and to deny the
Petitioner’s application for an improvement permit for a ground-absorption waste treatment and
disposal system 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, N.C. 27699-6714, in accordance
with N.C.G.S. 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 that will make the final decision. N.C.G.S. 150B-36(a).
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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 agency that will make the final decision in this contested case is the North Carolina
Department of Environment and Natural Resources.
This the 18th day of May, 2001.
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Beecher R. Gray
Administrative Law Judge
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