SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court)[1] pursuant to the request of Petitioner Betty Crawford for a contested case hearing. Mrs. Crawford challenges the approval by the South Carolina Department of Health and Environmental Control (DHEC or Department) of a septic tank permit application by Mr. Tim McGee for Lot 119A located in the Windwood Subdivision in Berkeley County, South Carolina. A hearing was held on November 3, 2005, at the offices of the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to Petitioner and Respondents.
2. The property that is the subject of this contested case is Lot 119A in Windwood Subdivision, situated in Berkeley County, South Carolina. The owner of Lot 119A is Mr. Tim McGee. On March 8, 2004, Mr. McGee applied for a permit to install a septic system on Lot 119A. Mrs. Betty Crawford, a resident of the Windwood Subdivision, opposed approval of Mr. McGee’s application for a permit. After DHEC approved Mr. McGee’s application, Mrs. Crawford requested a contested case hearing.

3. Mr. Douglas Smits, a resident of Windwood Subdivision, testified on behalf of Petitioner that the Department only performed one soil boring in the proposed location of the septic system. Mr. Smits stated that the “accepted standard” was to perform a minimum of three soil borings in the area designated for the proposed system. Mr. Smits, however, did not cite any South Carolina legal authority in support of this statement and acknowledged that he knew of no requirement in South Carolina Regulation 61-56 that a minimum of three soil borings be performed. Smits further testified that, in his opinion, the property corners were not marked and the trenches for the system were to be installed opposite the slope of the land. In addition, Smits opposed the issuance of a septic system permit because, in his view, Mr. McGee should not have been allowed to subdivide the lot.[2] Petitioner Crawford’s husband, Jimmy Crawford, also testified that he is concerned that approval of Mr. McGee’s permit will result in contamination of a lake in the subdivision.

4. Brandon Stephens, an employee of DHEC who has been evaluating septic sites for DHEC since 1998, was originally designated to evaluate the soil conditions and determine if the lot was suitable for a septic system. On March 15, 2004, Stephens evaluated Lot 119A by performing a minimum of two borings in the area of the approved drain field. The results of these borings, which indicated that the water table was located at 15 to 16 inches below grade, supported the installation of an ultra-shallow septic system. The ultra-shallow septic system is commonly used in the Low Country and is considered to be a good, efficient system. Accordingly, Mr. Stephens approved the site for an ultra-shallow septic system.

Nevertheless, because the property slopes from left to right, Stephens repositioned the system to place it on level ground. This resulted in one of Stephens’ original borings being outside the specific area of the proposed system. However, two other DHEC staff performed additional borings in the area of the proposed system. On April 19, 2004, Ben Milligan, who has twenty-seven years of experience evaluating sites for septic systems, performed a boring in the center of the proposed drain line. The results of Milligan’s boring indicated that the water table in the location of the proposed system was 16 inches below grade. Mark Marriner, who has been employed with DHEC’s Environmental Health Division since 1986, also performed two additional borings in the location of the drain field. Marriner’s findings further confirmed that the site was suitable for an ultra-shallow septic system. Therefore, a total of four borings in the area of the proposed system confirmed that the site was suitable for an ultra-shallow septic system.

Furthermore, the area of the proposed drain field is essentially level. More specifically, in the area of the drain field, there is two inches or less of slope. It is a rare piece of property that does not have at least a two inch variation in slope over 60 feet. The intent of the requirement that drain lines run along the contour of the land is to prevent trenches and drains from running into a hill. That is not the case here. The trenches for the proposed system are appropriate and the system meets the requirements of Regulation 61-56.

5. The distance to the lake from Lot 119A is approximately one thousand feet. This well exceeds the minimum regulation setback requirement of 50 feet that is set forth in Regulation 61-56 V(E). Furthermore, there is no reasonable basis to conclude that the system approved for Tim McGee’s lot will fail or that it is likely to contaminate the lake.

6. Lot 119A is suitable for an ultra-shallow system.

CONCLUSIONS OF LAW

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

1. This Court has jurisdiction over this matter pursuant to the South Carolina Administrative Procedures Act. See S.C. Code Ann. § 1-23-600(B) (2005); S.C. Code Ann. § 1-23-310 et seq. (2005). Pursuant to that jurisdiction, a South Carolina Administrative Law Judge presides over all hearings of, and serves as the finder of fact in, contested DHEC permitting cases. See Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577, 595 S.E.2d 851, 853 (Ct. App. 2004) (citing Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002)).

2. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998). Furthermore, Petitioner, as the moving party challenging the Department’s decision to approve Mr. McGee’s septic tank permit application, bears the burden of proof in this case. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000).

3. S.C. Code Ann. § 44-1-140(11) (2002) provides DHEC the authority to propose and enforce “reasonable rules and regulations” relating to septic tank systems. Pursuant to that authority, 24A S.C. Code Ann. Regs. 61-56 (1976), which governs individual waste treatment and disposal systems (commonly referred to as septic tank systems) and the issuance of permits for such systems, was promulgated.

South Carolina Regulation 61-56 requires every dwelling unit that is occupied for more than two hours per day to have facilities for the treatment and disposal of sewage. 24A S.C. Code Ann. Regs. 61-56 III(A) (1976). Before constructing and operating an individual sewage treatment and disposal system, a property owner must first secure permission from the Department. S.C. Code Ann. § 48-1-110(a) (1987 & Supp. 2004); 24A S.C. Code Ann. Regs. 61-56 III(B) & IV(B)(1) (1976). Regulation 61-56 V also outlines the minimum soil condition requirements that each proposed septic tank site must meet. In particular, Regulation 61-56 V(B) sets forth that “[t]he maximum seasonal high water table elevation shall not be less than six (6) inches below the bottom of the proposed soil absorption trenches or alternate system.” 24A S.C. Code Ann. Regs. 61-56 V(B) (1976). Furthermore, before a permit will be granted, the system must meet the minimum requirements, contained in Regulation 61-56 VII, for a final treatment and disposal system. Where conditions warrant, the Department may consider an alternate system for the final treatment and disposal of sewage, but the standards for the alternate system must have been established by the Department. 24A S.C. Code Ann. Regs. 61-56 VII(C) (1976).

4. Although Petitioner asserted that at least three soil borings should have been made by the Department in the drain field, there is no such requirement in Regulation 61-56. Moreover, the Department presented evidence that four borings were performed in the location of the proposed system. Similarly, Petitioner’s allegation that the property corners were not marked at the time of the department’s first visit does not constitute a violation of Regulation 61-56. Nevertheless, the evidence established that the property boundaries were indeed determined.

Petitioner also alleged that the drain lines for the system were designed to be installed against the contour of the land. 24A S.C. Code Ann. Regs. 61-56 VIII(A) (1976) provides that “[o]n sloping terrain, soil absorption trenches shall be installed so as to follow the contours of the land.” The evidence, however, demonstrated that the system is in a level area with a slope of two inches or less.

5. I conclude that Petitioner did not establish that the site fails to meet the requirements of Regulation 61-56 or the standards for an ultra-shallow system. Furthermore, I find that DHEC properly determined that Lot 119A meets the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56 and the standards for an ultra-shallow system.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the septic tank permit application of Respondent Tim McGee is approved.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

January 31, 2006

Columbia, South Carolina