*1 792 COMMISSION
ARKANSAS POLLUTION CONTROL Doyle COYNE, SHIRLEY, v. Charles W. Jr., Raymond DONATHAN 322 2d S.W. 5-5890 12, delivered Opinion June M. for McHaney, appellant. James House, Jewell, Robert D. Ridgeway and Holmes & Dixon, E. for by: Philip appellees. Chief The Arkansas Pollu- Harris, Carleton Justice.
tion an Control Commission issued order on April it refused wherein the use approve tanks as a private eight proposed constructed Charles appellees, Donathan, W. Doyle Shirley, Coyne, Jr., Raymond on certain lots owned areas unsewered On to the Springs. appeal Circuit Court Garland County, order commission was set aside court, court had the commission holding arbitrary *2 acted in an approving and unreasonable manner in dis- applications. the judg- From the circuit court ment, brings the appeal. commission reversal, this For simply it is was asserted that the order of the commission
supported by substantial evidence and was not ar- bitrary and unreasonable. background litigation,
As might to this be stated agency the by commission is a state Ar- created the kansas Water Act, and Air Pollution Control Ark. Stat. seq (Supp. Ann. 1971), § et 82-1901 and is vested this regulatory quasi-judicial Act with broad authority and formulating discretion in applying appropriate re- prevent pollution. medial authority measures to questioned the commission litigation; to act is not in this rather, only it is arbitrary asserted that it acted in an According unreasonable evidence, manner. the 60% of city Springs area within the limits of Hot any public is without sewer service and it was this situa- tion that culminated in an order on March against city, commission pro- alia, which inter vided that Springs: of Hot “Shall building permit not any issue a for structures any City unsewered area within the limits unless private sewage system for said structure has been approved first writing by the Arkansas Board State of Health. It is further ordered and directed that City approve, Springs allow, of Hot shall not or platting permit constructing any or subdivi- City sions, industrial, residential or within the limits, or within five miles thereof unless the sewer proposed collection and treatment for such approved writing by subdivision has been first permit Commission and a issued The Com- therefor. petition modify mission will consider a or rescind foregoing City restrictions at such time as the sys- can show that its sewer collection repaired design replaced tem has been so that the capacity existing sewage plants of its treatment of Health was un personnel, of insufficient the Board 1Because handled the com fully comply duty, with this and same is able to mission. not exceeded and being at such time City as the has and filed with officially adopted the Commission an acceptable comprehensive plan its in manner collecting treating adequate prevent pollution waters of any State, including Lake Hamilton specifically Catherine, Lake and a has been permit issued by therefor, Commission and the City effectively ap- propriated funds for such initial of construc- phase tion as shall be approved by Commission.” This order was not from fi- appealed and became nal.
In sewered, that area of the city not individual systems (septic are tanks) use2 principally March, 1965, 2In Conway, Hollis B. a sanitation for the Administration, Housing report Federal made a to the office of setting investigation FHA director in Little Rock out results of an sewage disposal systems Springs. made relative to individual alia, report, The inter stated: October, 1965, September “In were January, 1964 and visits Springs survey made to the Hot area to as- unsewered area sewage disposal systems certain if satis- operating individual were *** factorily. It was learned that the Stokes Creek watershed part City pro- city system. southwest has no sewer In area, |200,000 posed to sell worth of bonds to install sewers in the necessary but residents did not done since. shale underlaid Nothing form district. *** Springs primarily The soil in the Hot area is broken layer may underlayment with a of shale or rock. This planes depending be in various of the time upon the heave or fold at the Survey mountainous formation. of areas in and around many sewage disposal system revealed fail- individual ures. septic follows a recitation of numerous tank instances of [There *** areas, of outcrop or low evidence layers Where shale failures]. septic system tank present. appears effluent is It broken shale that the stratum, system allows the percolate impervious effluent to the then run outcropping. my opinion the stratum to its It septic systems tank majority will not function in a of area in and Springs. Septic systems around Hot tank not be should used where a concentration of are It built. is recommended Commissioner’s risk not be extended the Hot not, area. New by septic systems