HomeMy WebLinkAbout1997/06/05 - Board of HealthMason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 1 of 57
ATTENDANCE:
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING
June 5, 1997
Dr. Mark E. Trucksses, Health Officer
Brad Banner, Director of Health Services
Mark Tompkins, Environmental Health Director
Pam Denton, Lead Environmental Health Specialist
David Middleton, Attorney -at -Law
Steve Whitehouse, Attorney -at -Law
Marquis Pittman, Appellant
John P. Robertson, RH&L Realty
Robert R. Paysse, Sr
Dan Holman
Hugh Middleton
Robert N. Boehm
The hearing was called to order by Dr. Mark Trucksses, Mason County Health Officer, at
1:07 p.m.. Dr. Trucksses outlined the pattern he wanted to follow for this hearing. First,
he asked the staff to make a presentation of the chronology of events and then stated he
would give the appellant an opportunity to give their case and then give the opportunity
for rebuttal. Then rebuttal, each, one more time. He said he would like to terminate the
hearing by 3:00 p.m.. Dr. Trucksses stated that the next appeal beyond him would be the
Board of Health, and after that it goes into the court system. He asked if there were any
questions? He was asked the time limit of the appeal? He replied that it was within 30
days.
WHITEHOUSE: Just in terms of the time of this issue, the point is that the
decision in this matter by the department was made
October 17, 1996 and the appeal was not filed until October 31,
1996 and the court provides a 10 day time period of filling an
appeal, which was not met.
TOMKINS: Will, the family would be contacted and Mr. Middleton notified on
the phonethat he was appealing it and they ask if the appeal came
in later, is that...?
DENTON:
I talked to Mr. Middleton who stated that he wanted to appeal it.
A faxed appeal came in a day or so and a letter followed there
after. Is that your recollection?
Mason County Board of Health
Pinman Appeal Hearing - June 5, 1997
Page 2 of 57
TOMPKINS:
WHITEHOUSE:
The appeal was actually dated October 31, 1996 when our
department received it.
The can that I am referring to is in Mason County Ordinance
6.04.130 and also the Health Regulations under 15.02 provide for a
10 day period for appeal.
(small inaudible portion)
DR. TRUCKSSES: Was there a fax that came in before the 10/31/96 letter or ....
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
TRUCKSSES:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
I believe the fax came in on the 31 st. I got a copy of the Mason
County ordinance. To my knowledge it is still in effect and I think
the regulations are simply a resitation of that...aw...
What are you... can I point, what?
The ordinance are explained, 04130 and the regulation 15.02.
Yes, looks like it is on a perfect permitters certificate has been
denied suspended or revoked by a health officer.
You need to read the below section, the above section relates to a
person, an applicant, the section below refers to any other person.
Right.
It almost looks like it is for a certificate, designer or installer.
I think it applies to the entire second code.
Chapter 6 is a Sanitary Code of Mason County...
That's been replaced by this, which is...(in audible) regulations.
Some of the provisions have been replaced. That provision has not
been. I have the latest updates for Mason County and they do not
replace that section. I believe those regulations add to that.
Section 15.02 of those regulations...
This regulation to percede Mason County Ordinance section
repealed by the County Board of Health...
There is no...I get updates from Mason County all the time. I will
have to fine Section 15.02 because that has the same provision.
Mason County Board of Health
Pittman Appeal Healing - June 5, 1997
Page 3 of 57
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
MIDDLETON:
TOMPKINS:
TRUCKSSES:
TOMPKINS:
TRUCKSSES:
TOMPKINS:
One of the problems with these codes or regulations, they are
going to adopt a numbering system. 15.02 - All decisions of the
Director maybe appealed for the Health Officer. Appeals must be
made in writing to the Director within 10 days after the decision
which is being disputed
Yeah, but this is for a appeal of certificates of pumpers and
installers and maintance personnel. That is what is...
I will point all other decisions to the Director.
I don't know of any other time period that is provided for us,
so that has to be.
That is clearly written. That is in the regulations and (in audible)
apeal that one. It is right here.
If there isn't some time period, then it means that anybody can file
in any period of time, which obviously is not correct. I can also
indicate that the law states that if there is not an appeal contrary
provided for, then the appeal period is used as an analagous.
Right there...10 working days?
Does it say 10 days or 10 working days?
My impression is that, I reviewed the statues, I
haven't had the opportunity to brief this issue, or in fact, it is the
first time it has been raised. If you would like to address it, I
would propose that we would each have the opportunity to brief
the issue. I have the whiz that 1996 was when that decision was
made and I don't have a calendar to determine how many working
days there were.
I don't either. Does some one have a calender?Can I check the
calendar?
It says here 1997. Is that a typo? Letter of receipt from date of...
Yes. (in audible) 96.
That is a typo.
Yes.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 4 of 57
MIDDLETON: And what date is that, sir?
TRUCKSSES: Will we were looking at the date on the chronology and ...
TOMPKINS: ..haven't even began yet.
TOMPKINS: So is that 10 days from the l7th to the 31st, 10 working days?
MIDDLETON: I sort of mean 10 working days on this calendar.
TOMPKINS: Ok, from the loth to the 31 st? The appeal was in on the 31 st?
TRUCKSSES: That is exactly 10 days -10 working days.
TRUCKSSES: We will go ahead with the appeal hearing. Staff, I will have you
give me your chronology of events and then we'll procede from
there.
MARK TOMPKINS CHRONOLOGY
TOMPINS: I can do it. I will pass out...what I did was compile the appeal, the
chronology that Dr. Trucksses was talking about. What I did was went through the file
and ran chronology of events and also the approved design. I made 10 copies so you
might have to share. (He then passed out the chronology.) Each session is separated by a
purple sheet. The first session is the actual appeal which was submitted by Mr.
Middleton. It was submitted on the 31 st of October.
The appeal was based on four items:
1. Failure to provide proper notice.
2. Annual flooding of property.
3. Proximity to existing wells.
4. Failure to protect public health and welfare.
So that is what is being appealed today is the approval of the septic design on Mr.
Pittman's property.
I will read the chronology which is only 2 pages.
1975 Septic system installed and approved on the property. System
utilized gravity distribution. Mobile home connected to system.
1988-89 Site evaluated by John Denison for future building
/expansion. The evaluation considered the existing system, reserve
area and horizontal setbacks to surface.
11/95 Subsequent permit was applied for.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 5 of 57
12/95 Design approved for 3-bedroom by department. A waiver was
granted reducing the horizontal separation from the ordinary high
water mark and the drainfield from 100 feet to 75 feet.
2/96 A complaint was received, indicating the test holes were located
15 feet from the shoreline and that they fill with water during high
tide.
3/5/96 Pam Denton inspected the site during high tide. The test holes
were dry and located over 15 feet from shoreline.
3/13/96 Pam Denton again inspected the site with Jim Toby during high
tide. Again the test holes were dry; and the system was stacked
out with 85-feet from the surface water when they were there,
which would be marine shoreline. It was 70 feet from the bulk-
head and 58 feet from a grassy area with pockets of water.
3/21/96 Alan Bordon from the Planning Department, went out and
formed a Resource Lands and Critical Area (RLC) checklist.
By his determination, when he established the ordinary high
water mark, the drainfield stake -out indicated the system was
only 62 feet from the ordinary high water mark.
3/25/96 Our department sent a letter to the property owner, notifying
them the design was voided due to system only located 62 feet
from the ordinary high water mark.
6/96 A State Class C waiver was submitted requesting a reduction of
the horizontal setback from the drainfield and ordinary high water
mark from 100 feet to 65 feet. Waiver request contain letters
from Mr. Pittman. and Dan Holman contesting the ordinary high
water mark as delineated by Alan Borden.
7/96 Pam Denton inspected the site with Neil Richard, from the
Department of Fish and Wildlife. Mr. Richard concurred with
Alan Borden's determination of the ordinary high water mark.
9/96 We received a letter from Arnold Tahja, certified designer, the
person who designed the system and he indicated that the Glendon
Biofilter will function satisfactory and not affect Pickering
Passage.
9/96 Mason County Health Department recommended approval of the
Class C waiver allowing the horizontal separation to be reduced
from 100 feet to 65 feet. Recommendation was based on system
meeting Treatment Standard One. Treatment Standard One
reduces septic tank affluent from the B85 which is the
Biochemical Wash Demand from 158 mg per liter down to less
than 10 mg per liter. The total set of solids in normal septic tank
affluent is 54 mg per liter. The Glendon Biofilter reduce that
down to less than 10 mg per liter. The fecal chloroform count in
normal septic tank affluent is at 421,000 per 100 ml and the
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 6 of 57
Glendon Biofilter would reduce that down below 200 chloroform
per 100 ml.
9/96 At that point the waver was forwarded on to the Washington
State Department of Health for concurrent.
9/96 John Elisson, a Wastewater Management Specialist for the
Department of Health, reviewed the design of wavier request and
concurred with the Health Department recommendation as
a proposal that all mitigation measures for that wavier.
10/96 The septic system design was approved for 3-bedrooms by the
Mason County Health Department.
10/31/96 Mr. and Mrs. Middleton submitted their appeal. Their appeal was
based on 1) failure to provide proper notice, 2) annual flooding of
the property, 3) proximity to existing wells and 4) failure to protect
public health and welfare.
11/15/96 A letter was sent to the property owners notifying them of the
appeal.
11/18/96 We received a letter from David Middleton, Attorney for
appellant. Letter stated six reasons why the county should reverse
its decision and rescind the septic design approval. That letter is
found attached to the wavier appeal request in your packet.
12/96 A meeting was held to attempt to resolve the concerns of the
appellant. The meeting was attended by Hugh Middleton (the
appellant), David Middleton (the Attorney), his Attorney Bob
Boehm a professional in Construction Hydraulics, Mark Tomkins,
Bill Russell a designer of Systems, Pam Denton,
John Robertson Realtor on the property, Steven Whitehouse the
Attorney for the Pitman's and Brad Banner. The concern of Mr.
Middleton included the set back to shoreline affect on shellfish,
concern for his well which is only 31 feet deep, and flooding of the
property. The meeting concluded with Mr. Middleton indicating
he would contact the office regarding additional appeal or possible
litigation measures.
