STATE OF NORTH CAROLINA IN THE OFFICE OF



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.

33. With the application for a separate permit, the permittee initially provides an application with an accompanying plat such as a tax map, and on the plat an indication of where a home is to be constructed. Initially, on the plat or tax map there is no drawing showing the system to be installed. This map may have such a drawing but most applicants are not concerned about the location of the septic tank at that point.

34. The actual indication of the type of system and location is first shown in the improvement permit stage of the application.

35. When under current standards, an authorization of construction is issued, it is at that point that the type and location of the system is specified, i.e., a layout of what is to be installed. Any change to this designation should be approved and noted on the permit.

36. According to Mr. Black’s testimony, the Respondent has explored every alternative for this site including a pretreatment system. In his expert opinion, no alternative system would work on the site.

37. Lot P has an existing structure on this property and a septic system. Any permit that may have been issued for Lot P was not revoked. According to Mr. Black’s testimony, the reason why Lot P permit was not revoked was to await the outcome of the contested case hearing on Lot O; that there has been a offer made by Lot P to buy the property and the Respondent is hopeful that there will be a resolution based upon the purchase of that property and it will then be a moot point. In addition, it’s easier to revoke a permit before a house is built because there’s less value there before the house is built than afterwards and that, “two wrongs don’t make a right.”

38. Mr. Black testified that “following up on the other (Lot P), that may happen.” The system on Lot P is not failing. According to Mr. Black’s opinion, the septic system on Lot P would fail if the system for Lot O was approved.

39 Mr. Black contacted an engineer who was trying to devise a system for the Petitioner. The engineer was Dana Bolden of McGill and Associates, Asheville, North Carolina.

40 Joe Lynn is a soil scientist with the Department of Environment Health and Natural Resources since May of 1991. Prior to that, he was an environmental specialist with Catawba County. He has approximately 18 and a half years of total experience in environmental health. Mr. Lynn 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. Mr. Lynn testified that his “best finding” indicated that the existing system on Lot O violated the setback as to the foundation of the proposed structure. Also, the separation distance between the two systems would not be met.

41. There was a pumping station on another lot that would require a 20 foot separation; row cuts require 15 foot setback.

42. As to a repair area for Lot O, it was Mr. Lynn’s opinion that the existing system for Lot O did not permit enough spare space to be available for a repair area because of the 20 foot separation requirement from the existing system on Lot P.

43. According to the testimony of Mr. Lynn, he looked at the site for all possible alternatives including pretreatment systems, alternative systems, modified systems and it is Mr. Lynn’s testimony (“feeling”) that there is no system available for Lot O as to an onsite system.

44. In addition, it was Mr. Lynn’s testimony that there was no option of any kind except for a service discharge permit that would have to be approved by the Division of Water Quality into Lake James which is a doubtful possibility, or to acquire an easement on an adjacent parcel of land, within a reasonable distance, to put the drainfields which would require a pumping system. This would require the pursuit of another property owner, and according to Mr. Lynn, he is unaware of the property owner’s pursuing these types of options.

45. Mr. Lynn’s opinion was that a surface discharge into Lake James would not be a feasible option. Mr. Lynn is unaware of any other surface water permit discharges in the surrounding area.

46. Respondent’s Exhibit 4 is a letter from Mr. Lynn to Mr. Black dated July 19, 2002. Relevant portions are quoted as follows:

On June 4 you and I investigated Lot O, section III, Lakeview Point subdivision. We located all or parts of two existing on-site wastewater systems, measured the setbacks and tried to find any potential areas for use as on-site wastewater systems or repair areas. After this investigation, I concur with your findings and I agree that the existing permit for Lot O should be revoked.

47. Mr. Lynn’s determinations and opinions are based upon the same limitations as Mr. Black as to what Mr. Black was able to determine as to the location of the nitrification drain fields.

48. According to Mr. Lynn’s testimony, he interpreted the setbacks and setback requirements. The setback requirements run from the nitrification fields, the tank itself, the pipe that connects to the distribution device, and the nitrification trenches themselves. The building code addresses the requirements for the pipe from the house to the tank and so the Respondent does not concern itself with those requirements. There must be a minimum of two feet of pipe from the septic tank box to the nitrification trenches. This pipe may be in excess of two feet but may not be less. There is no maximum length requirement for this pipe.

