STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF CARTERET 04 EHR 1541

______________________________________________________________________________

Braxton George Goodwin, )

Claudia A. Goodwin, )

Petitioners, )

)

v. ) DECISION

)

(Carteret County Health Department), )

NC Department of Environment and )

Natural Resources, Division of )

Environmental Health, )

Respondent. )

______________________________________________________________________________

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Augustus B. Elkins II, on January 21, 2005, in New Bern, North Carolina.

APPEARANCES

For Petitioners: The Petitioners appeared pro se.

For Respondent: Judith Tillman

Assistant Attorney General

North Carolina Department of Justice

Health and Public Assistance Section

9001 Mail Service Center

Raleigh, NC 27699-9001

EXHIBITS

Petitioners: Photo Exhibit 1

Respondent: Document exhibits numbers 1-6

Photo exhibits 1, 2, 3, 4, 9, 13, 14, 15,

ISSUE

Was the Respondent’s denial of Petitioners’ application for a permit for an on-site wastewater treatment and disposal system for property at 2336 Cedar Island Road in Carteret County, North Carolina, proper and lawful?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The Petitioners, Braxton George Goodwin and Claudia A. Goodwin, own property at 2336 Cedar Island Road in Carteret County.

2. Mr. Goodwin is a one-hundred ton master’s captain and has assisted his brother in putting in septic systems. His work as a commercial fisherman takes him away from home frequently. (T pp. 151, 161) Mrs. Goodwin is a math teacher who is committed to her students. She works with her students in many extra-curricular activities, such as coaching, cheerleading, quiz bowl and history bowl. (T pp. 161, 173)

3. Tim Crissman is a regional soils specialist for the North Carolina Department of Environment and Natural Resources, Division of Environmental Health, On-Site Wastewater Section. Mr. Crissman works as a consultant to health departments in 11 counties in the southeastern part of the State. Mr. Crissman has more than seven years experience in the field of environmental health. He is authorized as an agent of the North Carolina Department of Environment and Natural Resources, Division of Environmental Health, with regard to the enforcement of on-site wastewater laws and rules. (T pp. 25-31). Mr. Crissman does training for the N.C. Department of Environment and Natural Resources in soils, and specifically in soil wetness issues. Mr. Crissman was qualified as an expert witness in soils and soil evaluation for on-site wastewater treatment.

4. Dr. Robert Uebler is Field Services Team Leader for the North Carolina Department of Environment and Natural Resources, Division of Environmental Health, On-Site Wastewater Section. He works as a consultant to other soils specialists in the North Carolina Department of Environment and Natural Resources, Division of Environmental Health. Dr. Uebler has 26 years experience in the field of environmental health. He is authorized as an agent of the North Carolina Department of Environment and Natural Resources, Division of Environmental Health, with regard to the enforcement of on-site wastewater laws and rules. (T pp.118-124) Dr. Uebler has done extensive research in Eastern North Carolina on various technologies to overcome soils problems, and particularly the problem of soil wetness, in waste-water treatment. (T p. 123, 142) Dr. Uebler participated in developing the procedures and writing the rules, set out in 15A N.C.A.C. 18A .1942 (e), that permit water monitoring. (T pp. 129-30) Dr. Uebler was qualified as an expert in soils and on-site wastewater treatment.

5. Septic systems in North Carolina are governed by N.C. Gen. Stat. §130A-333 et seq.; N. C. Gen. Stat. §150B et seq.; and Title 15A, Subchapter 18A, of the North Carolina Administrative Code, Rules section .1900 and following.

6. 15A N.C.A.C. 18A .1942 addresses soil wetness conditions. The rule states in part:

(a) Soil wetness conditions caused by seasonal high-water table, perched water table, tidal water, seasonally saturated soil or by lateral water movement shall be determined by field evaluation for soil wetness colors . . . . 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) . . . 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. (Emphasis in rule.)