construction to be served tank should my opinion, though be acceptable. Properties considered even by Municipal Sewage System investigated served should be are located near an Drain- septic systems. area which is served tank age might from the tank area be into the area served ***” sewers. applying persons for and the permits the com- building forwarded on to have been These tanks. use with applications mission Engineer Hannah, H. Chief G. were reviewed appli- approved or denied such commission, either who cations. compliance is regulation principal with which The Bul- required tank is to install before pertinent portions follows: of which read as letin No. design procedure of sub-surface “The first systems suitabil- sewage-disposal determine is to absorption ity ef- for the of the soil required. leaching must The soil area and the fluent acceptable percolation rate, inter- without have an impervious be- strata from water or ference low the level of the absorption system. [***] (2) ground-water maximum elevation Rock be at below table should least feet the surface. impervious at formations or other a strata should depth greater than 4 feet below the bottom trench. *4 satisfied,
Unless these conditions are site is un- the system, disposal for a suitable except sub-surface systems, for isolated which be considered shall Housing This recommendation Ad- was followed the Federal approve and it has to the ministration since refused made on loans Springs. construction of new residences in unsewered of Hot sections Cockman, L. D. of Pollution Assistant Director the Arkansas Commission, 27, 1970, (order February hearing Control testified at following March) entered the relative to the counts coliform bacteria Hamilton, Creek, Catherine, Creek, Lake Gulpha Lake say and detailing report, Stokes Creek. Without it to suffice highly it reflects a undesirable condition. Mr. Cockman testified general soil conditions in are not suitable for subterranean system, clay such tank mainly as a because the generally soil is underlayed by shale or types other of rock which are most unsatis- facotry type disposal. for this of case, hearing of 3As the date in this of commission had requests had 56 of tanks of which 19 forwarded for use by the approved been commission. 796
individually and have the of the State De- partment of Health. explorations Percolation tests. Sub-surface are
2.2 necessary to determine sub-surface formations and suitability determine the of the soil for a system. auger, extension, A an soil with is recom- making investigations. mended for In some cases an cuts, embankments, examination road stream of building give excavations will useful information. logs Wells and well-driller’s can be used to obtain information on and water con- sub-surface vary widely ditions. In some areas short distances and sub-soil strata borings must be made at the site system. of the **'* Type Dig with or bore a hole of test holes. test 23.2 inches, and dimensions of from to horizontal vertical sides to posed absorption pro- depth bottom more). (24
trench inches or may auger.” holes be bored with a 4-inch requirements There is no contention that of this comply with, bulletin are are pellees difficult or even that contrary, by ap- argued unreasonable. To it is they complied with Bulletin No. and that applications their the to install on were refused requirements basis set forth in standards not bulletin; that such action was and ar- unreasonable Ray bitrary. Engineering Schneller, Director of Plan- ning City Springs, of Hot and Charles Summer- consulting part- ford, a his Wayne appellees, ner, Irwin, all testified behalf of percolation all stated that the results tests on the requirements met set in Bulletin out (and pretty agreed by appellant’s No. 9 this is well witnesses), argument, appellees repeatedly and in their complied assert that Bulletin No. 9 with. We disagree. reading requirements bulletin, A in that *5 improtant requirements out, heretofore set establishes percolation (2) other than the tests. We refer to which ground-water refers to the maximum elevation Admittedly, appellees’ engineers go table. did not below making despite tests, feet evidence 2 their fact that in all shale4 was found three of of here involved. In other sub-divisions showing any
words, there is no applications reflecting of the 8 that there are no rock depth strata for a 6of feet. per-