1/97 In January I saw Mr. Middleton. I inquired about the appeal and
what was happening with that. He indicated to me that he would
contact his son and get back with our department. At that time he
indicated that his well was only 94 feet from the design I staked
out and he would like this one to be 100 feet from his well.
What is not included here is that I asked Mr. Middleton to address all this at once
and so that was not looked at because he was going to ask if there was anymore
additional concerns.
3/97 We received a letter from David Middleton, the attorney for Mr.
Middleton. The letter indicated they wish to proceed with the
appeal.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 7 of 57
4/7/97 I notified all parties on April 7th, 1997 of the appeal.
The other item that is in the packet that I included, was a copy of the permit and the
design that was approved. In addition, I copied the wavier forms and letter from John
Eliasson who concurred with the reduction and the horizontal setback.
This is a Glendon Biofilter. It meets Treatment Standard One without disinfection. It is
an approved devise by the Washington State of Health and it meets all the requirements
they set forth for reducing the horizontal setback between the ordinary high water mark
and drainfield beyond 55 feet.
I will be glad to answer any questions as would Pam Denton as well.
Dr. Trucksses received a fax today in the mail which is addressed to myself and to you.
It is some information from David Middleton.
DAVID MIDDLETON ATTORNEY FOR APPELLANT
D. MIDDLETON:
DR. TRUCKSSES:
D. MIDDLETON:
The chronology which was presented was certainly more
comprehensive than the one I put in with my packet and I would
have to say that, I don't see any inconsistency there so far with
regard to appeal and this piece of property. The bases of our
appeal, on the bottom line is, we think that this septic system is
being...well, there is several problems with it. First of all, when it
was initially approved back in 1995 it was indicated that it was 75
feet from the ordinary high waterline on one side, that would be
the east side; and was 100 feet on the ordinary high waterline on
the west side. When it was appointed out to the County that was in
fact not the case, the approval was withdrawn. Subsequently, a
request for a 55 foot setback was made and ultimately granted.
Is that on the east side?
It is on both sides and stated that this is a point of land which is
boarded on east, west, and south by water. The two sides we are
concerned about in regards to the septic system are the east side
and the west side. The west side is a mud -flat -grass tidal flat area.
The east side is a rocky beach which bound by a concrete
bulkhead. In any event, the measurements still don't fit in. The
measurements still don't fit! In order to place this system where
they want to put it, they are going to have to be less than 65 feet
from the bulkhead, from the ordinary high water mark on the west
side. Further, the bulkhead is a type of salvation of 15.5 feet and
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 8 of 57
as we are going to see...the tide is not on a regular bases and
several times a month goes over that level. What I would like to
do is ask several questions of my father and put him on record to
tell his part of the story.
TESTIMONY OF HUGH MIDDLETON
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
Your the property owner of the property next to it(Pittman's
property)? Your on the north side, is that right?
That is right.
How long have you been familiar with the property we are talking
about here today?
The property we live on has been in the family since the 1950's
and we have lived on this property for the last twelve -years.
Can you describe the property for me?
Well, it is a point of land. The entire point has probably, ten
houses on it. You described it as having water in the front and
water in the back. In fact, there is kind of a mud flat, you
mentioned grass growing down to the ordinary high waterline. Is
this the ordinary high waterline?
Not to the ordinary high waterline but to the mean high tide.
Where are shellfish beds were located?
Primarily in the back, although there were some spots in the front
that do have shellfish, on both the west and the east.
Your property is bound on two sides by water?
H. MIDDLETON: Yes.
D. MIDDLETON: Are you to the north?
H: MIDDLETON: Yes.
D. MIDDLETON: When were you first notified of the septic approval? You were
called? What happened when you were notified of the septic
approval?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 9 of 57
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:.
D. MIDDLETON:
H. MIDDLETON:
I was alarmed when I found out it was for a 3-bedroom house.
Why?
Because we have a 31-foot well that is located on the southerly
part of our property. Plus, I am concerned about shellfish and
pollution of the water.
Is there any particular reason why your concerned about the
pollution to that particular piece of property we are here about
today?
Yes, because of what I have heard from other people. My interest
was sparked by comments other people made about what could
happen from a septic system in this situation.
Have you had a chance to observe the tidal effects on the point of
and south of his piece of property?
Absolutely!
Will you tell what you have seen as far as height the water
reaches?
I have seen the entire area inundated, leaving, basically a point out
where the boat houses...maybe not the entire area, but I have seen
alot of inundation, as much as a foot or so through the whole thing.
Have you had the opportunity to see it submerged?
There was a time there where Mr. Roseineyer actually resided on
this point called Roar.
Did he have a mobile home there?
Yes.
Have you ever seen the mobile home on an island land?
I have not necessarily seen it on an island land, but I have seen
water underneath the north east corner of the mobile home.
D. MIDDLETON: Have you had a chance to look at the drawings of land?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 10 of 57
H. MIDDLETON: Yes.
D. MIDDLETON: Have you ever seen water in the area of the septic system?
H. MIDDLETON: Yes, I have.
D. MIDDLETON: Have you worked in and around the water?
H. MIDDLETON: Yes.
D. MIDDLETON: What do you do?
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
I am a Marine Contractor and I build docks, and strike pilings.
You have some understanding of what tidal elevations and so on
are?
I believe so.
Looking at the drawings can you determine where the tidal
elevation of the bulkhead is?
H. MIDDLETON: Yes.
D. MIDDLETON: What is it?
H. MIDDLETON: ' 13.6.
D. MIDDLETON: In the area of the land where the septic system is to be put, what is
the elevation there?
H. MIDDLETON: I believe it is 15.6.
D. MIDDLETON: Have you observed or look at tide elevations predicted for that
area?
H. MIDDLETON: Yes, I have.
D. MIDDLETON: In fact, attached to my brief is a tide table. Have you looked at
that?
H. MIDDLETON: Yes.
Mason County Board of Health
Pittman Appeal Hearing - lune 5, 1997'
Page 11 of 57
D. MIDDLETON: In looking at this tide table, I see tides up to 13.4 feet for January
1997. Now how can you determine what the tide is where you are
located?
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:.
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
You have to factor the tide using the information provided by
NOAA, which is in the tidal book.
Is the adjustment on the next page?
Yes.
In looking at these predictions, how do I determine what the tide is
going to be in your area?
You use the multiplier affect here. The multiplier of 1.216
conservative, using water's landing.
What do you normally use when calculating?
I normally use Arcadia, because it is closer to my area, which is
1.28.
If you look at the first number on the site chart, would you
multiply that by 1.26 to determine what the tide is going to be near
you.
Right.
At the tidal elevation of 15.5 feet, if I had calculated that correctly,
that 12.3 feet on this chart is that 15.5 foot tide?
It is pretty close.
How many times in January and February is it predicted that the
tide elevation is going to be over 15.5 feet?
In January there are 7 cases, or 7 days, or 7 tides
and in February there are 6.
Have you ever determined what the highest predicted tide for
January was?
H. MIDDLETON: It was 13.4.
Mason County Board of Health
Pittman Appeal Healing - June 5, 1997
Page 12 of 57
D. MIDDLETON: What that would come out to?
H. MIDDLETON: I don't have my calculator.
D. MIDDLETON: Does 16.88 sound about right?
H. MIDDLETON: Yes, that is about right.
D. MIDDLETON: Have you had any concerns about where your well was located,
when you reviewed the document that were submitted to Mason
County?
H. MIDDLETON: Yes.
D. MIDDLETON: Why was that?
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
D. MIDDLETON:
H. MIDDLETON:
Well, it is a 31 foot well. After speaking to people who are
knowledgeable about water wells, I developed a concern for the
depth of the well because, as I understand it now, it is considered a
very shallow well and susceptible to problems.
Is everybody on the Point on the same aquifer?
As far as I know they are. I know that the next- door neighbor is.
Have you ever expressed this concern to them?
Yes.
Did you ever talk to the County about your concerns.
Yes. I talked to someone in the Department of Health about my
concern about approval of the septic system.
Did you ask them to come out and look at the property?
Yes, I have.
What did they tell you?
They said they didn't make site calls without being invited by the
County, and they coulyln't do it for an individual, for reasons of
political integrity.
Mason County Board of Health
Pittman Appeal Bearing - June 5, 1997
Page 13 of 57
D. MIDDLETON: I am finished.
WHITEHOUSE: You mentioned 94 feet from your well to where the septic system
would be placed, was that correct?
MIDDLETON: After the last meeting it was determined that nobody had located
our well, so I went out looking and ran a tape, showing that it was
94 feet from the system.
WHITEHOUSE: How did you run a tape?
MIDDLETON: I ran it from my well to the stakes.
WHITEHOUSE: In between your well and the stakes, is there not your house?
MIDDLETON: No.
WHITEHOUSE: It's a straight line?
MIDDLETON: Yes.
WHITEHOUSE: If the distances were reduced to 75 feet here, that would be well
within that distance, is that correct?
MIDDLETON: What?
WHITEHOUSE: If the distances here were reduced to 75 feet, then that 94 feet
would well be outside that and there would be no problem?
MIDDLETON: You mean a variance?
WHITEHOUSE: No. If it were reduced to 75 feet, you don't need a variance to
reduce it to 75 feet. If it were down to 75 feet, the distance would
be fine. Isn't that correct?
MIDDLETON: I would think so. Yes!
WHITEHOUSE: Now there were perk holes dug on Mr. Pitmans property, is that
not correct? Now your familiar with those, aren't you?
MIDDLETON: Yes, I dug them.
WHITEHOUSE: There is an accredible layer down there?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 14 of 57
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
I am not qualified to answer that.
Why aren't you?
I am not a soil scientist.
WHITEHOUSE: Do you know what clay is?
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
Yes.
Wasn't there clay down there?
I believe I saw sand and rock. I don't remember seeing clay.
You reviewed the information from the County and you are aware
that the County has determined that there was an impermeable
layer down 27 inches. Is this correct?
I don't remember and it doesn't matter to me.
WHITEHOUSE; How did you determine the elevations?
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
They were on the survey.
In the management of tidal elevation, is it going to be 16.88 feet?
I don't believe so, but 16.88 feet is the maximum predicted
elevation.
In looking at that map did you notice on the right hand side of that
map, mid -way down? What does that say?
Vertical Data Assumed.
Do you know what that means?
An assumption.
