STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CHEROKEE 07 EHR 0722

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|John B. Chastain, Jr., | |

|W.B. Chastain | |

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|Petitioners, | |

|v. |PROPOSED DECISION |

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|N. C. Department of Environment and Natural Resources, | |

| | |

|Respondent. | |

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A contested case hearing was heard in this matter on April 2, 2008, at the Henderson County Courthouse, Hendersonville, North Carolina, before the Honorable Selina M. Brooks, Administrative Law Judge. Petitioners, John B. Chastain, Jr. and W. B. Chastain appeared pro se. The Respondent, Department of Environment and Natural Resources (hereinafter known as DENR), was represented by John P. Barkley, Assistant Attorney General. Judge Brooks heard arguments from the parties on Respondent’s Motion to Dismiss the contested case as to Lot 6 for lack of jurisdiction. For reasons that will be explained more fully in a later section, the Motion to Dismiss was granted as to Lot 6, and the evidence in the case was limited to the revocation of the permit and authorization for Lot 2.

ISSUES

Should Respondent’s Motion to Dismiss the Contested Case as to Lot 6 for lack of jurisdiction be granted?

Did the Respondent properly revoke Petitioners’ improvement permit and construction authorization for Petitioners’ Lot 2?

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. Petitioners are the owners of Lot 2 and Lot 6 in Red Silo Subdivision, in Cherokee County, North Carolina.

2. On October 2, 2004, Michael Thompson, at the time an environmental health specialist with the Cherokee County Health Department (hereinafter CCHD), issued improvement permits and construction authorizations for Lot2 2 and 6 for installation of on-site wastewater systems to serve a three-bedroom house on each lot.

3. In May of 2006, after questions arose about a number of permits issued by Mr. Thompson, CCHD did an additional evaluation of Lots 2 and 6. Mr. James Tipton, at the time an environmental health specialist with CCHD, evaluated both sites and determined that the sites were classified as Unsuitable for installation of wastewater systems under state wastewater laws and rules (G.S. 150B-33, et seq. and 15A NCAC 18A .1900). Mr. Tipton determined that there was insufficient soil depth to rock pursuant to 15A NCAC 18A .1943 and insufficient available space for installation of a wastewater system and a repair area pursuant to 15A NCAC 18A .1945. Mr. Gene Young, Regional Soil Scientist with the On-Site Water Protection Section in the Department of Environment and Natural Resources (DENR), was also present and also found the site to be Unsuitable. Mr. Young and Mr. Tipton agreed that Lots 2 and 6 were unsuitable and that the improvement permits and construction authorizations for both lots had to be revoked (The evidence related to Mr. Young’s testimony regarding Lot 2 is contained in greater detail below). Petitioner John Chastain, Jr., was present during the evaluation and was informed by Mr. Tipton that the permits for lots 2 and 6 were revoked.

4. By letter dated August 16, 2006, Mr. Tipton notified Petitioners that pursuant to the evaluation of Lot 6 it had been determined to be in violation of the wastewater rules due to unsuitable soil depth (Rule .1943) and insufficient space for a septic system and repair area (Rule .1945), and that based on these findings CCHD intended to revoke the improvement permit and construction authorization for Lot 6 thirty (30) days from the date of the notice. Mr. Tipton did not send a similar letter for Lot 2.

5. Petitioners did not file a petition for contested case within 30 days of the August 16, 2006, letter giving notice of CCHD’s intent to revoke Petitioners’ improvement permit and construction authorization for Lot 6. Petitioners did not file the petition for a contested case in this matter until May 4, 2007. \

6. The regional soil scientist with DENR, Mr. Gene Young, testified regarding his evaluation of Lot 2. Mr. Young was qualified as an expert in the evaluation of sites for the installation of on-site wastewater systems.

7. Mr. Young evaluated Lot 2 at the request of CCHD. CCHD requested Petitioners to dig backhoe pits on Lot 2 for evaluation of the site. Mr. Young explained that this is often required in Cherokee County due to the prevalence of rock on many sites in the county. Backhoe pits can remove rock that poses an obstacle to normal auger evaluation of soils and provides for a more accurate evaluation of the site. He stated that three pits were dug, spaced across Lot 2. Pits 1 and 2 went to depths of 42 -45 inches, and Pit 3 went to a depth of 84 inches.