49. The hearing was concluded on March 6, 2003 by a site visit and view of the lot in question.

50. In regard to Respondent’s Exhibit No. 5, according to Mr. Black’s testimony, the first consideration of a setback requirement would be a required setback of 50 feet from the water’s edge with the initial measurement made in the southwest corner of Lot O. The next required setback would be from the drain field easement as depicted in Respondent’s Exhibit No. 5. The estimated distance of the drainfield easement as identified in Respondent’s Exhibit No. 5, is approximately 28 feet wide. These two setbacks requirements are combined to measure 78 feet (50 feet water setback and 28 foot easement width.) The next setback is the initial main field requirement which would equal 21 feet. The next setback is the repair area. As the repair area, it would have to be set back at least 6 feet from the initial drain field. The next setback would be a 10 foot setback from the property line. From the back property line, the total measurement must equal 136 feet. The lot according to Respondent’s Exhibit 5 is 102 feet. (102.17 feet), leaving a deficit of approximately 34 feet. There lacks 34 feet to permit a drain field and repair area on the subject lot without intruding upon the easement.

51. According to Mr. Black’s testimony, if land is disturbed on a lot, then the disturbed land can create problems for a septic system and such an example of this type of problem would be the existence of fill dirt in some instances. According to Mr. Black’s opinion, if the system existing on Lot O hypothetically intrudes upon the easement and, if the Lot O system were to be excavated and removed, it would impact the ability of the use of the easement for Lot P because of this land disturbing activity. According to Mr. Black’s testimony, the owner of Lot P “probably” would not be given a permit for the septic system within that easement. Also, according to Mr. Black’s testimony, it would depend upon the exact location of the existing drainfields and the location of these drainfields are “somewhat” at issue.

52. Mr. Laws in his deposition stated that the trenches were 3 feet with a 2 foot wall between them equaling 5 feet. Mr. Black testified that the area between the two drain fields must be 6 feet from the edge of one drainfield to the edge of the other drainfield.

53. Mr. Laws laid out the septic systems in the adjacent lots and the separation distance of the remainder lots is as he testified to in his deposition for these lots. There has been no attempt to revoke any other existing permits based upon this separation distance.

54. Mr. Black reviewed Lot O in 1997 and again approved the system on Lot O but without knowledge of the easement for Lot P.

55. According to Mr. Black’s testimony, the system for Lot P was not revoked because of the uncertainty of where the drain fields are located on Lot P. There has been no document produced by the Respondent as to the application for this system or where it is located on that application, and it’s possible that the septic system for Lot P is not located on Lot O.

56. Mr. Black stated that the blue lines on Respondent’s Exhibit 3 are Mr. Black’s best estimation of where the drainfields are located, and only an approximation of what may have been done. Mr. Black located the tank on Lot O’s system as depicted in Respondent’s Exhibit 3. The location of the tank for Lot P is also known.

57. According to Mr. Black’s testimony, the drainfield for the septic tank on Lot P would normally go off in the direction of Lot O. That would be the “normal” configuration. Mr. Black has observed that some drainfields have been configured around the contours and not in a straight out direction.

58. Rule 1955(c) “Trenches shall be located not less than 3 times the trench width on center with the minimum spacing at 5 foot on centers.” The centers of the trenches are then 9 feet apart which is a minimum. Therefore the trenches should be 6 feet apart from the edge. Mr. Black derived the figures on Respondent’s Exhibit 3 based upon a 6 foot separation between the trenches.

59. According to Mr. Law’s testimony, he believed that nitrification fields for Lot P could be located in a different configuration than as depicted in Respondent’s Exhibit No. 3. Mr. Law’s testified as follows:

Q. Okay . All right.

A. But I still am at a puzzle with this yellow drain field here because I --- Did anybody dig in to find out if that drain field was there?

Q. I don’t know, Mr. Laws, to be honest with you. I was just kind of wanting to see ---

A. I was just wondering if by chance and if it’s possible – highly possible – that drain field comes back around below that house, from the lay of the land. I mean, I’m not saying that it does. I’m saying that this could be right, but I don’t think it’s right. I know that I did not lay out two drain fields where one of them cross into the other drain field.