It means this data has not been verified and Mr. Holman is going
to indicate that is nothing but a guess. What you are testifying to is
not necessarily correct. Have you ever experienced any water
quality problems with your well?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 15 of 57
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
No, I haven't.
How long has your well had been there?
Since the 1950's.
There use to be a gravity fed drainfield, and there still is a gravity
fed drainfield on Pitman's property that was used at one time and
that gravity fed drainfield, even with a possible and pervious layer
is not going to bother your water quality, is that not right?
I assume so.
Your concerned about the shellfish and the well, but you don't
have any evidence that what is being proposed and approved by the
County, will cause any problems with your well or with the
shellfish.
I haven't had an answer to my question if these are affected who
will be responsible?
You don't have any evidence that this will adversely affect your
well or shellfish?
I was trying to preclude a problem.
But you don't have any evidence that this will adversely affect
your well or the shellfish, do you?
No, but I am asking if there is any proof that it will?
When you referred to the bulkheads being at 15.6 feet were you
referring to the top of the bulkheads?
Yes, I was referring to the top of the bulkheads and (in audible)
survey.
Are you aware that the mean higher high tide for this area, is
north of this area at Walker's Landing, is 14.15 feet?
I do not remember the number.
WHITEHOUSE: Would like me to show it to you? Notice the highest observed
water level is 15.50 feet. Is this what it says?
Mason County Board of Health
Pittman Appeal Heating - June 5, 1997
Page 16 of 57
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
MIDDLETON:
WHITEHOUSE:
Yes it is.
The document that you just looked at, had the time date that the
tides were observed at, was March 1 through 17, 1978. Well you
please verify this fact?
Yes.
It was established that the tidal elevations were a best guess.
Because of your experience on the water, is 15.6 feet a good guess
Yes it is.
How high have you observed the water over all that whole pit?
I would guess about a foot over the top of the bulkhead.
Is it correct that you have seen water inundating the area where the
system is to be placed?
Yes, I have.
What was the depth of the water there?
I don't know. I didn't go out and measure it.
I have no more questions.
D. MIDDLETON: No more questions.
QUESTIONS ASKED BY OTHERS
Hugh Middleton was then asked by (not sure who this is) if he knew where his own
system was in relation to his own well. He said that he did. (Not sure who this is) also
asked him if he knew how far. He commented that it was on the other side of his house.
He was asked if it was 20 or 80 feet and he replied at least 80 feet and probably 100 feet.
He said he didn't know what the regulations were when they put it in. He was also asked
if the water goes over his septic system and he said no that it never does because they are
at a higher elevation.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 17 of 57
TESTIMONY OF ROBERT BOEHM
BOEHM:
I am retired but still Engineers with some frequency. I have an
Engineers License with the State of Washington, a BS Degree, MS,
Degree in construction and hydraulics. Presently I am trying to
restrict my activities to Mason County and most of my work is
directed at shorelines and/or uplands structures or upland geology
type problems. I maintain my civil license which covers the
hydraulic portion of my work.
MIDDLETON: In the course of your career have you designed any septic systems?
BOEHM: I have designed approximately five of them but I avoid them if I
can_ The most recent one I did here in Mason County, Mr.
Tompkins is familiar with it. I also consult with people on the
development of their property and I refer them to liscened
designers. The other septic systems were done, years ago, in King
County.
MIDDLETON: He was asked when he became aware of the situation in regards to
the Pittman property?
BOEHM:
It was sometime in 1976, I don't have the specific date. Mr.
Middleton asked me to look at the property because he had some
concerns. At that time, when I visited the site, Mr. Middleton
pointed out the test holes which were still in existence and there
was water in the test holes. He indicated they had used certain
points of reference for their measurements for off -set. I deal too
much with shoreline people to accept what they had shown on
their drawings. They had not shown proper locations for the
off -set . The bulkhead line is an off -set line and the vegetation line
is, between upland and lowland vegetation, the line of demarcation
for ordinary high water which is accepted by fisheries and our
Mason County Shoreline.
MIDDLETON: How does the ordinary high water defined here?
BOEHM: That should define the off -set point to establish the closes point the
new system; in other words, that is your datum point from which
you then get your off -set.
MIDDLETON: Did you determine that the ordinary high water line was different
on the westside between salt water vegetation and upland
vegetation? Would that be an accurate statement?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 18 of 57
BOEHM:
It would not be an accurate statement. The original drawing they
had shown a offset up near that mean high tide line, and likewise,
on the eastside they had shown the off -set from a mean higher high
tide line as their basic off -set for the original submission. That is
what I was looking at when. Mr. Middleton asked me whether I felt
what was being presented was right.
MIDDLETON: So your referring to a drawing which was submitted in the original
application? Your referring to this drawing, here is that right?
BOEHM: Yes. If you'll note on the right hand side they'll show a 75 foot
off -set. Let me correct myself - they have used an ordinary high
tide line, an elevational (in audible). is not correct for that site, but
their off -set should not have been taken from that point, it should
have been taken from the outside face of the bulkhead.
MIDDLETON: And that is on the eastside of the property?
BOEHM:
Yes, on the eastside. On the westside, that is again, the area where
it requires some degree of competent to establish where the
ordinary high water line is.
1VIIDDLETON: In that particular drawing, that is showing a setback from what
defines here and that is in the initial application, is that right?
BOEHM: That is the only thing that was available at the time I looked at the
property."
MIDDLETON: When you went and .looked at the property did you do any
measuring of the ordinary high water tide or ordinary high water
mark to detennine...
BOEHM:
There were no measurements taken at that time. Visual
observation just to see what the datum points were and also
whether all the information had been included. I assured Mr.
Middleton that there was no off -set from his well and this is a very
specific requirement, the law, that all adjacent wells would be
under consideration, should be shown on the application.
MIDDLETON: That is not shown on the initial application?
BOEHM: That is not shown.
Mason County Board of Health
Pittman Appeal Hearing - Juoe 5, 1997
Page 19 of 57
MIDDLETON: Did you come to any opinion after observing the land whether it is
appropriate for this?
BOEHM: My work for Mr. Middleton, at that point, is under the established
criteria for septic systems; I felt that lot was not a visible lot.
MIDDLETON: Consequently, a application for a variance was filed for a less than
55 foot setback, is that right?
BOEHM: Yes, I am aware of this as I reviewed for this meeting.
MIDDLETON: It was approved, did you know that?
BOEHM: Yes, that is why it is here.
MIDDLETON: Did you have a chance to go out and look at the property to see if
that 55 foot setback remedies the problem?
BOEHM:
I have been out to the property using a drawing that has been
performed by the Holman Associates firm - I used that as the bases
and upon that drawing that is mine, you'll see an area in pencil that
I used. I used that pencil mark to bring it down to 11x17...
MIDDLETON: ...the green pencil mark?
BOEHM: ...because I needed to extend it on 11x17 paper, in order to show
the relevance to the Middleton well.
MIDDLETON: Did you take measurements at that time?
BOEHM:
Yes, I took measurements that actually reflected the well on the
Pittman property is inside the building. What was done was,
taking a straight line through the structure, so that we would get an
off -set parallel to each side of the structure for establishing a 100
foot off -set. And this will be amplified by this next drawing, and
likewise , from the Middleton well site, which is inside a garage
building, we did the same thing. Taking off -set from each side,
running them off 100 feet to establish a line from which reference
could be made. And from that 100 foot line, would establish out
from the Middleton and Pittman location, that ark which was 1.00
foot drawn. Would you show them the drawing?
MIDDLETON: Your talking about this this red line drawing?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 20 of 57
BOEHM: Yes. This is the off -set at 100 feet from the Middleton well; this
ark is the 100 foot off -set from the Pittman property well."
MIDDLETON: What are the orange lines here?
BOEHM:
The orange line reflects a 65 foot off -set on each from the
bulkhead and on the left side I established who stakes, which are
still in the ground, which establish the ordinary high water mark.
And took parallel lines again at 65 feet to establish the off -set for
the 65 foot. The 65 foot entered into it, as a result of the variance
that had been sought and accepted for change.
MIDDLETON: Now what dimensions were that...looks to me like you've drawn
an area here, which...
BOEHM:
Yes, inside the orange lines here and the ark lines in red, would
actually fulfill. a 65 foot off -set and a 100 foot off -set in the case of
the well. That dimension across there is roughly 30 feet in one
direction and additional is convex in the other direction, and it
varies from a little over 20 feet up to a maximum of 30 feet.
MIDDLETON: What is the size Glendon proposal?
BOEHM: On the their drawing it shows their required area 43 feet by 28 feet,
which is a true rectangle.
MIDDLETON: We heard talk of tidal elevation, how does that work in installing a
septic system?
MIDDLETON: Basically your tidal elevation, on most septic systems, your off -set
from the water. It is efficient because usually we are talking about
septic systems being built inland when there is only one place of
water. Here, this property is in double jeopardy from both
directions in terms of off -set. It is difficult to give a firm response
to your answer because your water table is a direct relationship to
the hydraulic head that is developed by your water level on each
side of this property.
MIDDLETON: In regards to that water level, how does that affect the system that
is being proposed here today?
BOEHM:
Depending on the ability of that level to be maintained - in other
words the separation level to be maintained on the property, then it
might not have any consequences. But, when you have a property
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 21of57
of this nature the tidal level enter into it because your established
barrier level is no longer a play layer underneath. It is actually the
level of water that is chief over the property.
MIDDLETON: What is a separation?
BOEHM.: It is the area that is actually available for absorption of the affluent
from the system.
MIDDLETON: In this particular case when we are talking about separation layers
as defined in the WAC, can you tell me what that is?
BOEHM: It is the actually depth of the ground line down to your
impermeable layer.
MIDDLETON: In this particular instance what is the vertical separation for this
system?
BOEHM: From the existing ground line - zero separation.
MIDDLETON: Why is that?
BOEHM: It is because of the tidal effect on this property. -
MIDDLETON: In regard to the tidal elevations that we previously discussed, did
you form and opinion in how that would affect this particular
system?
BOEHM:
First of all, it would render inviolate the bases from which the
system .had been submitted and proposed - correct 27 inch
seperation.
MIDDLETON: In fact there is a zero seperationn?
BOEHM: That is my interpretation at this time.
MIDDLETON: With regards to actual predicted tides that we talked about earlier,
is that what we actually see?