8. In Pits 1 and 2, Mr. Young found that the materials in both pits were entirely mixed fill to the complete depth of the pits. The fill was a mix of sandy clay loam to silty clay loam. The fill material was Unsuitable under the wastewater laws and rules. Mr. Young testified that the requirements for soil depth are found in 15A NCAC 18A .1943. He explained that rules require that soils be naturally occurring soils with proper soil characteristics. Naturally occurring soil is required because it is formed in place and develops texture and structure necessary to properly treat wastewater effluent. Fill material can only be used in accordance with the provisions of 15A NCAC 18A .1957. The fill material must be sand or sandy loam to be classified as Suitable fill and existing fill can only be used when it is suitable fill that can be established by the permit applicant to have been in place prior to July 1, 1977. The fill material on the site did not comply with these provisions and was classified Unsuitable. Pit 3 went to a deeper depth in order to see at what depth the fill material stopped. At 84 inches deep, the profile still contained only fill material. As the fill material was Unsuitable, Mr. Young also found insufficient soil depth to rock in violation of 15A NCAC 18A .1943. Mr. Young also found the site to be Unsuitable due to insufficient space for installation of a wastewater system and repair area. Based on the findings that the soils across the site were classified as Unsuitable because they consisted of fill material, there was no area on the site that could be used for installation of the wastewater system.

9. Mr. Young’s expert opinion was that Lot 2 was classified as Unsuitable for the installation of a wastewater system due to insufficient soil depth to rock and insufficient available space on the property in accordance with state wastewater laws and rules.

10. Mr. Young’s expert opinion was that no modified or alternative system could be used on Lot 2.

11. Mr. Young observed, however, that the fill on the site appeared to be very, very old. It appeared to Mr. Young that the fill material had developed characteristics of soils that, although they exhibited weak structure, showed potential for use for installation of a system if the suitable characteristics could be confirmed through additional testing by Petitioners. While the fill, even if it had developed the characteristics of soil, would still be in violation of the wastewater rules as conditions existed on the site without further data, an option existed that Petitioners could pursue pursuant to 15A NCAC 18A .1948(d) that could lead to the permitting of the site. A final determination of whether the fill material would act like soil and meet the requirements of the rules could be verified through evaluation and testing by a private licensed soil scientist and submitted as a proposal for use of a wastewater system under 15A NCAC 18A .1948(d).

12. A proposal made pursuant to 15A NCAC 18A .1948(d) is a last opportunity to allow an applicant to do further evaluation and testing of a site that otherwise cannot be permitted under the rules, and to submit written substantiating data from an expert to show that a wastewater system can properly function on the site. The substantiating data must show that a wastewater system can be installed on the site so that effluent will be non-pathogenic, non-infectious, non-toxic and non-hazardous; that the effluent will not contaminate ground water or surface water; and that the effluent will not be exposed on the ground surface or be discharged to surface waters where it could come in contact with people, animals, or vectors. The proposal has to be submitted to the local health department for review to determine if it meets all of the criteria of .1948(d). However, without the submission of a .1948(d) proposal with all supporting data and an explanation of how the data meets the criteria of the rule, a site otherwise classified Unsuitable under the wastewater rules cannot be reclassified to allow installation of a wastewater system.

13. Pursuant to Mr. Young’s findings, Petitioners hired a Licensed Soil Scientist (LSS) to evaluate the site and test the site pursuant to .1948(d). The LSS evaluated the site and conducted hydraulic conductivity testing on the site. He discussed his findings with Mr. Young. He submitted some data to Mr. Young for review and did additional testing pursuant to those discussions. The LSS determined that the fill material on the site had developed sufficient characteristics of soil so that a 25% reduction wastewater system could function properly on the site; however, the LSS did not submit the data and his findings in a complete .1948(d) proposal that addressed how the data met the required criteria in .1948(d). Mr. Young testified that the data he reviewed appears sufficient but he cannot make a final determination until he receives a .1948(d) proposal including the above information.

14. Mr. Young testified that in the absence of a .1948(d) proposal that contains all of the required information, CCHD is bound by the specific provisions of the wastewater rules governing classification of a site. Under those rules, the site must be classified Unsuitable and CCHD cannot issue a new improvement permit and construction authorization for the site.

15. Respondent’s exhibits 2 and 4 and Petitioners’ exhibit 1 were admitted into evidence. All exhibits related to Lot 6 were removed from exhibit folders and not considered.

16. Petitioner John Chastain, testified on his own behalf, but presented no expert testimony or other scientific evidence to dispute the state’s evidence regarding the basis for the revocation of the improvement permit and construction authorization for Lot 2. Petitioners’ exhibit 1, the report from the L.S.S. hired by Petitioners, was consistent with Mr. Young’s testimony that the site probably can be permitted for a 25% reduction system, the same type of system originally permitted for Lot 2; however, a system cannot be permitted until a complete proposal is submitted to CCHD and Mr. Young addressing all criteria in .1948(d), and is reviewed and approved by CCHD and Mr. Young as meeting the criteria.