Irwin testified for and stated that the dug posthole diggers; colation test with that holes were in some rock 6 to instances solid was encountered from pro- encountered, down; inches rock if solid was ceeded no further the tests. He further that with shale stated encountering excavating percolation dug holes, test it was that if the felt shale could posthole digger, necessary dig deeper. awith it was not Summerford admitted that are not ideal be- wrong any things go cause there are number of that can problems: with the tanks that create “I don’t think that tanks is the—is the best is, sir, method that fact, there no a I—as matter I my opinion, municipal sys think that in a sewer operated system tem with a collection preferred by far, any is the method number things wrong go of problems they can with tanks that create expensive are to the owners main — taining only stop ups from roots but and other —not problems. They’re prone more to—to maintenance problems municipal is, think than —I a— personally I think don’t too much of a tank.” Mr. Hannah that testified shale evident in all the applications. areas for were which there: As to the lots Diction 4Shale International Third New is defined Webster’s mud, clay, ary as “A is formed the consolidation fissile rock that silt, parallel to the structure finely has a or laminated stratified bedding, and is composed of minerals that been essentially have un desposition.” altered since Summerford “actually testified shale is material that is pressure formed heat and in the earth’s crust more indicated, or less from an sediments in area. here Now shale as so to me simply quality grandular material means a low rock or present in these conditions. mean in these locations.” He reiterated “Yes, it is a rock”. rebuttal, Coyne Doyle Shirley each testified 5On Charles line on one of lots the curb each man’s most of shale had hauled in back-fill. as *6 North sub-divi- located in Cedarwood Coyne, belonging sion, he stated: evident shale North —there was Cedarwood
“Of On the second the road side. all the cuts of a seepage there was evidence third inspections, from a there; ditch down drainage coming through did not spring, looked like a wet-weather in fact There was iron par- a water line leak. appear ticles, There was development it was iron water. heavy area. there, of the development like—50% something es- conditions weren’t good, Generally drainage Lot on sentially the same evident conditions were 4 of Block 1.” number
Further, the cuts from curb “It [shale] It was in the utility cuts that had been made. street. hav- It was broken and fractured but showed evidence asked the significance been laminated.” When about ing of the laminated shale as far as disapproval concerned, replied: of a tank Hannah “Well, get can this effluent particular type, your weather, will into these laminations and the material or had on ground, as it had out there just through will effluent you get running ground, the ground rather than absorbed into being layer Well, it’s a tank. is the function of a septic as proper a low of treatment —it acts as sedimenta- degree very action, chamber with some anerobic biological tion low this, very effluent from is—is say which treatment, field then into a leaching degree goes if where it is absorbed into the ground proper- never surface and consequently constructed should ly when acceptable the low of treatment degree done.” of other dwel- The said that proximity were and the area surrounding character lings the applica- also that he considered denying factors tions; difference approving there was a great ais in an isolated area where there use of a septic the use of large plot approving up disapproval of the in an urban built area. on that was made the other two Shirley, mentioned, relative to basis. He the same *7 very bn a houses down stream several other there were steep slope. Depart- employed Weir, the Arkansas State Cecil agreed engineer, was
ment of Health as an completely justified that Hannah denying applica- in his decision Making requirement (2) tions. No. 9 reference to from Bulletin
referring ground- maximum elevation of table, water Weir stated: you you regu- have, shale, if
“When have now our says lations four feet below the trench or six feet deep layer. impermeable as far as there shall be no rock or clay something words, In other like which into, keep traveling will hold and it from on down ground. you shale, this, And when have such as layer, you may top it forms a exhibit have soil on that will good percolation but once it soaks down and layer hits this of the shale or well at this ditch cut I’m of shale it can travel the surface
along through out, the shale and come