BOEHM:
No, there is a number of elements that enter into tide elevation and
probably the most basic ones...your tables are reasonably accurate
but they will vary with actually barometric pressure. If you have a
decrease inbarometric pressure of one inch over a period of 1 to 2
days, you will have a rise in your water level - your tidal level - of
Mason County Board of Health
Pittman Appeat Hearing - June 5, 1997
Page 22 of 57
1 foot, 11/2 inches. That is not in extreme storm conditions, that is
a moderate stone with a 1 inch reduction in barometric pressure.
MIDDLETON: How many times a year does that happen?
BOEHM:
In the last three years we have had some very significant storms
and the lows have lasted anywhere from 3 days plus. With respect
to answer frequency, it will fluctuate from year to year, there is no
predictability to what has happened in Mason County over the
past year to previous 3 years.
MIDDLETON: Nowthat was one inch reduction to barometric pressure, is that
right?
BOEHM:
That is one inch. For everybody's identification, ordinary high
water is predicated on a mercury level of 29.9 inches. If you have
a mercury level of 28.9, which is a one inch reduction, you have a
rise in water level of 1 foot, 1 1/2 inches. It should be noted, that in
addition to this factor, when ever you have water subjected to wind
you have the added wave effect, which attenuates in vertical affect
the height of the water. So potentially, if you have low barometric
pressure combined with storm wind action you can develop tides
that are wellin exist what would be recorded in the tide table.
MIDDLETON: You noted a 2 inch reduction in barometric pressure, is that right?
BOEHM: But that is noted under severe storm conditions. We have had
those in the last five years, but we have not yet had one in the last
year.
MIDDLETON: Now if it goes down another one inch, you have noted here that the
increase in tidal elevation is another 1 foot, 11/2 inch, is that
correct?
BOEHM: Yes.
MIDDLETON: So potentially it would be a2 foot, 3 inch increase here based on
barometric pressure, excluding any wave action or wind...
BOEHM: That would be normal tidal rise result inbarometric pressure.
MIDDLETON: Have you ever had an opportunity to observe out at Pickering
Passage?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 23 of 57
BOEHM:
MIDDLETON:
BOEHM:
MIDDLETON:
BOEHM:
MIDDLETON:
BOEHM:
MIDDLETON:
BOEHM:
1VIIDDLETON:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
Yes. Three years ago, I was working on a restoration of a bridge,
which is approximately one mile north of this site and during the
process of this bridge construction, we actually measured 17.5 as
the elevation that had been reached.
So you actually observed a 17.5 inch tide?
Yes. As I said that was one mile north.
How high over the bulkhead of the property we are talking about
today?
That would be two feet over the bulkhead.
I noticed on this drawing that there was a site plan for a home, do
you recall that?
On one of them it shows a proposed residence.
And that elevation is noted at 1.5.5 feet?
That is correct. It appears that every elevation that has been
indicated, except with one section on your paper work, none were
correlated back to the actual condition in Pickering Passage.
No further questions.
Your aware that the Noah Mean High Higher Tide is 14.15 feet?
Using the factor of 1.26, a conservative one, do you want to punch
it out? Do you want the Mean High, not the NOAA Higher?
NOAA says the Mean High Higher Tide is 14.15 feet for that area.
That is not only in NOAA but is duplicated through the Mason
County Shoreline Advisory Board.
Ok, and you are aware that Mr. Holman's map says `assumed'?
I am well aware of that! I am aware of Mr. Holman and I
understand why he would put that note on the drawing. But on a
professional bases, I don't think he is off but a couple of bases, if
he were off.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 24 of 57
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
Have you surveyed it?
Pardon?
Have you surveyed it?
I have not surveyed it.
So you don't know?
I shouldn't a...I wouldn't say that. I have had occassion to request
and off -set to check the 15.6 last night.
WHITEHOUSE: Ok. The a...
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
MIDDLETON:
BOEHM:
MIDDLETON:
And I..., let me finish my statement. And it concurred within a
couple of inches exactly with Mr. Hglman's drawing.
Do you remember the bulkhead out at the Pittman Property?
Very specifically.
Ok. It is about 3 feet bulkhead?
It is approximately a 3 feet bulkhead, and the area in question, the
back bill behind it is depressed approximately a foot lower than.
the top of the bulkhead.
Now the you indicated that you had actually designed five systems
and had consulted on others, is that.... I am sorry, I apologize!
You indicated that you designed five systems and consulted on
some others, is that right?
Yes.
Ok. Have you ever worked with the Glendon System?
I have no knowledge of the Glendon System other than what has
been presented here.
Ok. Now the ordinary high water, you expressed an opinion as to
ordinary high water. The ordinary high water is a legal term.
What legal definition did you use for that?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 25 of 57
BOEHM: The definition that was used by Shoreline and by the Department
of Fisheries is the demarcation between uplands vegetation's and
marine vegetation. And if there is a clear demarcation in the
vegetation, then that is the line of ordinary high water.
MIDDLETON: We then are not talking about Mean Higher High Tide or anything
else. We are talking about the line with the wave action is so
frequent that it forms a line of vegetation, is that not correct?
BO.EHM: This is correct because the most expedient way of expression is the
level in which the saline content of the soil will no longer work to
blend vegetation.
MIDDLETON: Now, I have to take issue with that. Up until that point I was in
agreement with you, but I need to take issue with you at that point.
Your aware in the law, infact, whether your looking at shoreline or
other things, there are infact different definitions of ordinary high
water mark, aren't you aware of that?
BOEHM: That is a very subjective judgment!
MIDDLETON: Ok.
BOEHM: The reason I have raised the saline aspect into it, because that was
a result of the determination made by our Department of Ecology
on several sites on which this question has arisen.
MIDDLETON: Ok, but regardless of your determination, you or the Department of
Ecology, or Mason County, or you or anybody else, is bound by the
letter of the law, aren't they?
BOEHM: I would think so.
MIDDLETON: Now do you know what chapter of the Washington Administrative
Code gives definition for on -site sewage systems?
BOEHM: I do not. As I told you before, I (in audible) to accept instructions
of necessity to perform.
WHITEHOUSE: Ok. Now the Washington Administrative Code 246-272-01001,
which is the definition of Chapter 246-272 is the section that deals
with on -site sewage systems and this is the definition section of
that chapter. And it is assigned Ordinary High Water Mark means
the mark on lakes, steams and tidal waters found by examining the
Mason County Board of Health
Pittman Appeal Hearing - Iune 5, 1997
Page 26 of 57
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
beds and banks, and ascertaining where the presence and action of
waters are so common and usual, and so long continued in all
ordinary years, is the mark upon the soil; the character, distinct
from that of the abutting upland with respect to vegetation. If that
condition exists on the effective day of this chapter, or it may
actually change there after. Then after that it has a definition: If
you can't use this definition mean higher high water; if you cannot
see a mark of vegetation.
Now that doesn't say anything about salt water tolerance
vegetation does it?
It does not because the salt water tolerance is a cent above what is
defined as....
It is just a line of vegetation, is it not?
Under evaluation by, supposedly authoritative organization in this
state....
Excuse me, sir! I am asking about what was bought, I am not
asking about someone's opinion at the Department of Ecology.
The law says that ordinance defines ordinary high water for...a
onsite sewage systems, where it says anything about salt water
tolerant vegetation.
Let me use...
(in audible) anything, sir.
Let me use....
It calls for a researchable corporate legal superior
(in audible). It doesn't say saltwater tolerance doesn't
take.... I am asking if he can (in audible).
If you remember, as an application of what it says is that 'the line
of demarcation at the site is between upland and lowland
vegetation.
Where does it say that?
How that is derived gets back to the statement....
Where does it say that in the law, sir?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 27 of 57
BOEHM: Pardon?
WHITEHOUSE: Where does it say that in the law?
BOEHM: You just read it. Lines of demarcation...
WHITEHOUSE: It says between vegetation; it doesn't say anything about salt water
tolerant vegetation.
BOEHM:
That...I think you are hanging on a point that you have not
understood my response to. I said the saline, (in audible), is over
and above that specific demarcation. Because....
WHITEHOUSE: Why is that over and above, sir?
BOEHM: Why do you think that line of demarcation exists? It only exists
because the difference of the plants being able to tolerate salt or
just not being able to.
WHITEHOUSE: I am aware of that, in that the law shows that to have that kind of
definition ordinary high water, it could use that definition, sir.
Could it not...
BOEHM: I could tell you the definition they use is amplified. A vast
majority of conditions they inquire, only when they come into
question. And you do have certain types that you will have the
revegetation migrating slightly upland. You will have certain
situations, at certain times of the year, when the upland vegetation
will migrate onto the marine area.
WHITEHOUSE: I think Dr. Trucksses can read the regulations and I would be
happy to supply a copy of it, but for the record it is Washington
Administrative 24627201001 and I can provide a copy of that.
Actually, we have a copy available, also.
And your aware that on both sides of this property there is...when
you go from the bulkhead, west, you have about 10-foot strip of
vegetation and then you have clearings of staple line and then you
have gravel beyond that. Is that not correct?
BOEHM: Your (in audible) is not quite accurate, that is marine water (in
audible).
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 28 of 57
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
Give or take a couple of feet - but my point was not to say it was
precisely 10 feet. My point was to say, is there not a distinct line
of vegetation...the bulkhead, the vegetation (a distinct line) and
then gravel.
You did mention west side, bulkheads on the east side.
I see. I am talking about east side - I mean west side...ah, I am
going to ask about the east side.
Bulkheads on the east side.
I am sorry, your correct. Your correct. I apologize. So let me ask
you about the east side first.
On the east side there is a very distinct line of demarcation.
Ok. And, and...see that picture there? Does that look familiar to
you?
This is on the east side. This is the bulkhead.
Um..huh.
The line of ordinary high water is at the base of the bulkhead, on
that side.
On that side? The first thing I asked you, there is a clear line of
demarcation there, is there not? Between the vegetation and the
gravel.
The line of demarcation is at the base of the bulkheads.
Between those? In one small. spot?
If you went above the bulkhead you would .have upland vegetation.
I am not asking you to reach a legal conclusion. I am asking you -
is there not a clear line of demarcation between the vegetation and
the gravel?
Yes.
Ok. Now, your familiar with the tide charts?
Mason County Board of Health
Pittman Appeal Heating -June 5, 1997
Page 29 of 57
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
But that vegetation is a marine vegetation!