RESPONDENT’S MOTION TO DISMISS AS TO LOT 6

Having considered the Respondent’s Motion to Dismiss, the arguments of the parties on the motion, the evidence presented and the Findings of Fact above, the administrative law judge makes the following findings and conclusions of law:

1. By letter dated August 16, 2006, CCHD notified Petitioners that CCHD determined that Lot 6 was Unsuitable due to unsuitable soil depth and insufficient space for installation of a wastewater system and a repair area, and that CCHD intended to revoke the improvement permit and construction authorization for Lot 6, 30 days from the date of the notice.

2. The August 16, 2006, letter provided notice of Petitioners’ appeal rights pursuant to G.S. 130A-23, G.S. 130A-24 and Chapter 150B, including language in the notice that informed the Petitioners “(i)f you wish to pursue a formal appeal, you must file the petition form with the Office of Administrative Hearings WITHIN 30 DAYS OF THIS NOTICE.”

3. Petitioners did not file a petition for a contested case hearing within 30 days of the August 16, 2006, notice from CCHD. Petitioners did not file the petition for contested case in this matter until May 4, 2007. Therefore, the revocation went into effect for the improvement permit and construction authorization for Lot 6.

4. G.S. 150B-23(f) states that “(u)nless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in a contested case, the general limitation for the filing of a petition in a contested case is 60 days.” It then states that the “time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official repository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency.”

5. G.S. 130A-24(a1) sets the deadline for appeal of an action taken pursuant to Chapter 130A or the rules of the Commission for Public Health (formerly Commission for Health Services). Pursuant to G.S. 130A-24(a1), a petition for a contested case regarding such actions must be filed with the Office of Administrative Hearings “not later than 30 days after notice of the action which confers the right of appeal unless a federal statute or regulation provides for a different time limitation.”

6. This matter involves action based on on-site wastewater rules adopted by the Commission for Public Health and there are no federal statutes or regulations that designate a different time limitation than the 30 day limitation in G.S. 130A-24(a1).

7. Petitioners filed their petition for a contested case hearing in this matter on May 4, 2007, far beyond the statutory deadline for appeal of the intent to revoke the improvement permit and construction authorization for Lot 6. Petitioners asserted that they hired an attorney to handle their case and the attorney did not file the case within the requisite time. The Undersigned understands that Petitioners relied on the attorney they retained to properly file the appeal; however, the Petitioners ultimately had the responsibility to make sure the petition was filed within the designated period for filing. Therefore, Petitioners did not appeal the notice of intent to revoke within 30 days of the agency action as required by G.S. 130A-24(a1) and G.S. 150B-23(f).

8. Based on the above, the petition for contested case in this matter was not timely filed. A petition for a contested case in OAH is properly dismissed by the administrative law judge if the Petitioners fail to meet the statutory deadline for timely filing of the petition. Gummels v. North Carolina Dept. Of Human Resources, 98 N.C. App. 675, 678, 392 S.E. 2d 113, 115 (1990). If the statutory requirements for filing a petition for a contested case are not met, OAH lacks jurisdiction over the case. Nailing v. UNC-CH, 117 N.C. App. 318, 327, 451 S.E.2d 351, 357 (1994), disc. review denied, 339 N.C. 614, 454 S.E.2d 255 (1995). Pursuant to these cases, even a petition filed a few days past the deadline does not meet the statutory timeframe and OAH has no jurisdiction over the case. Therefore, since Petitioners in this matter did not timely file the petition in accordance with mandatory statutory procedures for Lot 6, OAH lacks jurisdiction over the revocation of Lot 6 and Petitioners have waived their right to appeal CCHD’s revocation of Lot 6. However, notice of appeal rights were not provided to Petitioners for the revocation of Lot 2, and the timeframe for appeal of Lot 2 did not begin prior to the filing of the petition for contested case. Therefore, the appeal of the revocation of the permit for Lot 2 was properly within OAH’s jurisdiction and properly heard by the administrative law judge at the contested case hearing.

9. A case may be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure.

10. G.S. 150B-36(c)(1) states that a determination by an administrative law judge that the Office of Administrative Hearings lacks jurisdiction is a final decision.

NOW, THEREFORE, the administrative law judge finds that the Petitioners did not timely file the petition for contested case hearing as to Lot 6, and OAH does not have jurisdiction over the CCHD’s revocation action regarding Lot 6. Therefore, this matter is hereby DISMISSED for lack of jurisdiction as to Respondent’s actions regarding Lot 6. This dismissal of the petition as to Lot 6 is a final decision pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure and G.S. 150B-36(c)(1).

Having dismissed this matter as to Lot 6, the court now proceeds to its Conclusions of Law with respect to Lot 2.

