SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) following South Carolina Department of Health and Environmental Control’s (Department) revocation of Permit No. 1998090013 to install a septic tank and drainfield for a three bedroom residence upon Timothy I. McConnell’s property. A contested case hearing was held at the offices of the Division on September 25, 2003.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of the evidence:

1.Petitioner Timothy I. McConnell is the owner of Lot 42-C, located in Little River Subdivision, McCormick County, South Carolina. Lot 42-C is adjacent to the J. Strom Thurmond Reservoir. The Petitioner acquired Lot 42-C from William Posillico on August 28, 2001, for a purchase price of $160,000.00.

2.On September 18, 1998, William Posillico submitted an application to the Department for a “Permit to Construct an Individual Sewage Treatment and Disposal System” for a three bedroom house at Lot 42-C. An evaluation of Lot 42-C was conducted by Department employee Scott Yarborough, on September 18, 1998, and again on October 28, 1998. Mr. Yarborough analyzed seven soil borings and two backhoe pits. On February 5, 1999, the Department issued its permit to Posillico and approved an area where Posillico proposed to construct a house, between the proposed house and the lake, for the installation of a drainfield. Posillico, however, did not construct a house. Instead, Posillico sold Lot 42-C to McConnell, who was given a copy of the Posillico permit prior to closing on this property. Following the purchase of Lot 42-C, the Petitioners began contemplating the construction of a house larger than three bedrooms on this site. In January of 2003, the Petitioners filed a new permit application with the Department, assigned Application No. 2003010007. Pursuant to that application, site evaluations were conducted on February 3, 2003, February 20, 2003, and March 14, 2003.

On April 07, 2003, Department employee Todd Self notified the Petitioners by letter that Septic System Application No. 2003010007 was denied. In that letter the Petitioners were advised that they could request administrative/field review of the septic tank permit denial. By letter from David C. McConnell dated April 8, 2003, the Petitioners formally requested an administrative review of that denial. In response to that letter, the Petitioners were advised that “[s]taff will review all facts and relevant information regarding the septic tank permit denial and determine if reconsideration can be given to your application.” Afterwards, Department employee Reid Houston informed David McConnell that his appeal of the Department’s denial of the referenced application was denied. Additionally, Houston stated: “I must inform you that we have identified your permit, number 1998090013 as a permit that was issued in error. . . . Regrettably, I must inform you that since this permit was issued erroneously, we must revoke it pursuant to the Pollution Control Act, South Carolina Code of Laws, Section 48-1-50 subsection 5.”

3.The Department has a policy of “honoring” septic tank permits. In fact, Mr. Self wrote a letter to David McConnell on April 7, 2003, stating that “there is an existing permit in the name of William Posillico for a three bedroom house on this lot. You may use this existing permit as long as all specifications and requirements of that permit are met.” However, in this case, the Department did not base its revocation of the Posillico permit on a change in conditions. Rather, the Department determined that the Posillico permit was issued in error.

The Petitioners had no notice, until after the Department’s revocation, that the Posillico permit was under review by the Department. In fact, Mr. Self and Mr. Houston had both told the Petitioners that they could use the Posillico permit. Moreover, all documents associated with the Department’s review of Lot 42-C reference that the regulatory action under review was the Department’s denial of Application No. 2003010007.

4. Mr. Yarborough’s soil texture and water table findings were generally consistent with what Mr. Self and Mr. Houston found during their 2003 site evaluations, although Mr. Yarborough found one soil boring and one backhoe pit with a water table as deep as twenty-six (26) inches. Nevertheless, the Department determined that because of the water table depth it would be impossible to construct a properly functioning septic system on any portion of Mr. McConnell’s lot. A shallow water table prevents proper drainage of the septic system’s wastewater. In addition, if a septic system is installed within six inches of the water table, there is not enough soil between the system and water table to properly treat the discharge. The result is contamination of the groundwater.

Mr. Yarborough’s site evaluation shows he found a soil boring and a backhoe pit with a twenty-six (26) inch water table, one soil boring with a twenty-four (24) inch water table, and a backhoe pit with a seventeen (17) inch water table. Although the Department’s recent review indicates that the soil could not support any septic system, these four water table depths indicate conditions that are suitable for certain systems.

CONCLUSIONS OF LAW

1.The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).

2.Every dwelling unit which is occupied for more than two hours per day must 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) (Supp. 2002); 24A S.C. Code Ann. Regs. 61-56 III(B) & IV(B)(1) (1976). South Carolina Regulation 61-56 outlines the minimum soil condition requirements that each proposed septic tank site must meet. 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.” Regulation 61-56 V(C) further states that the depth to “rock and other restrictive horizons shall be greater than one (1) foot below the bottom of the proposed soil absorption trenches or alternate system.” These two sections require that the bottom of the septic system drain trenches must be at least twelve (12) inches above any rock formations or other restrictive horizons, and at least six inches above the seasonal high water table.