You have already made that point, sir. We have disagreement, the
legal significance of that. Ah...your familiar with these tide
charts?
(In audible).
Your familiar with these tide charts (in audible).
Very familiar.
Now, let's look at March the 3rd with another time chart. Lets
look at March 3. Ok? I am looking at the higher....
Isn't this December 3? You said March.
I'm sorry! December 3rd. And a Tuesday here. And you see, the
higher high tide for that day has a height of 7.5 feet.
Nope, the term is not higher high tide.
Oh, I am sorry...1 1.4 feet.
Is the high tide.
11.4 feet. Ok, and then you have to translate. You have to...you
have to use a bank of 1.26. Isn't that correct?
That is correct!
Ok. And 11.4 times 1.26 would be 14
Would be 14.36.
Ok, 14 tithes 1.26? That doesn't work either. Ok, 14.25.... David
Middleton said, We got 18 feet.
Then everyone laughed.
WHITEHOUSE: Ok, 14.35. That would have been the mean higher high tide that
day.
No, not mean higher high tide. That would have been the higher
of the high.
BOEHM:
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 30 of 57
WHITEHOUSE: So that means the higher the high tide on that day, is slightly
higher than the mean higher high tide established by Noah, the
14.15.
BOEHM: That is correct!
WHITEHOUSE: Ok. Now....
BOEHM: Now you have to understand what a mean is. Except it ends with a
plane of relevancy.
WHITEHOUSE: Your aware that the Shoreline Management Act?
BOEHM: Yes!
WHITEHOUSE: Mr. Pittman, needed to put in some fill and elevate this property as
long as he did it back to the bulkhead - elevate it up a foot, he
could do that? Are you aware of that?
BOEHM: He could do it only with certain restrictions
WHITEHOUSE: You need a permit and the restrictions isn't that right?
BOEHM: Al] the restrictions are is the amount of fill that would be
permitted.
WHITEHOUSE: But he could do that? Ok. Now do you also understand how the
Glendon system works?
BOEHM: I think 1 have a good understanding from what they....
WHITEHOUSE: Ok. In a Glendon system it is like...potentially if you have ground
level here, the come is put in like this and then you put a
man...actually it should be more level. You put a man over like
that and then everything gets piped in down to here and then there
is material here and the effluent comes up here, and kind of comes
over the top. Like if you put a napkan in a glass of water, the
capillary action would come off over the top.
BOEHM: Ok, capillary action.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 31 of 57
WHITEHOUSE: And so, the...inorder for effluence to get out of here, regardless or
not whether or not we have 20 feet of water over, the effluence
still has to go through the filter material. Right?
BOEHM: Correct!
WHITEHOUSE: And also to avoid any intrusion into this system here - if there was
a little bit of salt water on here, then all you gotta do, isn't it, is to
raise...to set that up a little higher and to set this up a little higher
and that avoids any intrusion of salt water in there, doesn't that?
BOEHM: But the system you have proposed calls for a 27 inch vertical
separation here
WHITEHOUSE: No, it does not sir. It says there is a 27 inch vertical separation....
BOEHM: But that is predication upon the submission. Because you still
have to get your effluent into an absorbent material.
WHITEHOUSE: Um...huh!
BOEHM: You admit that? You have to get your effluent into an absorbent
material?
WHITEHOUSE: Generally speaking! Not every minute of every day. Ok.
BOEHM:
Assuming, you no longer have vertical separation, this is .high tide
and we have already shown, potentially, from the ground
elevation....
WHITEHOUSE: How...inspection....
BOEHM: ...you can have up to 2 feet rise, which will fully degrade your
lawn system.
WHITEHOUSE: I don't think it will totally degrade anas . Do you have any
proof of that?
BOE.HM: Only knowledge of hydraulics.
WHITEHOUSE: Ok. And....
BOEHM: You no longer will have any capillary item, for one thing.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 32 of 57
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
Then allyour assumptions are based on that map of Mr. Holman's,
is that right? ...with assumed elevation?
As I practiced, I made my drawings, based on Mr. Holman's
information.
If this is 2 feet - if the actual elevation on that site are 2 feet lower,
than what is on that assumed diagram, then everything you have
said is incorrect.
Then that is where I would say, without reservation, that Mr.
Holman's drawing is within 1- to 2-inches of accuracy.
That is not what I asked. What I asked is, if the actual elevation
are 2 foot lower, then we should completely disregard what you've
said.
If what elevations were 2 foot lower?
The actually elevations as opposed to assumed elevations are 2
foot less, then you can disregard what you've said, isn't that
correct?
If Mr. Holman's elevations were 2 foot less, then that entire area
would be totally underwater a good share of the time. The way....
WHITEHOUSE: Oh! Ok.
BOEHM:
The way you have asked it - you have asked it in reverse.
WHITEHOUSE: Ok, I am sorry! I'll do it in reverse. Two foot break, then you
would disregard what you said?
BOEHM:
WHITEHOUSE:
That is assuming that everything would be predicated down to a
level that was at the existing...ah...ground height. In other words,
that is your present level of saturation.
Now! The ah.... You understand that in distance of septic systems
from wells and from tide waters, that you can reduce that system
down to 75 feet without any State approval what -so -ever, as long
as you can in impermeal layer, isn't that right? Between the
well.... I'm sorry! The critical thing is that there be an impermeal
layer, isn't that right?
Mason County Board of Health
Pitman Appeal Hearing - June 5, 1997
Page 33 of 57
BOEHM: Your going to have to enunciate more.
WHITEHOUSE: Ok. But that is predicated under the impermeal layer. Ok, and in
can be determined that there was an irpenneal layer at .7 inches
below the surface and do you have any (in audible) information
that disagrees with that?
BOEHM: Only direct observation.
WHITEHOUSE: Well.... Is there not an impermeal layer there?
BOEHM: I thing there is an impermeal layer. There had to be for the water
to get trapped in those test holes at the time I visited the site.
WHITEHOUSE: So there is one! So that means that there 75 feet from the well,
which is down below that impermeal layer. That is completely ok
in the State approval to lay that down below 75 feet wasn't even
necessary. And so all those lines you have drawn, the 100 feet
radius from the well, are wrong and are suppose to be 75 feet, at
the minimum.
BOEHM: If,....if the request and remember your...the submission was
not on the basis for a reduced distance from a well bank, because
the initial submission is not even considered the Middleton well.
WHITEHOUSE: We aren't even dealing with the original submission...we are
talking about the variance. The point I am making to you, not only
the variance proper but the....
BOEHM: ...but the variance is requested off the shoreline and not off the
well.
WHITEHOUSE: That is not true. The same regulation, sir, which deals with the 75
foot requirement is in the same paragraph. And this is Washington
Administrative Code 24627209501, paragraph 3. It says the hard
(in audible) separation between and OSS (in audible) component,
and an individual water well, spring, or surface water, can be
reduced to a minimum of 75 feet by a local health officer and be
dis(in audible) to the conforming system upon sign approval by the
health officer if the applicant demonstrates. Ok, and what are the
conditions? bnpermeallayer.
BOEHM: It also emphasize what I just said.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 34 of 57
WHITEHOUSE: What?
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
That the variance was requested at 55 feet off the ordinary high
water. It was not reached in anyway to reflect this variance less
than even 100 feet, down to 75 feet for the well. The variance in
it's request did not address the well considerations.
Ok, but what we are saying here, it just adds a reduction down to
55 feet, and as far as the well is concerned, it is completely fine. I
mean this system, if we got this imperial layer between the
system and the well, in existence of 75 feet, this is a violation of
any statue, is there? Show me a statue that it violates.
That is a legal interpretation and not a geological sound
assumption. In geology, this area is very erratic and don't congeal
with the clay layers, the impenneal layers. Know the
inconsistency of layers.
The point I am making to you, sir, is that your math has been
predicated on the fact that the system has to be 100 feet from these
wells and I just pointed out to you that the law clearly says that it
can be 75 feet from the well, without approval from the State,
without any variance, without anything. I am asking if you have
anything (Note: End of tape 1) to say that the argument I am
presenting is wrong? And I don't think you do, sir.
I don.'t have a response to that.
Now assuming...lets just assume for a second that the water comes
up to this (in audible). Let's assume for a second...that happens a
couple of times a year.
It happens with. the frequency between 15.5....
Have you observed that happening frequently, sir. Have you
observed that?
I am a consultant, and my business is site development (in
audible). The engineering judgment is something that often...
Based upon the assumed elevation and (in audible) mass, but I am
asking you a question. Let's assume that the worse case scenario,
lets assume that happened a couple of times a year..I can ask you a
hypothetical - which I am doing right now, ok? A couple of times
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 35 of 57
BOEHM:
a year - when the tide comes in and it goes out, it is in that extreme
high position, one hour or two hours? Ok? Do you know how
many hours there are in a year, sir?
Also you have over estimated the question by saying one or two
times a year. That happens with a frequency that can be well
established from the tide book.
WHITEHOUSE: Sir, you remember at the conference we had back in December,
this gentleman is the one who made observation. Don't you
remember him saying at that time, that at its worst it happened a
few times? Ok?
BOEHM: You'll note that of this year alone or at night, no one sat there in a
chair at the site and slanderously observed 24 hours -a -day. That is
why we high charts; that is why we have Holman's organization to
establish some level, by which you can (garbled) receive. And we
have sir.
WHITEHOUSE: You'll have to ask nicely. Ok. But assuming my point is, sir, lets
say that happens ten tunes a year. There are 8,760 hours in a year
and were talking about... The worse case scenario, that you or Mr.
Middleton, have testified to today is it might be 10 to 12 hours at
the worst case, and probably less, that the water is touching that
system. And you don't have any history with that system, sir, to
say that even that minimal impact, if it is infact happening, is
conceded for that happening. It hasn't even had an adverse
impact on that system. The rest of the time, if anything, it's a (in
audible).
BOEHM: The criteria for the system that you setup was based on the
conditions at that site.
WHITEHOUSE: The other thing you should do, if you want to, is if anybody was
really concerned about water getting to that system - isn't it just a
simple matter of system, if we are going to have slight inundation,
a few times a year, 10 times a year, 12 times a year for an hour or
who each time, isn't really, just go around and burr around and that
would keep the water out just fine, wouldn't it?