Q. Okay. Now, is it possible, though, on that other lot, that the drain field could actually go in a different direction?

A. Yes, sir. It’s possible that that drain field could turn and come around underneath between it and the lake down there because there’s plenty of room between it.. I looked between it and the high water mark there on the lake.

Q. Okay. All right.

A. And it’s possible that they paved over the drain field when they paved the road in there. It could have been in there and they paved over it with the asphalt.

(Petitioner’s Exh. #2, p 19, Lines 14-25, p. 20, Lines 1-13)

60. Mr. Laws in his deposition indicated that he overcompensated in approving the design of this drain field as there may have been more drainage trenches than needed for the size of the proposed residence on the property.

61. Mr. Laws, “as confirmed by Mr. Black in his testimony,” approved the conservative design for this lot because of the concerns about the proximity of the lake.

62. According to Mr. Black’s testimony, the truth is that we’re not exactly sure where the drain fields are on Lot P. But normally you would think it would be according to the way Mr. Black configured it on Respondent’s Exhibit 3.

63. If the drain fields for the septic system on Lot P are as configured they would be on property not controlled by Lot P.

64. According to Mr. Black’s testimony, it would be impossible to go back and review all of the systems that Mr. Laws approved in the area for trench separation and distances.

65. Mr. Black became aware of the potential existence of an easement on Lot O because the building inspector had contacted him and asked if it was acceptable for Mr. Toney’s (Petitioner) sewer line to cross the easement area for another lot. The existence of Rule 1938(e)(2)(A)(B), was given for the reason why Mr. Black said that it was not “possible.” The septic system as illustrated on Respondent’s Exhibit 3 for Lot O (in blue) is entirely within the lot controlled by Petitioner. However, the tank is also clearly within the easement which is not controlled by Lot O.

66. According to Mr. Black’s testimony, a portion of his opinion to revoke Lot O’s permit is based upon information that he received that the easement on Lot O is controlled by Lot P and, therefore, that portion of Lot O is not within the control of the Petitioner’s domain in Lot O. The easement specifically states that it is for the use of (Lot P’s) septic system. Respondent’s Exhibit 5, a survey of Lot O prepared by D. Scott Bostic, L-3801, Professional Land Surveyor, also establishes the location of Lot P’s septic easement within the confines of Lot O. The date and terms of the recorded easement for Lot P are not in evidence.

67. Mr. Black is unaware of which system was put in first between Lot P and Lot O.

68. Mr. Laws testified in his deposition that he was unaware of the existence of Lot P’s septic system at the time he approved Lot O’s septic system.

69. At the time Mr. Black issued his approval of Lot O’s septic tank system he was unaware of the existence of the easement for Lot P. With the existence of this easement, Lot O’s septic system is too small for the drainfields repair area. Mr. Black was required to revoke the permit on Lot O.

70. According to Mr. Black’s testimony, the developer did not disclose the existence of this easement at the original application.

71. There was no easement at the time Mr. Laws approved the septic system permit for Lot O.

72. Jeter Laws testified as follows:

Q. … and what that rule said, if you saw a drawing like this that had an easement on it, would that present a problem for you? (Petitioner’s Exh. 2, p 30, L. 18-20)

A. To answer your question, if the guy owned this property and had an easement on this piece of property and he come to me with it, yes, there would be a problem. He couldn’t put his septic tank there. He’d have to move on over here or somewhere else on this property. (Petitioner’s Exh.2, p31, L. 13-18)

(Petitioner’s Exh. 2, p 30, L. 18-20), (Petitioner’s Exh. 2, P 31, L 13-18)

Based upon the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes.

2. G.S. 150B-34(c) requires that this contested case be decided based upon “the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” Due regard to the demonstrated knowledge and expertise of the agency was established through the expert witness testimony of Mr. Black and Mr. Lynn.

3. G.S. 130A-336(a) provides, in part, as follows:

The improvement permit shall not be affected by change in ownership of the site for the wastewater system provided both the site for the wastewater system and the facility the system serves are unchanged and remain under the ownership or control of the person owning the facility.