talking about, can come gets out at the ground, surface of the if the shale enough that close to the surface of the come anything out from the stream bed or like that. Now sep- using up community and as far as as far as a built up community, we look at as- in built tic tanks play in pect these, like to of kids or children thing water and that sort of and in cases like get playing yard out and in the back or where ever play get kids like to An- will into this material. get brought imals will into the into this material and will be peoples and if its tank effluent playing —its a tank effluent that these kids are really important think, in. This is the most factor up involved with tanks in a built area.” We have not detailed the evidence of only the reason that we are concerned with there whether support was substantial evidence to the order of the com- By “substantial”, legal, per- valid, mission. we mean If, suasive course, offered, evidence. such evidence automatically ruling it follows that the of the commission arbitrary. would not be unreasonable or Appellees argue only city that Hot is the ap- the state wherein the commission has ordered that plications approval, be first submitted to it for strongly intimates that the commission no intention approving applications steps, in that until definite necessary, which the commission deems re- are taken with gard sewage disposal. argu- As to the first mentioned appear ment, any it does not that there are other areas requiring wherein the problem exists to the extent of approval by written the commission before installed; last, are some as to the there has been permits, pointed argued as earlier out. It is likewise were turned down for reasons *8 non-compliance other than with Bulletin No. 9. Hannah mentioning proximity stated, so other houses vicinity, surrounding and character of the terrain. Of course, it is desirable that criteria and standards for the approval writing, applications should be set out prospective applicants apprised thus in ad- expected. vance of what would be The additional matters certainly pertinent considered Hannah seem to be applications approved, whether should be and were even seemingly require expert opinion. matters that would not may, Be that as it the fact remains that Bulletin No. 9 complied already was not with as mentioned and cer- tainly regulation (2) previously referred to inis black actually white, specific requirement and is the first Bulletin No. 9. agree any prejudice
We cannot that the record reflects part toward the commission, on the of the it is expected considered and that all will be upon approved acted on an individual basis and or dis- approved according all, to the evidence offered. After public presumed lawfully, sincerely officers are to act good and in faith in the execution of their duties. Rocke- v. Hogue, Ark. 429 S.W. and cases 2d feller cited therein. people proud of Arkansas are fa- health dlities offered Hot func- desire that its reputation tion and as health resort maintained. Despite City passed the fact that an ordinance calling for a substantial increase Council people charges a referral after service was defeated people November, 1969, there is evidence that community acutely that have now become aware hearing problem. At the in Feb- before commission ruary, 1970, a resolution of the “Hot Citizen’s (composed citizens) Sewer Committee” of 16 into was read pointed the record. It is out this committee had recommended an increased sewer tax with a new minimum (rather $.50), rate than and it mentions that the $1.00 adopted. ordinance was The resolution closed as follows: pledged “We, Committee, of the Citizen’s our- have only give problems very selves to these not best pollution efforts, to minimize or eliminate the of our important namely resource, most Lake as Lake Hamilton and speed
Catherine, but also to work with as much possible. You, Gentlemen aware, Commission are program
such a problems to solve these will take considerable given time and while such time has been City freely past, you we wish to assure quite cooperation a different climate of exists *9 Springs.” in now
The not record does reflect results obtained. recognize building industry
While we that home the degree necessary can suffer to some because a curtail- areas, ment the construction of houses unsewered building we think it clear that when houses such pollution area, contributes to welfare of community, citizens of that visitors thousands of Springs, demands that the control contaminated precedence. areas take County Court judgment Circuit
The Garland directions with remanded and the cause is reversed reinstate the commission. order It so ordered. is J.,
Byrd, dissents. dissenting. appellant had Conley If the Justice, Byrd, simply permits on denying applications for complied with property had not owners the basis that the proof agree. shows however No. I would Bulletin denying applications appellant’s is chief This upon print. are not sort of criteria that some ar- was that the Commission to show alone is sufficient bitrary. proof print, the criteria not In addition to September, were made shows that the ruling hearings December and were not held until April. following This time element not made until arbitrary and it becomes so alone is capricious. cumbersome people find nine months New can wait living today’s job cost of whether have a under out scale. undisputed proof record
Furthermore subdivision are the same other operating, pollution free, tanks. respectfully foregoing reasons, dissent. For the