BOEHM:
Theoretically it would. The only aspect on that would be the
hydraulic pressure of your extreme high tide. Let me just illustrate
this. The only way you could insure the impermeable
non -penetrating salt water in there, would be to have a layer down
here as well.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 36 of 57
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
WHITEHOUSE:
BOEHM:
Only if the water was sitting there for a long period of time...
And you have a high tide out here, you have hydraulic pressure this
way, you have hydraulic pressure this way. That is what happens
at that site. The water is actually pressuring at low tide and
maintaining that level of water on that peninsula.
If this were built high enough, so that hydraulic pressure could
never push higher than the level of this water, isn't that right?
I don't know what the floatation characteristics of this system are.
Often you can see septic tanks pushed out of the ground, due to
pressure from water.
I didn't know that was a problem here.
I think some of the people here are aware of the systems and can
testify of these...
Is it your testimony, that what your worried about is this thing
being up out...
No, I asked you the question! It is relevant to the hydraulics at
that, of the pressure from the tides. When high tides are here,
there is pressure here and it is the weight of this, its displacement
is...
WHITEHOUSE: ...this is an impervious surface right here, sir. The water can't
get...
BOEHM:
WHITEHOUSE:
BOEHM:
But there is pressure...
Well, are you saying that you are worried that this will pop out of
the ground? Is that what your saying? I thought we were talking
about hydraulics? Are you worried that that will pop out of the
ground?
When you detain pressure were looking at here...is asking...at this
site like this.
WHITEHOUSE: So what?
BOEHM:
So what!
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 37 of 57 •
WHITEHOUSE: Yeah! (in audible)...trial tech and harmony.)
BOEHM: It is a function of (in audible) both displacements. This is heavier
than the pressure, upward pressure, it will stay intact.
WHITEHOUSE: Then if you have plenty of weight on top so it will (in
audible)...and also though, if this is high enough, even if the water
does come up there, the water won't come up over here because
the water here, if it does come up into here, even if you have this
burim. If .it comes up into here, it won't build any higher than the
water over here, will it?
BOEHM: As long as you have got it completely sealed. Top and bottom.
WHITEHOUSE: Well no matter what, the water here can't exert pressure on
anything to cause water here to go any higher...
BOEHM: Water near that , but that is water that is here is exerting pressure
laterally.
WHITEHOUSE: I understand! We already discussed that. I am asking a different
question, now. My question is that as long as this is high enough
here and even if this water does come up to 2 feet, which is the
worst case scenario you can testify to, the water can't be forced up
over this, because this water here, can't force up any water here
any higher than this water right here. So...
BOEHM: Wait...wait here. What your saying... This picture is distorted. It
moves everything vertically 2 feet or more.
WHITEHOUSE: Just...you can put the edge of this thing up high enough, if that is
deemed necessary, and so water could never encroach over the top
of that. Isn't that true?
BOEHM: Not the way it has been presented, but it would be true under a
redesign.
TRUCKSSES: I would like to bring it to your attention, that we'd like to be done
by three o'clock.
WHITEHOUSE: I am sorry! I don't have any further questions.
MIDDLETON: • I don't have any further questions and I don't have other eye
witnesses.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 38 of 57
WHITEHOUSE:
I'm sorry, I don't think we will get finished by three. I apologize,
but I will do the best I can to get some stuff in. I am going to call
real quick, Dan Holman.
TESTIMONY OF DAN HOLMAN
WHITEHOUSE: Your Dan Holman and your a liscened surveyor, are you not?
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
Yes!
And you've been licensed how long?
Twenty-two years.
And were you asked by me to do some elevation in this area?
Yes.
And the elevation at the base of the bulkhead is at what level?
Various from line. Now this is related to ah... mean low lower
water and tidal bench mark. Ah... near Arcadia Point and the
elevation at the base of the bulkhead, various from... as you can
see along the eastside of the bulkhead, varies from 13.31 up to
highest, about 16.78.
And that is at the base of the bulkhead, the foot of the bulkhead?
No, that is at the base of the bulkhead.
Ok, ah...
Where gravel meets the bulkhead, and the gravel varies slightly.
And if the bulkhead were three feet high, as (audible - robly) three
feet high, as was testified to previously, the elevation of the
bulkhead would range from... what about l 3 1/2 feet to about l 8
feet, something like that? The top of the bulkhead_
The top of the bulkhead?
Yeah! If it were three feet high?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 39 of 57
BOEHM:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
Might I ask a question again?
Not true possibly if Dr. Trucksses...
I don't know the exact elevation of the top of the bulkhead...
No, but I asked you to make an assumption.
My observation were that if average two to three feet higher than
the points where the elevation were taken along the base. So that
would take it up into the 17 - 18 feet.
Ok. And I also asked you to draw line of vegetation to that, did I
not?
Yeah!
And that is where there is a line of demarcation between
vegetation and gravel?
Yes...
And on both sides...on the east side is that significantly out than
the bulkhead?
Yes.
And so, if you were to draw a line 75 feet from the line of
vegetation on each side, is apparent from that map there would be
plenty of room to put a system there?
Yes.
Ok. And in drawing the line of vegetation, did I give you a copy of
246-27201001 that has the definition of ordinary high water?
Yes, you gave me this, as well as another one, that talks about...
But I asked you to draw the map based upon this one, did I not?
This map...this map...this line of vegetation is drawn, based upon
WAC 17322030 Section 12261...
I think you better double check it.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 40 of 57
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
Oh.
Would you read...Would you read that for us?
Yes. The areas highlighted - ordinary high means the inark on
lake streams, and tidal waters found by grounding the best banks
and ascertaining where the presence and action of water are so
common and usual 'and so long continued in all ordinary years, as
to mark upon the soil a character distinct from that of the flooding
land, with respect to vegetation, as that condition exist on the
effectagator of the chapter..
Ok. Is that what those lines do?
(Silence)
And when I asked that I am talking about the line of vegetation
that you have here and then you have made a graft here.
(Silence) No those vegetation lines are mapped relative to a
different WAC. This WAC you read here is mapped in a different
location on the map.
I am going to (in audible) and we'll come back to it. Ah...I don't
have anything further.
My name is Dave Middleton, sir. Are you aware the site was
inspected by the Mason County Health ,Department
representative?
Only by what I heard.
Are you aware that they determined the line of demarcation of
ordinary high water mark was between the salt water grass on the
west side and the upland grass?
No.
That is not where your...line on this drawing, you did here,
indicated is it?
I'm sorry, I can't hear very well.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 41 of 57
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
MIDDLETON:
HOLMAN:
WHITEHOUSE:
MIDDLETON:
I'm sorry. I will speak up.
Certainly here, we speak on a different WAC...if I understood what
you just said, is not the line of demarcation between the salt water
grass and the upland vegetation, is it?.
The water words line of vegetation is...
Your saying that everything out here is mud, am I right or wrong?
Yes.
All right! And you weren't aware... Let me take a step back. First
of all you didn't create this drawing passed on the WAC we are
here about today - that is the one contained in the On Site Septic
Regulations - is that right?
Ah...it is based on WAC 17322030...
Fair enough!
Section 12361.
All right! I think that answers my question. But let me ask you
this, are you aware the Department of Health reviewed the permit
to this septic system and indicated, infact, that they felt the
ordinary high watermark was not line of vegetation, between the
sand and vegetation?
I...yeah_..um...
We are getting into something that someone else determined,
which, based upon photographs, which show a clear line of .
demarcation. Ah...you know, if you bring stuff up like that I don't
have an opportunity to cross examine. It is suggesting that there
should be some credibility given.
It is contained in the material that are in the Mason. County file.
WHITEHOUSE: Ok.
MIDDLETON:
Do you believe the presence and action of water...that it is so
common and usual, and so continued in ordinary years, might
Mason County Board of Health
Pittman Appeal Heating - June 5, 1997
Page 42 of 57
HOLMAN:
MIDDLETON:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
HOLMAN:
WHITEHOUSE:
mark upon the soil a distinction that you can see between the
saltwater and the upland vegetation?
Yes.
No further questions.
On this map that has been referred to by other witnesses where is
says assumed elevations - did you ever measure those elevation?
Where the previous map, was based on assumed elevation of 15.6
on top of the bulkhead, that is not the true elevation of the top of
the bulkhead. The true elevation on top of the bulkhead is higher
than that.
All right, it is probably by a couple of feet?
Yes.
Ok, so your testimony is that on this particular document, which
admitted, with respect to the initial application, where you
indicated 15.6 as the top of the bulkhead, that is incorrect?
Shown on the map...the entire map... you don't have a part of that
there. The entire map shows that was an assumed elevation.
All right. What else is incorrect on this?
Well...can I see it? In terms of what?
Well, you got one incorrect assumption and documentation there,
what else is wrong on there?
Nothing.
Now, I know on this drawing here, you've indicated here 1071,
1072, 10 . What are those numbers?
Oh, they are computer point numbers, they have nothing to do with
elevation.
Ok. No further questions.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 43 of 57
TESTIMONY OF ROBERT PAYSSE, SR.
WHITEHOUSE: Your Bob Paysse?
PAYSEE: Yes.
WHITEHOUSE: And are you a certified designer of septic systems and so certified
by Mason County?
PAYSEE: Yes.
WHITEHOUSE: Ok. Ah...and did you design the system here?
PAYSEE: No.
WHITEHOUSE: Who designed it?
PAYSEE: Arnold Tahja.
WHITEHOUSE: But you are working with the system now...
PAYSEE: Yes.
WHITEHOUSE: Mr. Tahja's retired?
PAYSEE: Yes.
WHITEHOUSE: Ok, and so your working with the system and your...going to be
involved in helping the installer?
PAYSEE: Not necessarily, no.
WHITEHOUSE: You won't be, ok. You'll...
PAYSEE: All I am actually here...involved in this is as a witness for you.
WHITEHOUSE: But your very familiar with the system?
PAYSEE: I have been watching the problems they've been having.
WHITEHOUSE: And this system, is this one approved all system with the State of
Washington?
PAYSEE: Yes.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 44 of 57
WHITEHOUSE: Ok. And is that the approval for this system?
PAYSEE: No, that isn't.
WHITEHOUSE: (Well I parker, yes. (in audible)
PAYSEE: Yes. The M3 was the earlier system than the...this is the M31
which is a modular unit of the same system.