7. Soil characteristics, such as structure, texture, consistence, mineralogy, soil wetness, depth, saprolite, and restrictive horizons, are evaluated pursuant to the above-referenced laws and rules. An on-site waste water treatment and disposal system will not function properly in wet soils. (T pp. 86) Soil wetness is determined by soil color. Soil color is indicative of whether a site has been historically well drained or poorly drained. (T p. 35; 15A N.C.A.C. 18A .1942 (a))

8. Using the Munsell Color Charts to evaluate soil color is a standard procedure that is accepted in soil science. (T pp. 35, 36) In a well-drained soil, one would expect to see a bright orange, yellowish, tan or brown color. These colors indicate aeration in the soils, which is necessary for wastewater treatment. (T pp. 35, 125) In a soil that is not well-drained, one would expect to see gray, black, and dark brown colors, indicating that the soil has been saturated for long periods of time. (T pp. 35-35)

9. Dr. Uebler, in his expert testimony, testified to the seriousness of soil wetness in the context of how a septic system works. (T pp. 124-25) Sewage leaving a septic system can be adequately treated if it enters aerobic soils, that is, soils that have air in them. Sewage can be adequately treated by organisms that live naturally in the soils. If, however, the soil is filled with water, air is not present, and the organisms that are needed to adequately treat the sewage do not function properly. Disease organisms in sewage survive easily in wet soils and pose potential public health problems. (T p. 125) Additionally, sewage contains organic matter that is not properly digested in wet soil. This can cause clogging in a septic system with the potential result that sewage would surface or back up in the home. (T p. 125)

10. Hurricane Isabel struck the North Carolina coast on September 18, 2003, creating numerous and severe hardships for the Goodwin family.

11. In October 2003, Mr. Goodwin submitted an application to the Carteret County Health Department for a permit for a wastewater treatment and disposal system for property at 2336 Cedar Island Road in Carteret County. (Respondent’s Document Exhibit 5)

12. The Carteret County Health Department evaluated the Goodwin site and found it to be unsuitable for a septic system. The Health Department notified Mr. Goodwin of the decision in a letter dated October 24, 2003. (T pp. 83, 88, 157-59,167; Respondent’s Document Exhibit 5) The October 24, 2003, letter specifically cited rules 15A N.C.A.C. 18A .1941 (soil structure); .1942 (soil wetness); .1945 (insufficient available space for an initial system and repair area); rules .1956 and .1957 (unsuitable for modified or alternative system); and .1957(b)(2) (unsuitable with regard to existing fill). (Respondent’s Document Exhibit 5)

13. The October 24, 2003, letter also advised Mr. Goodwin that it might be possible to install water monitoring test wells to determine the actual soil wetness on the site. (Respondent’s Document Exhibit 5)

14. To provide a second and recent opinion on the evaluation of the Goodwins’ property, Mr. Crissman evaluated it on January 20, 2005. (T pp. 82) Mr. Crissman did at least four soil borings on the property. (T p. 32) Respondent’s Document Exhibit 1 is the site evaluation sheet that Mr. Crissman filled out for the Goodwins’ property, showing the results of his evaluation of the site. The evaluation sheet shows Mr. Crissman’s notes of his evaluation of the four soil borings. (T p. 32; Respondent’s Document Exhibit 1)

15. Among the soil characteristics that Mr. Crissman examined was soil color. (T p. 35, Respondent’s Document Exhibit 1)

16. In Mr. Crissman’s first soil sample from the Goodwins’ property, all the colors were chroma 2 or less color, indicating a high water table less than 12 inches below the ground surface. (T pp. 36, 76; Respondent’s Photo Exhibit 9) Some characteristics of the soils in Mr. Crissman’s first soil profile did not present problems: evaluation of soil depth pursuant to 15A N.C.A.C. 18A .1943; evaluation for saprolite pursuant to 15A N.C.A.C. 18A .1956 and evaluation for restrictive horizons pursuant to 15A N.C.A.C. 18A .1944. The soil wetness issue, however, lead to an overall classification of the profile as unsuitable for a septic system. (T pp. 37-40; Respondent’s Document Exhibit 1)