CONCLUSIONS OF LAW

1. 15A NCAC 18A .1947 states that “(a)ll of the criteria in rules .1940 through .1946 of this Section shall be determined to be SUITABLE, PROVISIONALLY SUITABLE, or UNSUITABLE, as indicated. If all criteria are classified the same, that classification shall prevail. Where there is a variation in classification of the several criteria, the most limiting uncorrectable characteristics shall be used to determine the overall site classification.”

2. 15A NCAC 18A .1935(41), Definitions, states in part that “‘(s)oil’ means the naturally occurring body of porous material and organic materials of the land surface.”

3. 15A NCAC 18A .1943 states in part that “(s)oil depths to saprolite, rock or parent material greater than 48 inches shall be considered SUITABLE as to soil depth. Soil depths to saprolite, rock, or parent material between 36 inches to 48 inches shall be considered provisionally suitable as to soil depth. Soil depths to saprolite, rock or parent material less than 36 inches shall be classified UNSUITABLE as to soil depth.”

4. 15A NCAC 18A.1945 (a) states in part “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.”

5. The scientific evidence presented supported the conclusion that the material on Lot 2 was mixed fill material and not naturally occurring soil. As the fill material does not meet the definition of “soil”, the soils on the sites were of insufficient depth in violation of 15A NCAC 18A .1943. Therefore, the site was properly classified as UNSUITABLE.

6. The scientific evidence presented supported the conclusion that the fill material on the site was properly classified as Unsuitable in violation of 15A NCAC 18A .1941 and .1957(b).

7. The scientific evidence presented supported the conclusion that due to the lack of Suitable soil on the site there was insufficient available space on the site to permit the installation and proper functioning of an on-site wastewater system and repair area in violation of 15A NCAC 18A .1945. Therefore, the site was properly classified as UNSUITABLE.

8. The facts in the case support a conclusion that no modified, alternative, experimental or innovative system could be used that would allow the site to be reclassified as PROVISIONALLY SUITABLE in accordance with 15A NCAC 18A .1956, .1957 or .1969.

9. Substantial evidence was presented to support Respondent’s action in classifying the sites as UNSUITABLE and revoking the original improvement permit and construction authorization issued by Michael Thompson on October 2, 2004.

10. The Respondent’s decision to classify the site as UNSUITABLE and revoke the original improvement permit and construction authorization issued by Michael Thompson on October 2, 2004, was made pursuant to proper procedure and was not arbitrary nor capricious.

11. The testimony of Mr. Young and the report from Petitioners’ private L.S.S. made it clear that a viable alternative exists for approving Lot 2 for installation of a wastewater system pursuant to a rule .1948(d) proposal and that the data collected by Petitioners’ licensed soil scientist appears to meet the criteria of Rule .1948(d). However, Mr. Young cannot approve the .1948(d) proposal until he receives a final proposal from the private licensed soil scientist stating what the written substantiating data shows and how, based on the data, the licensed soil scientist has determined that a 25% reduction system can meet all of the criteria in Rule .1948(d). An administrative law judge must make her decision based on the evidence presented by the state, and the provisions of the law and rules as applied to the evidence before her. Based on these findings, the state has demonstrated that it properly applied the laws and rules in revoking the October 2, 2004, improvement permit for Lot 2. The administrative law judge cannot rule on whether the site can be reclassified and a new permit issued pursuant to the data from Petitioners’ L.S.S. because Mr. Young’s testimony shows that the proposal is presently incomplete; however it appears that data is sufficient and that the L.S.S. has only to submit an explanation of how the data meets the criteria in .1948(d) in order to have the proposal approved and permits issued. While the decision is up to the Petitioners, it appears that submission of such data would resolve this matter without the need to proceed to a final decision.

DECISION AS TO LOT 2

The Respondent’s decision to classify Petitioners’ Lot 2 as UNSUITABLE and to revoke the October 4, 2004 improvement permit and construction authorization for Lot 2 should be AFFIRMED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision regarding Lot 2 on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE REGARDING DECISION IN LOT 2

The agency making the final decision in this contested case as to Lot 2 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 who will make the final decision. N.C.G.S. 150B-36(a).

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 person who has been delegated authority by the agency to make the final decision in this contested case is the State Health Director, Dr. Leah Devlin.

NOTICE OF DISMISSAL OF CONTESTED CASE REGARDING LOT 6

The Dismissal of Petitioners’ Contested Case as to Lot 6 is a final decision by the Administrative Law Judge in accordance with G.S. 150B-36c and is appealable directly to superior court under Article 4 of Chapter 150B of the North Carolina General Statutes. Pursuant to G.S. 150B-45 a petition for judicial review of this decision must be filed with the superior court within thirty (30) days after the person is served with a written copy of the decision, or the person waives the right to judicial review of the decision.

This the 26th day of June, 2008.

___________________________________ Selina M. Brooks

Selina M. Brooks

Administrative Law Judge

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