4. 15A NCAC 18A.1938(b) provides as follows:

(b) The person owning or controlling the system shall be responsible for assuring compliance with the laws, rules, and permit conditions regarding system location, installation, operation, maintenance, monitoring, reporting, and repair.

5. The septic tank for Lot O was identified by Mr. Black and concurred in by Mr. Lynn as being in a specific location on Lot O. This location of the tank is illustrated in Respondent’s Exhibit 3. Mr. Black’s unrefuted testimony establishes the location of this tank on Lot O squarely within an area designated as “Drain Field Area” and “subject to easement for septic tank in D.B. 614, Pages 868-869, for Lot P.” Respondent’s Exhibit 5 is a copy of a survey of Lot O, PB5.PG. 57 (Revised-PB.5A, PG. 44) prepared and sealed by D. Scott Bostic, L-3801, Professional Land Surveyor, D.S. Bostic Land Surveying. By virtue of the tank for Lot O being squarely within an easement “Drain Field Area” granted to Lot P, the undersigned concludes that Petitioners are neither owners nor controllers of the septic tank for Lot O because of the “Easement for Septic tank” granted for the benefit of Lot P. Petitioner’s expert witness, Mr. Jeter Laws, conceded that the septic tank for Lot O could not exist in the easement for Lot P and would have to be relocated. Paragraph #4 of Respondent’s Exhibit 2 is established as a basis to affirm Respondent’s revocation of Petitioner’s permit.

6. G.S. 130-335(c) provides, in part, as follows:

(c) A person owning or controlling a residence, place of business or a place of public assembly shall provide an approved wastewater system

7. G.S. 130A-335 grants Respondent the authority to promulgate rules governing wastewater treatment systems.

8. 15A NCAC 18A .1938(e)(2)(A)(B) provides, in part, as follows:

(e) The State shall review and approve the system layout on a site plan or plat, plans and specifications for all systems serving a design unit with a design flow greater than 3,000 gallons per day, as determined in Rule .1949(a) or (b) of this Section, except:

(2) where the system consists of individual septic tank systems, each serving an individual facility, and which meets all of the following criteria;

(A) each individual system’s design flow does not exceed 1500 gallons per day, as determined in Rule .1949(a) or (b) of this Section,

(B) the site for the nitrification field and repair area for each individual system is at least 20 feet from any other individual system site, and …

9. Mr. Black indicates on Respondent’s Exhibit #3 that the existing tank on Lot P is 22’ from the existing tank on Lot O. The undersigned concludes based upon Mr. Black’s determination of this separation as 22’ that these tanks do not violate any of Respondent’s setback requirements as the horizontal separation exceeds 20 feet notwithstanding testimony as to the other methods of calculating this separation. The Respondent has failed to carry its burden of proof to establish Paragraph #2 of Respondent’s Exhibit 2 as a basis for revocation of Petitioner’s permit.

10. 15A NCAC 18A .1945(a) and ( b) provide as follows:

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.

(b) Sites shall have sufficient available space for a repair area separate from the areas 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 placement system.

11. Mr. Black admittedly approved this existing system on July 10, 1997 (Respondent’s Exhibit 1). There was sufficient available space for Lot O’s system and repair area. It met all requirements for approval at that time (the second time) for compliance with 15A NCAC 18A .1945(a) and (b). The later disclosure of Lot P’s easement onto Lot O was unknown to Mr. Black in 1997. Given the undersigned’s conclusion that there is not a horizontal setback violation between Lot P and Lot O, there would be no violation of 15A NCAC 18A .1945(a) and (b) except for the intrusion of Lot P’s septic tank easement on Lot O.

12. G.S. 130A-336(b) provides, in part, as follows:

This authorization for wastewater system construction shall be valid for a period… not to exceed five years, …

13. 15A NCAC 18A.1950(a)(9)(10)(12) and (17) provide as follows:

LOCATION OF SANITARY SEWAGE SYSTEMS

(a) Every sanitary sewage treatment and disposal system shall be located at least the minimum horizontal (emphasis added) distance from the following:

9) Any other lake or pond - 50 feet from normal

pool elevation;

(10) Any building foundation - 5 feet;

(12) Any property line - 10 feet;

(17) Any other nitrification field (except repair area)

(emphasis added) 20 feet:

14. 15A NCAC 18A.1955(c) provides as follows:

DESIGN INSTALLATION CRITERIA FOR CONVENTIONAL SEWAGE SYSTEMS

(c) The design daily sewage flow shall be divided by the long-term acceptance rate to determine the minimum area of nitrification trench bottom. The total length of the nitrification line shall be determined by dividing the required area of nitrification trench bottom by the trench width, not to exceed 36 inches. Trenches shall be located not less than three times the trench width on centers with a minimum spacing of five feet on centers.