Necessity of Hearing Before the Department

3.The Petitioners contend that pursuant to the Administrative Procedures Act (APA) revocation of a permit is not lawful unless, prior to institution of the agency’s proceedings, the Department gave notice to the Petitioners of the facts warranting revocation, and that the Petitioners were allowed the opportunity to respond to the Department. The APA provides that “[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.” S.C. Code Ann. § 1-23-370(c) (1986 & Supp. 2002). “Showing compliance [under Section 1-23-370(c)] means showing that at the time of the alleged violation appellant was in full compliance with the law.” Garris v. South Carolina Reinsurance Facility, 319 S.C. 388, 391, 461 S.E.2d 819, 821 (1995). However, the Administrative Law Judge now presides as the fact-finder in hearings involving the Department. Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 565 S.E.2d 119 (Ct. App. 2002). Therefore, the hearing before the Division fulfills any APA hearing requirements mandated to the Department. Moreover, the Petitioners received proper notice of the Administrative Law Judge Division hearing under Section 1-23-370(c). The Petitioners were also given a full and fair opportunity to show compliance at the Division’s hearing into this matter. In fact, the Petitioners were given the opportunity to present expert evidence showing compliance with Regulation 61-56 and were provided the chance to cross-examine the Department’s staff on a range of issues concerning the revocation of the Posillico permit. Therefore, I find that this claim is groundless.

Equal Protection

4.The Equal Protection Clause provides, “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1; See also S.C. Const. art. I, § 3. A classification does not violate the Equal Protection Clause if: (1) the classification bears a reasonable relation to the legislative purpose sought to be effected; (2) the members of the class are treated alike under similar circumstances and conditions; and (3) the classification rests on some reasonable basis. Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999). The aggrieved party also carries the burden to establish an equal protection violation. TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998). “In order to establish an equal protection violation, a party must show that similarly situated persons received disparate treatment.” Id.; See also Grant v. South Carolina Coastal Council, 319 S.C. 348, 355, 461 S.E.2d 388, 392 (1995) (“[W]e agree with the circuit court that Grant did not prove the Coastal Council treated him differently from other similarly situated landowners.”).

The only evidence produced regarding this issue was two permits: the 1984 Kirby permit and 1984 Waggoner permit. In both of these cases there was no testimony that the water table or the soil conditions on the Kirby and Waggoner lots were similar to the McConnell lot. Furthermore, although there was testimony that the Posillico permit was definitely issued in error, there was no such testimony concerning the Kirby and Waggoner permits. Therefore, the Petitioners failed to show that the Department violated their equal protection rights.

Permit Revocation

5.The Petitioners argue that they relied upon representations of the Department’s employees that its review of Lot 42-C was for the sole purpose of considering the Department’s denial of the five bedroom application. Based on this reliance, the Petitioners authorized the Department to enter their property and take soil samples. Where its officers or agents act within the proper scope of their authority, a governmental body may be bound by estoppel. Nevertheless, a governmental body cannot be estopped by the unauthorized or erroneous conduct or statements of its officers or agents which have been relied on by a third party to his detriment. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Moreover, the doctrine of estoppel cannot be applied to deprive the State of its authority to use its police power or to thwart its application of public policy. South Carolina Department of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980). However, in The Landing Dev. Corp., et al. v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1984), the Supreme Court found that the general rule that the doctrine of estoppel is not to be applied to deny a governmental agency the due exercise of its police power does not control in every case. Rather, the Court held that since estoppel is an equitable doctrine that is characterized by flexibility, it is applied or denied “as equities between the parties may preponderate.” Id. at 425. When estoppel is applicable against the government, the relying party must prove: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) justifiable reliance upon the government’s conduct; and (3) a prejudicial change in position. Greenville County v. Kenwood Enterprises, Inc., et al., 353 S.C. 157, 577 S.E. 2d 428 (2003).

Here, the Petitioners lacked any knowledge that the 1999 three bedroom permit was subject to revocation during the Department’s reevaluation of the five bedroom permit application. Nor could the Petitioners have the means of knowledge, given the Department’s repeated assurances that the three bedroom permit was valid. Certainly, Petitioners were justified in their reliance on the continued validation of the three bedroom permit based on Mr. Self’s and Mr. Houston’s representations, and based on the fact that at all times during the Department’s review of this site that review was for the stated purpose of considering the Department’s denial of the five bedroom permit application. Based on this reliance, the Petitioners authorized Houston to enter the property and take soil samples. Consequently, the Petitioners suffered prejudice because of their reliance on the Department as the Department has revoked their permit.

I, therefore, find that the Department’s assertions limited its review of the property solely as to the suitability of the site to receive a septic permit for a five bedroom home. The Department is estopped by its actions from reviewing the previously issued permit. The Department is not unduly restrained by this holding. The Department has the authority to monitor this project and to protect the public health, safety and welfare of the people of the State, should the Petitioners’ septic system fail to perform properly as it would do concerning any approved system that subsequently malfunctioned. See Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987).

Moreover, though the Department may revoke its permits, that authority is circumscribed in this case. 24A S.C. Code Ann. Regs. 61-56 IV (B)(4) provides that “[t]he permit shall become void if any of the original conditions upon which it was issued are changed.” Here, after conducting its inspection to determine the suitability of the site to receive a septic permit for a five bedroom home, the Department revoked the existing permit for a three bedroom system. However, none of the conditions that were the basis for the issuance of the three bedroom permit have changed. The Petitioners are not proposing to move the approved septic tank or drainfield, or to construct a different system other than what was permitted. Nor are the Petitioners proposing to use the approved septic tank or drainfield for a five bedroom residence. More important, the system that the Department approved has not been improperly installed and has not failed. Therefore, I find that there is no basis here to void the Posillico permit.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that Permit No. 1998090013 to install a septic tank and drainfield for a three bedroom residence on Lot 42-C in Little River Subdivision, McCormick County, South Carolina is GRANTED.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

November 20, 2003

Columbia, South Carolina