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In re Appeal of Rocheleau

September 28, 2004

IN THE MATTER OF THE APPEAL OF ROBERT AND JULIE ROCHELEAU OF A DECISION OF THE CARVER COUNTY ENVIRONMENTAL SERVICES.


Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*fn1

SYLLABUS BY THE COURT

1. Minn. Stat. § 115.55, subds. 5, 5a (2002), which expressly provide for local regulation of individual-sewage-treatment systems (ISTS), do not preempt Carver County, Minn., Code of Ordinances ch. 52 (2001).

2. Minn. Stat. § 115.55, subds. 5, 5a, explicitly allow for judicial review of the decisions made by ISTS inspectors and, therefore, do not violate the separation-of-powers doctrine.

3. Minn. Stat. § 115.55, subd. 5a, allows for a meaningful opportunity to be heard and to dispute an inspector's determination that an ISTS constitutes an imminent threat to public health and safety and, therefore, does not create an unconstitutional irrebuttable presumption.

4. Minn. R. 7080.0060, subp. 3 (2003), which relies on the definitions set forth in Minn. R. 7080.0020, subps. 28e, 29a, 49b (2003), and the criteria outlined in Minn. R. 7080.0110, subp. 4 (2003), is not void for vagueness and does not create an unconstitutional irrebuttable presumption.

The opinion of the court was delivered by: Halbrooks, Judge

Affirmed

Carver County Board of Commissioners

OPINION

Relators challenge a decision by the Carver County Board of Commissioners affirming Carver County Environmental Services' decision that relators' septic system had the potential to immediately threaten public health or safety and requiring them to submit a new design for a replacement septic system. Relators argue that (1) the county ordinance is preempted by state law; (2) the board's decision is unreasonable, oppressive, arbitrary, without evidentiary support, and based on an erroneous theory of law; (3) the relevant statute violates the separation-of-powers clause by vesting quasi-judicial authority in executive-branch employees without a mechanism for judicial review; (4) the statute violates the due-process clauses of the state and federal constitutions by creating an irrebuttable presumption; and (5) the relevant rules, which have been incorporated into the ordinance, are void for vagueness and for creating an irrebuttable presumption. We affirm.

FACTS

Carver County adopted an individual-sewage-treatment system (ISTS) ordinance pursuant to Minn. Stat. §§ 115.55, .56 (2002) and Minn. Stat. ch. 145A (2002). See Carver County, Minn., Code of Ordinances § 52.002 (2001).*fn2 The ordinance regulates the design, location, installation, inspection, use, monitoring, and maintenance of all ISTSs located in Carver County, and it incorporates by reference all of Minn. R. 7080 (2003), the Minnesota Pollution Control Agency's (MPCA) ISTS program rules, except as amended in the ordinance. Carver County, Minn., Code of Ordinances § 52.001 (2001). The goal of the ordinance is to prevent adverse health and safety effects to the public and the environment from the discharge of inadequately treated sewage. Id. Carver County's ISTS program is administered by Carver County Environmental Services (CCES).

Under the applicable statute, rules, and ordinance, several requirements apply to ISTSs. Relevant here is the "vertical separation" requirement. "Vertical separation" is the vertical measurement of unsaturated soil or sand between the bottom of an ISTS's distribution median and saturated soil or bedrock. Minn. R. 7080.0020, subp. 49b. To measure vertical separation, one must determine the depth of the seasonally high water table or "saturated soil" and compare it to the depth of the bottom of the existing ISTS or the system being designed. This measurement is significant because if there is an insufficient amount of unsaturated soil or sand below the system, inadequately treated sewage can reach the saturated soil and move into nearby bodies of water.

"Saturated soil" is defined as "the highest elevation in the soil that is in a reduced chemical state because of soil voids being filled with water." Id. at subp. 29a. Saturated soil is evinced by the "presence of redoximorphic features or other information." Id. "Redoximorphic features" are defined as "features formed in saturated soil by the process of reduction, translocation, and oxidation of iron and manganese compounds, or other soil, landscape or vegetative indicators." Id. at subp. 28e; see also Minn. R. 7080.0110, subp. 4(D)(5). This is commonly known as "mottling." Id. Generally, mottling occurs when water has remained in soil for a significant period of time, depleting the soil's oxygen and causing the microbes living there to search for oxygen in nitrates, iron, and manganese compounds. When the water ultimately drains, varying concentrations of the compounds are distributed throughout the soil, and the reoccurrence of oxygen creates variances in color. Thus, color variances are a common visual indicator of redoximorphic features, with light spots indicating soil in a reduced state and dark spots tending to show oxidized soil. Although "false mottling" can occur where color variances in the soil are due to the presence of calcium carbonates, as opposed to a reduced environment caused by water in the soil, a "weak acid" test can be used to determine whether calcium carbonates have caused mottling. According to the expert testimony presented in this case, the "other information" evincing saturated soil can include the nature, content, permeability, classification, and slope of the soil, as determined by observation, examination, testing, or reference materials. It can also include hydrology information from reference materials, water-level measurements, and other observations and testing.