15. Due to the setback requirements as testified to by Mr. Black, as concurred in by Mr. Lynn, and as contained in Rule 15A NCAC 18A .1950(a)(9)(10)(12) and (17), and further discounting the space allotted in the easement on Lot O for Lot P, there is not adequate remaining space on Lot O to otherwise provide an alternative site on Lot O to place a ground absorption septic system permitted under the requirements of the applicable statute and rules. This rationale also applies to the lack of a repair area. Due regard is accorded to Respondent’s expertise and knowledge that is within Respondent’s specialized knowledge as demonstrated through Respondent’s expert witnesses. Paragraph #3 of Respondent’s Exhibit 2 is partially established as a basis to affirm the revocation of Petitioner’s permit because of “the presence of the septic system easement for Lot 25-P.”

16. G.S. 130A-343(c) provides, in part, as follows:

(c) Approved Systems. – The Department may modify, suspend, or revoke the approval of a wastewater system if the Department determines that the approval is based on false, incomplete, or misleading information or if the Department finds that modification, suspension or revocation is necessary to protect public health, safety or welfare.

Respondent’s decision to revoke Petitioner’s permit for Lot O was made in accordance with G.S. 13A-343(c) and was not arbitrary or capricious. Respondent’s decision as to the system on Lot O must remain unrelated as to any administrative action to be taken as to the system on Lot P.

17. Mr. Black admitted he could not identify with the certainty required to make a specific finding of fact as to the location of the drainfields for the existing systems on Lot P or O. Based upon the configuration of the drainfields on Lot O as depicted in Petitioner’s Exhibit 1, and according to the deposition testimony of Jeter Laws substantially confirming this location based upon his personal observation of this field when uncovered, the nitrification fields for Lot O have been established in the record within enough certainty to base a finding of fact. However, no accurate measurement could be determined with the certainty required to make a specific finding of fact as to a setback violation of 20 feet between the nitrification fields for the septic system on Lots O and P as the location of the nitrification fields for Lot P have not been established. Respondent has failed to carry its burden of proof to establish Paragraph #2 of Respondent’s Exhibit 2 as a basis for revocation of Petitioner’s permit.

18. Likewise, under the rationale stated in Conclusion of Law #17 above, the inexactness of the location of the nitrification fields for Lot P cannot support a conclusion: “The septic systems for Lots 25-O and 25-P are located so close together that they may overlap. This gives them little chance of functioning properly without failing”. Respondent has failed to carry its burden of proof on this issue without a specific determination (not speculation) as to the location of the nitrification fields for Lot P. Respondent has failed to carry its burden of proof to establish Paragraph #1 of Respondent’s Exhibit 2 as a basis for revocation of Petitioner’s permit.

19. According to the expert testimony of Mr. Black, as concurred in by Mr. Lynn, there is no alternative septic system available to Petitioner, given the setback violations now existing within the identification of Lot P’s easement onto Lot O. Due regard is accorded to Respondent’s expertise and knowledge that is within Respondent’s specialized knowledge as demonstrated through Respondent’s expert witnesses, and the undersigned concludes that there is now no alternative system available for Lot O. Petitioners offered no contrary expert testimony as to the availability of an alternative system.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned issues the following:

DECISION

As concluded and as limited above, the Respondent’s decision to revoke the existing system permit (issued 07/10/97) for Lot 25-O in Lakeview Pointe Subdivision, McDowell County, Nebo, North Carolina 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 N.C. Gen. Stat. § 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Department of Environment and Natural Resources.

This the 28th day of May, 2003.

_________________________________

Julian Mann, III

Chief Administrative Law Judge

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