WHITEHOUSE: Ok, isn't this L say M3.
PAYSEE: Yes, it says it on the same proprietary (in audible) as the M (in
audib] e).
WHITEHOUSE: But up above you'll see in the boxes there, it says the M3 is
approved?
PAYSEE: Yes, the M3 is approved.
WHITEHOUSE: All right.
PAYSEE: From 240 gallons a day to 1540.
WHITEHOUSE: Is that sufficient for a 3-bedroom house?
PAYSEE: Yes. No! 240 to 360 gallons a day for a 3-bedroom.
WHITEHOUSE: Ok. Now, ah...is the bits of test data for this system?
PAYSEE; Yes.
WHITEHOUSE: What is that test data for?
PAYSEE: This test data here was done on the M31.
WHITEHOUSE: Ok. How does that relate to the M3?
PAYSEE: Very...almost exactly the same.
WHITEHOUSE: All right. And that shows the flectionable oxygen levels, the CSS
levels and the (in audible) culture levels during that period of
time?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 45 of 57
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
Yes.
Does that basically show when you first install the system for
about the first month, you get some high readings and then it
comes down, and then they are relatively low readings?
Yes.
And if I just could for a minute, the...make reference to the surface
water regulations for the State of Washington, which is 173...
Washington Administrative Code 173201A030 - which says that
for shellfish the levels of (in audible) chemical oxygen have to
below 7 mg per liter and fecal chloroform have to be 14, and these
test results are all below those levels. Ah...after the first month of
operation and for domestic water supply levels are the fraction 9.5
mg per liter and 50 fecal chloroforms, and this test data is well for
that...
This articulates a good system.
This is not a hundred feet away, as I understand these tests,
this is right at the system.
Yes.
How long have you been involved with these systems?
About 4 years.
How long have they been installed?
About 12 years.
WHITEHOUSE: Have you ever seen one fail?
PAYSEE:
Yes. I will qualify that, there have been 2 failures. The first
experimental system they built, it...they had a ground wire leading
into the septic tank and their supply...from the pump tank to the
system was on a demand float and it overloaded the system
hydraulically. They went to the (diving dosing) system and there
has never been a failure since. The other one was put in Kitsap
County. When it was completed the contractor left the site, the
contractor of the site came in and covered up the sil foam and
the...
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 46 of 57
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
PAYSEE:
WHITEHOUSE:
The what?
(Sil foam). The sand has to be open so it can breathe. (In
audible).
How much vertical separation do you need between a permeable
layer and (in audible).
I need to be on the less that 75 feet - I need 24 inches.
And if you have a l 00 feet?
Well, if I have a 100 feet...if I had a 100 feet I could probably go
down probably 12 inches.
And when you say 75 feet your talking about from the well?
Yes.
And...ah...what happens if salt water comes in next to the system?
Next to outside, I would say nothing, absolutely nothing.
Why is that?
You know...as long as it doesn't go interfere into the system,
nothing would happen. It probably would work very much like
rain water because the system is open to rain water at all times and
there is always water going into the top of it and the capillary
action takes it right back out.
Does this drawing show basically how the system works?
Yes.
For illustration purposes...this isn't a great drawing. Does that
drawing basically show how the system works?
Yes.
And it has its cone and then it pumps the affluent down into the
bottom of the pump, so the affluent comes up through the filter
material and then goes through capillary action...
Mason County Board of Health
Pittman Appeal Healing - June 5, 1997
Page 47 of 57
PAYSEE:
The water is pumped to the center pipe to gravity to in very small
doses, a couple of gallons at a time. And of course, the difference
in water levels between the water in the basin and the water in the
pipe (in audible). And it very slowly does this and so the water
here in the bottom slows the pump. When it gets about 8 inches at
the top the capillary action takes over (in audible).
WHITEHOUSE: I don't have anymore questions.
MIDDLETON: In taking 24 inches vertical separation between the systems...I
guess there is nothing really wrong. I am sorry. If I say (in
audible). You say with 75 foot separation, you need 24 inches of
vertical.
PAYSEE: Less than 75 feet.
MIDDLETON: Ok. In this particular case the variance was ran down to 65 feet
with a 65 foot separation. What would you need?
PAYSEE: I would need a 24 feet vertical separation.
MIDDLETON: And how do you define vertical separation?
PAYSEE: The useable soil underneath...from...in this case from the top of the
ground and whatever is considered the restrictive layer, whether it
is hard pan...
MIDDLETON: Are you aware that the vertical separation as defined by the Mason
County Code states that it is the distance between the bottom of a
disposable component and the height of seasonable water table,
restrictive layer, or swells at 1/8th?
PAYSEE: Yes.
MIDDLETON: And what is it...what is your impression based, on what you have
heard here today, what the high fecal water table would be?
PAYSEE:
Well, I have heard so many descriptions that I wouldn't want to
guess. The only time I was on the site, there was water in the hole.
That is all I can say about it. The other thing is that if I were
designing the system and I was doing it to what the Mason County
septic permits, I would have 27 inches (in audible).
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 48 of 57
MIDDLETON: You have heard testimony that it has been observed that water
covered this area and it still is not your opinion that at the highest
even for water table, is that right?
PAYSEE:
To what I have seen, I don't know. I have listened to the testimony
on both sides and so I have no way of determining who is right
here. I can only testify as what I know about this system. That is
all I can testify to.
MIDDLETON: Have you ever seen this drawing before? Referring to the drawing
of minutes with the initials application?
PAYSEE: Yes, I have.
MIDDLETON: You have. And what...can you tell me what that location is down
there?
PAYSEE: It is 27 inches to the restrictive layer.
MIDDLETON: 27 inches to restrictive layer. And you show that restrictive layer
half -way up the system, isn't it?
PAYSEE: This system...this basin is lined with 30 mil liner, so there is no
water that goes out this system until it gets up to the rim. That is
where your water is coming out of here at least 30 inches above
the top of the ground, the existing ground.
TOMPKINS: Bob, I will illustrate that for people purposes. What Bob saying is
that...this is the pervious layer, the line that goes down, doesn't
come up and go over the top. Vertical separation is from...this is
the (in audible) ground layer. There is 27 inches between that and
the triculive layer. That is the usual flow. That is where the '(in
audible discharge is withing this zone, right on top of the (in
audible) ground.
MIDDLETON: Thank you! Can you point to me in the Washington State
Administrative Code where it says that vertical separation is the
distance from the top of the ground to the permeable layer.
TOMPKINS: This is a disposable component of this system. The disposable
component of this system is right here, between the standard
interface and the original frame.
Mason County Board of Health
Pittman Appeal Hearing - lune 5, 1997
Page 49 of 57
MIDDLETON:
TOMKINS:
MIDDLETON:
That is the disposable component of this system? So the bottom of
the disposable component your contending isl2 inches off of it?
No, the bottom of the disposable component is at the original
drain site.
Ok, I don't have any other questions.
TESTIMONY OF JOHN ROBERTSON OF RH&L REALTY
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
WHITEHOUSE:
My name is John Robertson and I am with RH&L Realty. I am an
Associate Broker.
Top picture - does that show the eastside of the property; does it
show the line between vegetation and the gravel?
Yes, it does.
Second picture - does that show the westside and a little cove
formed there?
Westside...it is really looking more north...I can see, ah, the boat
house...
The boat house and everything is here. But, the west line is that
line going along here?
Yes it is, along the line of trees there.
Does that also show the eastside?
Yes.
Do you remember going out with me on the property on
December...
I remember going out on the property with Steve Whitehouse...
Yes, December 3, Tuesday. You remember I took some pictures
out there that day?
Mason County Board of Health
Pittman Appeal Heating - June 5, 1997
Page 50 of 57
ROBERTSON:
Yes.
WHITEHOUSE: And you remember we went out there and hit it right at high tide?
ROBERTSON:
WHITEHOUSE:
ROBERTSON:
Yes.
And you remember being out there and what it looked like on that
day?
Thats... sure looked familiar!
WHITEHOUSE: Ok, is that what it looked like on that day?
ROBERTSON:
WHITEHOUSE:
Yes.
Ok. Just to go back on the record, this is at the height...this was
slightly higher, the elevation, on that date that we established on
the tide chart shows that level is slightly higher than the mean
higher high tide. That was a 14.35 tide and the mean higher high
tide is 14.15. The point of that is to show its mean higher high tide
can possibly be below that bulkhead. But...anyway. That is all I
have Mr. Robertson.
TESTIMONY OF MARK TOMPKINS, ENVIRONMENTAL HEALTH DIR.
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
THOMPKINS:
We already established that there was a previous drainage field in
here and as far as we know there were no problems with that
drainfield, right?
Nothing direct to communicate that.
It says at one point in these papers that the vertical separation is 27
inches and then another point it makes a reference of 57 inches.
Do you know what that is?
No, I don't know what you are referring to.
It says right here on this design form, right here it says design verse
operation 57 inches. Do you know what that means?
I do not.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 51 of 57
PAYSEE:
I can answer that. That is the required vertical separation for the
blend. For that model, blending is 57 inches, in other words,
between the top of the rim and the restrictive layers, that is what
that 57 inches is.
WHITEHOUSE: Ok, so that...
PAYSEE:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
TOMPKINS:
WHITEHOUSE:
On that particular model that is what it was.
It is my understanding with the way this works, that you guys can
approve anything, that 75 feet to tidal water, to a well you can go
down to 75 feet...
Correct.
And in this case we have a restrictive layer from well, is my
understanding. That is what all the reports indicate, that is what
the K(in audible) report indicates and there is no evidence to the
contrary. This system can be within 75 feet of an active
well, even without a variance?
They have to apply for a local wavier to get that 75 feet.
(In audible) permeable layer, than that is ok? And that is the
primary criteria?
What we do is, on an individual who owns that affected well, we
look at the soil profile and if they have well on it we look too, the
restrictive layers. Then that is approved at our level. If they set
back into a .neighboring well, we contact the neighbor and let them
know that there is going to be a waiver of reduction.
Does this system meet that criteria?
From the designs I have looked at, yes it does.
In this system only needs to meet a standard 2 but infact meets a
standard I, is that correct?
Yes, it is.
And the difference between the standard 2 is 800 fecal chloroform
per liter?