17. In his second soil sample, Mr. Crissman found a restrictive horizon that could cause perching of the water table or sewage effluent. (T p. 40; Respondent’s Document Exhibit 1, 15A N.C.A.C. 18A .1944) Also in the second soil sample, Mr. Crissman found chroma 2 or less colors in the entire profile, indicating a high water table less than 12 inches below the ground surface. (T pp. 40, 76, Respondent’s Photo Exhibit 9; 15A N.C.A.C. 18A .1942(c)) Mr. Crissman’s overall classification for the second soil sample was unsuitable. (T p. 40)

18. 15A N.C.A.C. 18A .1941 (a)(2)(E) addresses massive structure and states in 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. (Emphasis in rule.)

19. Soil sample number three indicated a massive structure to the soil that makes it unsuitable for a septic system. (T p. 40 and 15A N.C.A.C. 18A .1941) In soil sample three, Mr. Crissman found a layer to be brittle, cemented, compacted and capable of perching the water table or sewage effluent. (T pp. 40-41 and 15A N.C.A.C. 18A .1941) Mr. Crissman also found soil wetness in the entire profile of sample number three. (T pp. 41, 75-76; Respondent’s Photo Exhibit Number 9) Overall, Mr. Crissman’s classification for the third soil sample was unsuitable.

20. In his fourth soil sample, Mr. Crissman found loamy sand textured soils that organic materials, making them have a reduced hydraulic conductivity. (T p. 41) The fourth soil sample also showed massive soils with no structure. (T pp. 41-42) In his fourth soil sample, Mr. Crissman found that the entire profile was chroma 2 or less, indicating poorly drained soils and soil wetness less than 12 inches from the ground surface. (T pp. 42, 76, Respondent’s Photo Exhibit 9) Overall, Mr. Crissman’s overall classification for the fourth soil sample was unsuitable. (Respondent’s Document Exhibit 1)

21. Respondent’s Photo Exhibit 9 illustrated soils typical of the soil profiles evaluated across the site. The colors were gray at the top surface layer of the soil, then lighter gray in the mid point of the profile and dark towards the bottom of the profile, indicating organics in the soil. The colors indicate a poorly drained soil. (T pp. 75, 76, 88; Respondent’s Photo Exhibit 9)

22. The soil color in this case indicates that soil wetness occurs within 12 inches of the ground surface. (T p. 126) Rule 15A N.C.A.C. 18A .1942 (c) states in relevant part: “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.” (Emphasis in rule.)

23. Mr. Crissman concluded that without additional information, the lot must be classified as unsuitable for an on-site wastewater treatment and disposal system. (T pp. 82)

24. The Goodwins’ did not offer any expert testimony to refute Mr. Crissman’s testimony about soil color, restrictive horizons, massive soil structure, or brittle, cemented and compacted soil conditions on their property.

25. In addition to the field evaluation procedures established for determining soil wetness, the rules also permit water monitoring to determine soils wetness. (T p. 126; 15A N.C.A.C. 18A .1942 (a), (d) and (e)). Had the Goodwin site been found to be suitable for a septic system during the initial evaluation by the Carteret County Health Department, water monitoring would not have been necessary. (T p. 89)

26. Water monitoring test wells provide a way to get more information when the initial site evaluation indicates problems, as with the Goodwin site. (T pp. 89, 127, 135) When monitoring wells are used, a monitoring plan must be submitted at the beginning of the monitoring season, and it must be followed. (T pp. 63, 107; 15A N.C.A.C. 18A .1942 (e) (1)) The monitoring wells must represent the proposed location for the initial septic system and repair area. (T p. 84)

27. When water monitoring test wells are used, a rainfall gauge also must be part of the plan. (T pp. 88, 107; 15A N.C.A.C. 18A .1942 (e) (1)) The purpose of having an on-site rain gauge is to gather water-table information where the monitoring wells are located and where the proposed septic system and repair area would be located. (T pp. 84, 107) Because the purpose of the rain gauge is to gather water-table information where the proposed septic system would be, the same rain gauge sited in the monitoring plan should be used throughout the entire water monitoring period. (T p. 107)