Any ISTS built before April 1, 1996, must have at least two feet of vertical separation between the bottom of the system's distribution medium and saturated soil or bedrock. Minn. R. 7080.0060, subp. 3(B). Any ISTS built after March 31, 1996, must have three feet of vertical separation. Id. An existing ISTS is classified as "failing" if it lacks the requisite vertical separation. Minn. R. 7080.0020, subp. 16b. Furthermore, an existing ISTS is classified as an imminent threat to public health or safety (IPHT) if it creates a situation "with the potential to immediately and adversely affect or threaten public health or safety." Id. at subp. 19a. Such situations include discharging sewage to the ground surface or surface water and sewage backing up into a dwelling or other establishment. Id. Discharging to a draintile is also considered an IPHT according to the MPCA's compliance inspection form.

In May 2001, Carver County received an anonymous complaint that the ISTS on relators Robert and Julie Rocheleau's property was discharging sewage into nearby Smith Lake. Shortly thereafter, CCES employees Mary West and Scott Weinzierl visited relators' property to investigate the complaint, where they located the discharge point near the lake and observed effluent coming out of it. The next day, CCES sent a letter to relators requesting that they provide them with information about their ISTS.

Relators subsequently hired Jim Wickenhauser, a licensed ISTS inspector, to perform a compliance inspection. In his December 2001 report, Wickenhauser made no mention of the draintile that ran toward Smith Lake or the PVC pipe connecting the septic tank to it. He did note, however, that the septic-tank depth was such that any drainfield would be down 48 inches and that he had found mottling at 42 inches. Based on these findings, Wickenhauser classified relators' ISTS as an IPHT, pursuant to Minn. R. 7080.0020, subp. 19a, and Carver County, Minn., Code of Ordinances § 52.003 (2001). Wickenhauser also classified the ISTS as "failing" because it had less than three feet of vertical separation between the system bottom and saturated soil, as indicated by mottling at 42 inches. Based on Wickenhauser's report, CCES notified relators that their ISTS constituted an IPHT and ordered them to bring it into compliance within ten months. See Carver County, Minn., Code of Ordinances § 52.075(B) (2001) (requiring that "[a] system determined to be failing or non-complying and an IPHT must be brought into compliance within ten months of the date of discovery").

In August 2002, relators hired Bob Koch, a licensed ISTS contractor, to design a new ISTS. Koch visited the site and found mottling at 48 inches, a slope of seven percent, and a percolation rate of 33.6 minutes per inch. Based on these findings, Koch recommended construction of a shallow trench system with an estimated cost of $5,000 to $6,000, and relators submitted the proposed design to CCES.

West subsequently returned to relators' property on CCES's behalf, where she made a slope determination of four to five percent and observed mottling at 40 to 42 inches. Based on the differing mottling-depth results and West's conclusion that Koch's proposed design would not work due to the lack of adequate separation from the seasonally high water table, CCES refused to approve Koch's design. Instead, CCES told relators to install an at-grade or above-ground system, with an estimated cost of $10,000 to $12,000.

Due to this substantial difference in price, relators contacted the Headwaters Rural Utilities Association (HRUA) for a more definitive answer on the mottling depth, and John Nieber, Ph.D.; Ronnie Daanen; and Dan Wheeler inspected the site on HRUA's behalf. Nieber and Daanen hypothesized that the seasonally saturated layer was no longer at the 42-to 48-inch level indicated by the redoximorphic features but was at a lower level. Wheeler, on the other hand, opined that there was "strong evidence" of redoximorphic features at the site and that the depth of the seasonal water table was between 42 and 48 inches.

Relators then attempted to mitigate the IPHT by excavating a trench on their property and by plugging the draintile that transported the sewage to Smith Lake. This action was taken without CCES's permission and without a permit as required by Carver County, Minn., Code of Ordinances § 52.030 (2001). Shortly thereafter, at HRUA's suggestion, relators retained engineer Brian Van Beusekom to re-determine their system's classifications and evaluate the location of the water table near the tile line.

In October 2002, Van Beusekom visited the site, where he observed that the trench was dry and that there was mottling at 42 to 48 inches. In his compliance inspection report, Van Beusekom stated that there was no discharge of sewage to the ground surface, draintile, or surface waters; no sewage backup into the dwelling; and no situation with the potential to immediately and adversely impact or threaten public health or safety. Consequently, Van Beusekom concluded that relators' ISTS did not pose an IPHT. But acknowledging the different opinions as to the depth of saturated soil, Van Beusekom adopted the "shallow" view of 42 inches and concluded that the system was "failing" because of the lack of three feet of vertical separation between the system bottom and saturated soil.*fn3

Although CCES agreed with Van Beusekom's conclusion that relators' system was "failing," they disagreed with his finding that the system did not pose an IPHT. Instead, CCES concluded that an IPHT existed because there was still discharge of sewage to the drain tile. On November 1, 2002, CCES notified relators of its conclusion and directed them to submit a new ISTS design by November 15, 2002. CCES also informed relators that they could appeal this decision by requesting an administrative hearing or a formal hearing pursuant to Carver County, Minn., Code of Ordinances §§ 52.136 and 52.137 (2001).

On November 14, 2002, Dr. Nieber submitted a report to provide a basis for appealing CCES's decision. He determined that because the drain line had been cut and capped, an alarm system had been installed, and the tank manhole had been raised to facilitate pumping, the system was no longer an IPHT. Dr. Nieber also stated that the system should be replaced with a modern ISTS, to be designed after further testing ...


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