SC Administrative Law Court Decisions

This matter comes before me upon petition for hearing following the denial of a septic tank permit application for Lots 103 and 104, Crystal Lake Subdivision, 961 Resting Place Point, Chapin, Lexington County, South Carolina, by the South Carolina Department of Health and Environmental Control (hereinafter referred to as "DHEC"). A hearing was held on April 30, 1997. Upon review of the relevant and probative evidence and applicable law, Petitioner's septic tank permit application is denied.

By a preponderance of the evidence, I find:

1. Petitioner is the owner of Lots 103 and 104, Crystal Lake Subdivision, 961 Resting Place Point, Chapin, Lexington County, South Carolina (hereinafter referred to as "the property"), as shown on Lexington County Tax Map #1019-01-021.
2. The property is wooded, undeveloped land which slopes down to the shore of Lake Murray.
3. Petitioner applied to DHEC for a septic tank permit for the property on November 19, 1996, Application Number 32-97-0811.

1. Petitioner seeks the septic tank permit to allow construction of a residential dwelling by a potential buyer.
2. DHEC Water and Wastewater Program Supervisor Jimmy R. Padgett and staff member Mark Reese visited the property on November 21, 1996, for a site evaluation.
3. The November 21, 1996 inspection included six soil borings and soil analysis.
4. Based upon their inspection of the property, Padgett and Reese informed Petitioner by letter dated November 21, 1996, that his application for an individual sewage treatment and disposal system could not be approved because of massive clay deposits overlaying shallow rock formations.
5. Upon request of Petitioner, Mark S. Marriner of the DHEC Bureau of Environmental Health re-evaluated the property.
6. Mr. Marriner and Mr. Reese visited the property on December 5, 1996, and performed soil borings.
7. The results of the December 5, 1996 soil tests revealed the presence of rock at depths of twenty-seven (27), twenty-three (23), and forty-six (46) inches and massive clay at depths of twenty (20) and twenty-four (24) inches.
8. Mr. Marriner and Mr. Reese visited the property again on December 10, 1996, with Petitioner, Petitioner's engineer, and a potential buyer present, at which time Marriner and Reese performed another six soil borings.
9. The results of the December 10, 1996 tests indicated that massive clay at depths ranging from three (3) to eighteen (18) inches and rock from twenty (20) to forty-two (42) inches.
10. On December 16, 1996, upon suggestion of Mr. Marriner, Petitioner retained the services of a backhoe for digging pits for the purpose of determining whether holes could be dug deep enough for installation of an experimental septic system. Mr. Marriner, Mr. Reese, Petitioner, Petitioner's engineer, the potential buyer, and the backhoe operator were present.
11. The backhoe pits revealed rock at depths ranging from twenty-two (22) to thirty-six (36) inches.

1. Petitioner was informed of the results of the December 10 & 16, 1996 site evaluations and formally informed of the denial of the permit application by Mark Marriner of DHEC by letter dated January 14, 1997.
2. Petitioner timely petitioned for a contested case hearing, and this matter was transmitted by DHEC to the Administrative Law Judge Division.
3. A contested case hearing was conducted on April 30, 1997, with notice of the date, time, and place given to all parties.
4. A conventional septic tank system requires that the maximum seasonal high water table for the proposed site be at least twenty-nine inches (29") below the ground surface and that any restrictive horizons such as rock formations be at least thirty-five (35) inches below the ground surface for the site to accommodate the system.
5. A modified conventional septic tank system requires that the maximum seasonal high water table for the proposed site be at least twenty-one inches (21") below the ground surface and that any restrictive horizons such as rock formations be at least twenty-seven inches (27") below the ground surface for the site to accommodate the system.
6. An ultra shallow experimental septic system requires that the maximum seasonal high water table for the proposed site be at least twelve inches (12") below the ground surface for the site to accommodate the system. Additionally, the ultra shallow system cannot be installed upon sloping terrain nor within soil with clay content.
7. The sloping terrain of the site renders the property unsuitable for an ultra shallow system.
8. Massive clay deposits are present in the soil within twelve inches (12") of the ground surface.
9. When absorption trenches are placed in impermeable massive clay soils, septic effluent fills the trenches and backs up into the dwelling or comes to the ground surface.
10. Rock formations are consistently found below the property's surface at depths which prevent the installation of adequate drain fields to support any type of individual sewage treatment and disposal system.
11. When absorption trenches are placed in shallow rock soils, sewage may travel through cracks and crevices in the rock to contaminate ground and surface waters.
12. The addition of fill dirt to the property may ultimately render the property suitable for installation of a septic tank system; however, because of the unpredictability of fill materials, monitoring of the property would be necessary to determine if the site is suitable.
13. While Petitioner asserted and witnesses conceded that there exists at least some possibility that a system may operate successfully on his property, Petitioner did not offer any evidence whatsoever to establish that his property meets the necessary criteria for permitting.
14. The property is unsuitable to support a septic tank system.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:

1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 48-1-50, 1-23-600(B), and 1-23-310, et seq. (1986 & Supp. 1996).
2. S.C. Code Ann. § 44-1-140(11) (1987) provides the authority for DHEC to promulgate regulations relating to septic tanks.
3. 24A S.C. Code Ann. Regs. 61-56 (1976) is the applicable DHEC regulation governing individual waste disposal systems and the issuance of septic tank permits.
4. Minimum site condition criteria for individual waste disposal systems include soil texture, depth of soil to rock, and maximum seasonal high water table elevation. Depth to rock and other restrictive horizons shall be greater than one foot (1') below the bottom of the proposed absorption trench. 24A S.C. Code Ann. Regs. 61-56 §V(A) and (C) (1976).
5. Where conditions warrant, alternate systems may be permitted if they meet standards established by DHEC.
6. The property known as Lots 103 and 104, Crystal Lake Subdivision, 961 Resting Place Point, Chapin, Lexington County, South Carolina, as shown on Lexington County Tax Map #1019-01-021, does not meet the minimum site conditions for an individual sewage treatment and disposal system under R. 61-56, Section V.

ORDER

IT IS THEREFORE ORDERED that the septic tank permit application filed by Petitioner is hereby denied.

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STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 15, 1997

Columbia, South Carolina

970038.wpd