28. Site-specific rainfall data is critical to evaluating water monitoring wells. (T p. 129)

A reliable rainfall evaluation is crucial because if rainfall was underestimated, there would be the risk of installation of an on-site wastewater treatment system that could discharge waste to groundwater, the ground surface, and the home, creating a public health risk. (T pp. 86, 125, 129, 130)

29. The Goodwins installed water monitoring test wells and a rain gauge. (T p. 170) Mrs. Goodwin did the rain gauge readings for the most part, but difficulties with the rain gauge and with her schedule created a hardship for her in collecting rain gauge data. Mrs. Goodwin’s daughter assisted her at times taking the rain gauge readings. (T p. 172). Depending on whether Mrs. Goodwin or her daughter took the readings, the readings sometimes were recorded in centimeters and sometimes were recorded in inches. (T pp. 149, 172, 183)

30. At some point during their monitoring, due to difficulties with the first rain gauge, the Goodwins put a second rain gauge on their property. (T pp. 151-52) Mrs. Goodwin acknowledged at hearing that due to the difficult circumstances of collecting the data, it was not accurate. (T p. 173)

31. At the end of the monitoring period, the Goodwins submitted a complete set of water monitoring and rain gauge data to the Carteret County Health Department. They did not submit any other data or ask that any other data be considered. The Health Department asked Mr. Crissman to review the data. (T pp. 83, 87 96, 110, 154; Respondent’s Document Exhibit 4) The data submitted by the Goodwins was all the information he had regarding their site. (T pp. 83, 110)

32. Prior to evaluation of the findings from the actual water monitoring test wells, data from the rainfall gauges must be evaluated to determine whether there was sufficient rainfall during the monitoring period. (T p. 89) The rules set out a way of determining what is sufficient rainfall. (T pp. 84-86, 102, 103, 104, 105; 15A N.C.A.C. 18A .1942 (e)) The minimum rainfall required for the Goodwins site was 15 inches. (T p. 87)

33. Analyzed as required in 15A N.C.A.C. 18A .1942 (e) (7), the data submitted by the Goodwins showed their rainfall at 13.925 inches. (T pp. 87, 91, 110, 188, Respondent’s Document Exhibit 4)

34. When site-specific rainfall data has been collected on a piece of property pursuant to a water monitoring test well plan, and the data submitted, the Respondent must review that data that was submitted. (T pp. 128, 131; 15A N.C.A.C. 18A .1942 (d)) Mr. Crissman was therefore bound by the site-specific data submitted by the Petitioner. (T pp. 104, 105, 110) Without the required rainfall data, Mr. Crissman could not proceed to review the water monitoring test well data. (T pp. 87, 88, 89, 91, 103)

35. Rule 15A N.C.A.C. 18A .1942 (e) (6) allows a rain gauge to be placed within one-half mile of the property site, but property owners who wish to use such a rain gauge must set it out in their water monitoring plan, which is required by 15A N.C.A.C. 18A .1942 (e) (1). Mr. Goodwin’s brother, Mr. Sherman Goodwin, also conducted water monitoring on his property, which is less than one-half mile from Mr. and Mrs. Goodwin’s property at 2336 Cedar Island Road. Mr. Sherman Goodwin had adequate rainfall data for review. Review of Mr. Sherman Goodwin’s water monitoring data, including the rainfall data, showed his property to be unsuitable for a septic system. (T pp. 94-95, 148, 162)

36. After having received the information that their data was insufficient, the Goodwins want(ed) to use Mr. Sherman Goodwin’s rainfall data from his property and their own well readings from their property. Testimony by the accepted expert, Dr. Uebler, showed that this approach would pose the risk of having the Goodwins install a septic system put into soils that are too wet, creating a public health risk. (T pp. 134, 137-38) Sufficient data from water monitoring (including sufficient rainfall data) can be used not only to determine whether a site can be used for a septic system, but also can be used to determine what type of system may be required. (T p. 134-35)

37. Dr. Uebler reviewed the data submitted by the Goodwins and had concerns, because of the characteristics of the soils on the site, about whether a septic system would work properly on the site. (T pp. 134, 137-38, 142) The Goodwins’ property borders on surface waters. (T p. 82) Dr. Uebler has done research showing a high rate of failure of septic systems on soils like those found on the Goodwins’ property. (T p. 133-34, 142) The Petitioners presented no expert testimony to refute Dr. Uebler’s concerns or his research.