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 52 of 57
TOMPKINS:
WHITEHOUSE:
MIDDLETON:
TOMPKINS:
MIDDLETON:
TOMPKINS:
MIDDLETON:
TOMPKINS:
MIDDLETON:
TOMPKINS:
MIDDLETON:
TOMPKINS:
MIDDLETON:
WHITEHOUSE:
TOMPKINS:
It is...standard 2 is the difference element is the fecal chloroform
count is can go up to 800 fecal chlorforrn,100 per liter, whereas
treatment center one goes into 200.
Got nothing further.
So a local waiver under the State (in audible), a local waiver has
to be applied for?
Yes. For set back less than 100 feet to wells, local waivers are
required.
Was a local waiver applied for?
No, it was not.
You were going to say, you usually contact a neighbor when one is
applied for if it is a setback to that neighbors well, is that right?
Yeah, we require neighbor notification.
And did you do that?
A waiver was unapplied for. We were under the impression that
both were 100 feet to the system.
And that was incorrect, right?
Mr. Middleton indicates it is incorrect.
No further questions.
Can you indicate that incorrect?
Mr. Middleton indicates to me that was incorrect measurement.
WHITEHOUSE: By a few feet?
TOMPKINS:
He indicated to be it was 94 feet instead of 100.
WHITEHOUSE: But as far as you know the suffator has complied to the law...the
system, in other words to be able to handle the 75 feet, it does.
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 53 of 57
TOMPKINS: Applied for the waiver, it does.
WHITEHOUSE: But they would be intittled to the waiver. There is much question
about that.
TOMPKINS: It generally is not known.
WHITEHOUSE: And if the system could be built a little bit smaller, it would be
within a 100 feet, isn't that right?
TOMPKINS: They could possibly build it a few feet closer to Mr. Pittmans own
well and be out that 100 feet of Mr. Middleton's.
WHITEHOUSE: They could do that without any (in audible).
TOMPKINS: We've got the measurement of Mr. Middleton's well, and it is
located in his garage, so we were not able to get the exact well
heads when we were out there. And with that I am going to have
Pam Denton address some of the...
WHITEHOUSE: If I could...I have one other question of Mr. Paysee. 43 feet by 28
feet? Could it be made smaller than that?
PAYSEE: The guideline wise it could be made considerably smaller than
that.
WHITEHOUSE: For a 3-bedroom house, how small could you make it?
PAYSEE:
Ah...a 3-bedroom system could be...and this configuration could be
changed to what we have there. We could go down to
approximately 48 by 16 feet.
WHITEHOUSE: So even with that diagram that was submitted...ah, it could sit with
even the space in there?
PAYSEE:
i. might point out that, at the time this system was presented the
time the Glendon people got this system approved by the State of
Washington - they had been working on it for over 8 years. They
were out to get it, and so they oversized it terrifically to be sure
that everything was (in audible) when the State approved it. They
knew at the time that they could sell them one (in audible) size
they had proved and still get the same results and that the State of
Washington has since agreed to that and reduced it to one-third the
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 54 of 57
size. So this system today, as it was being presented, could be
presented at one-third of the volume. The rim length stays the
same because it takes so much capillary action to take the water,
but the volume could be reduced by two-thirds.
WHITEHOUSE: Go back to my question, we have to rush here. Can you fit it
within the area of that diagram they submitted?
PAYSEE: I would have to sit down and work on that. Ah...possibly. I know
we could put a (in audible) type in there.
WHITEHOUSE: Ok. I just have another question for Mr. Holman. I just passed off
the photographs. Did you get a chance to look at those.
HOLMAN: No, not really.
WTEHOUSE: The line of vegetation that we've got on the eastside of your .map is
that the line of vegetation that we are looking at in these three
photographs?
HOLMAN: Yes
WHITEHOUSE: Now on the westside the line of vegetation there, is that the line
we're showing up there. Not the one in the forefront, but the one
in the background, is this the one that shows over here?
HOLMAN:
There are two lines shown for the edge of the grass, would be the
line between the mud and the grass. This line here. And then you
have this .low grass, and then you have the line of vegetation where
there are trees and brush and that is the dark line.
WHITEHOUSE: I don't have any further questions.
TOMPKINS: I would like to have Pam (Denton) point out that our department
would go out during. high tide and one event was...you had to work
at least to 6:30 to get to high tide. Remember how.high that tide
was?
DENTON:
No, I thought I wrote it down, but I didn't. My recollection was
mid-1 3's. That was when I originally got the complaint and I met
Mrs. Middleton out there and ... And then I went out again with a
staff member, it was a high tide. And again, the water, which
would be the eastern portion was about 15 feet further out from the
bulkhead. Both times I have been out there at high tide, again the
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 55 of 57
MIDDLETON:
DR. TRUCKSSES:
WHITEHOUSE:
DENTON:
TOMPKINS:
(UNKNOWN):
WHITEHOUSE:.
water was not at the base of the bulkhead but 16 feet beyond. In a
letter that David Middleton submitted to us, you could see about 5
or 8 feet of. ..regarding his six issues for an appeal. He said, "the
property submerged under high tide water several times a year.
Photographs of the property submerged at an extreme high tide
will be provided shortly." Do we have copies of those
photographs?
We haven't found those photographs.
What was the tide on these pictures?
14.35 at .least, according to that. I calculated 14.7 but 14.35 is only
a difference of (in audible). Slightly higher than a NOAA mean
higher high tide by about 2 inches.
But again, Dr. Trucksses, we in putting...the design approval is
based on getting the bulkheads as the ordinary high water mark.
Their 55 feet from that bulkhead.
That is right.
I think that my point was, while variance was granted, even given
the more conservative criteria, my point is that it is possible that
even a variance wasn't necessary. Depending on where you
determined the ordinary high water.,.. I think there detennination
is very conservative and our point is, infact, the reasonable
argument that could have been much more liberal. Thank you for
the extra time.
CLOSING BY ATTORNEYS
MIDDLETON:
I encourage you to go through my brief. It contains most of the
appropriate statutes, and administrative codes. To me...there is
also an error when I amtalking about 12 feet available for
placement on east/west access..I am going to give you my copy of
the color drawing to photo copy of that in your material. That
might be more helpful.
I would note that vertical separation is required here, even in the
experimental system handout provided by Bob Paysee. Minimal
vertical is 12 inches, he has indicated he needs .4 inches. The code
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 56 of 57
is very clear that vertical separation is the depth between the
bottom of the disposal component, even .if that is as I have been
corrected, is at the ground level. The highest seasonal water table,
according to the testimony you have heard today, is above the
ground. We have a negative vertical separation. Now we have
these WAC here for a reason. These WAC's are here to protect us,
to protect our water supply, to protect our shellfish beds, to protect
us from pollution. Yes, they are more stringent than they use to
be; yeah, their use to be an old septic system on this property.
Who knows how that polluted the environment. Twenty years ago
you could have dumped your tin cans into Lake Washington, but
you can't now. Today we have WAC for benefit (in audible), that
is what we should comply with. That is what we have to comply
with and this system, has the proof, it does not comply with these
WAC's. I would note that the ordinary high water in this case is
the bulkhead. You have heard the testimony of Mr.. Boehm. The
testimony is was also low (in audible), that the ordinary and usual.
effect of water can result in a vegetation (in audible)and in an
upland vegetation. That is exactly what this code is going to when
it says there is a distinguishing characteristic, as such, the set backs
that are separation zones that are indicated in that drawing are
correct. The system as of proof does not comply. Thank you!
WHITEHOUSE: The vertical separation, when it talks about seasonal water table, is
not talking about a temporary influx and also just because the tide
is in for a very short time, is in fact the changes in the water table.
There hasn't been any testimony to that. If it rains out at Loop
Field and you get some puddling around home plate, does that
mean the water table level is that of home plate? I don't think so.
The water table, infact, is below the impermeable layer. There has
been no testimony to that fact. This is an attempt to make an
assumption. In fact, Mr. Boehm in his testimony acknowledged
that if the elevation were a couple of feet higher than what would
assume on Mr. Holman's original map, all of his testimony would
have no bearing on this issue, it would not be relevant. Testimony
is that elevation are about 21/2 feet higher. They haven't had their
burden of proof. The burden of proof has to show, somehow, that
some substance of violation here. That somehow this doesn't
conform. This not only conforms, but its greater conformance. If
we go with the restrictive setbacks that were placed by the County.
The County is determined it fits and Mr. Paysee has simply
indicated that the mound can be refigured a little bit, in his
opinion, even if what Mr. Boehm says is correct. What we have
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 57 of 57
tried to point out - we aren't trying to convince you that this is
fairly marginal ok - what we are trying to convince you is this is
more than ok, because it not only, barely fits in there but infact,
based upon a testimony, based upon what I know, it could very
easily be within 75 feet. And based upon the performance of the
system, and based upon Arden & (in audible), it could be within 50
feet because variances could be granted then at 50 feet it could be
subject to the five foot setback line on the property line. It could
be adjacent to the Middleton property line if we wanted to put it
there, but infact, we put it significantly away from his well. We
put it somewhat equal distance between the two wells to give
everybody the best advantage. What they also have to show here is
that somehow this is going to cause them some adverse impact.
We have a system that is existent on this site that was much worse
than this system, a gravity drainfield system and there hasn't been
any problem with the Middleton well. We have got a much better
system and if we didn't like it we'd tell you there isn't going to be
any problem with the well. There has been zero testimony that this
will affect the shellfish adversely, that this will affect the well
adversely. Infact, I think there is some argument can be made that
the waive advances made by the State apply not only to the
shoreline but applies to the well.
I don't see anything in there that says it specifically applies to the
shoreline. It says simply that we grant a wavier of this portion of
the regulation on a 100 foot setback in the waiver the same section
relates to the shoreline and to the well. In addition, this system
only needs to meet a standard 2, it meets a standard 1. The surface
water standard, it has the compatible system is well below the
surface water standards of this state. And according to the surface
water standards you can grow shellfish right next to this thing and
yet we got shellfish mentioned. Thank you for the extra time.
MIDDLETON: If I might address one regulation - 50 foot setback, that the
description lack very clear to (in audible) Thanks for your time.
DR. TRUCKSSES: I will try and get the decision out in 30 days.
Pittman. Appeal Hearing adjourned at 3:41 p.m..
Mason County Board of Health
Pittman Appeal Hearing - June 5, 1997
Page 58 of 57