38. The Respondent’s conclusion that the Petitioners’ current rainfall data was inadequate does not preclude them from re-monitoring to collect additional data. (T p. 92, 135) In a letter to the Goodwins dated August 27, 2004, the Carteret County Health Department notified the Goodwins that their rainfall data was inadequate and that they could re-monitor. (T p. 160; Respondent’s Document Exhibit 6) Mr. Crissman and Dr. Uebler agree that the Goodwins may re-monitor. (T pp. 92, 95) There is open area on the Goodwins’ property that is not covered over by foliage from trees and may provide for better collection of rainfall. (T p. 70; Respondent’s Photo Exhibit 1)

39. The rules also allow a combination of water monitoring and computer modeling to determine soils wetness. (15A N.C.A.C. 18A .1942 (a), (d) and (f)) The Goodwins have this other option of combining monitoring and modeling. They can use the data they have now and apply a computer model to further determine the amount of soil wetness on their property. (T pp. 92, 93, 95, 160; 15A N.C.A.C. 18A .1942 (d) and (f))

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, 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. The parties received proper notice of the hearing in the matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.

2. N.C.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.” As required by law, the Undersigned gives such regard to the expertise of Mr. Crissman and Dr. Uebler as experts in soils and soil evaluation for on-site wastewater treatment.

3. Title 15A, Subchapter 18A, of the North Carolina Administrative Code, rules section .1900 and following, regulate on-site waste water treatment and disposal systems.

4. Based on site evaluations by the Carteret County Health Department and by Tim Crissman,

regional soils specialist for the North Carolina Department of Environment and Natural Resources, Division of Environmental Health, On-Site Wastewater Section, the Goodwin site as presently evaluated is unsuitable for an on-site waste water treatment and disposal system.

5. 15A N.C.A.C. 18A .1942 (a), (d) and (e) allows water monitoring as an alternative way to determine soils wetness. In reviewing water monitoring data pursuant to Rule 15A N.C.A.C. 18A .1942, the Respondent is bound by what is submitted by the Petitioner property owners. Upon receiving an unfavorable review of data submitted, the property owner cannot submit different data collected in a different location from that submitted in the monitoring plan. Based on the complete set of data collected and submitted by the Petitioners pursuant to a water monitoring plan, the rainfall was insufficient for a conclusion to be drawn about the soil wetness condition on the Goodwins’ property.

6. Dr. Robert Uebler helped develop Rule 15A N.C.A.C. 18A .1942 (e) regarding rain gauge placement within one-half mile of the property site. The Rule requires that rain gauge placement be set out in the water monitoring plan. Rule 15A N.C.A.C. 18A .1942 (e) (6) was adopted with the intent of not requiring a rainfall gauge on every single lot in a subdivision under development, but rather in some cases to allow rainfall gauges on one lot to be used on the lot next door. The Rule does not intend nor does it allow a property owner to select a different rainfall gauge after having collected site-specific data and having an unfavorable result.

7. Proceeding with development of the Petitioners’ lot with the currently available soils information would pose a risk of septic system failure. The Petitioners may re-monitor the site, or they may use the data they have now and have it analyzed by computer modeling to further determine the amount of soil wetness on their property and the suitability of a septic system.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

The Respondent’s decision to deny Petitioners’ application for an on-site wastewater treatment and disposal system for their property in Carteret County, North Carolina, was proper and lawful.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

The agency shall adopt the Decision of the Administrative Law Judge unless the agency demonstrates that the Decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Department of Environment and Natural Resources.

IT IS SO ORDERED.

This the 31st day of March, 2005.

_______________________________

Augustus B. Elkins II

Administrative Law Judge

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