SC Administrative Law Court Decisions

National Audubon Society, Inc. (Audubon) and William D. Hill, Jr. (Hill) obtained a contested case hearing to challenge the granting by the South Carolina Department of Health and Environmental Control (DHEC) of Interstate Speedway's application for a septic tank permit. The permit will be used for a racetrack to be located at a site near the Four Holes Swamp in Berkeley County, South Carolina. Jurisdiction vests in the Administrative Law Judge under S.C. Code Ann. § 44-1-50 and § 1-23-600(B) (Supp. 1996).

The hearing of this matter was held on June 12 and 13, 1997. Under the evidence and arguments of this case, DHEC is not required to promulgate regulations addressing standards for alternate septic tank systems, and the system in dispute here does not contravene the statutes and regulations governing septic tanks. The permit, however, may not be granted until DHEC, through its Office of Ocean Coastal Resource Management (OCRM), determines whether the permit is one it must or should review for the impact the permit will have upon the coastal zone management policies. Accordingly, this matter is remanded to DHEC's Office of OCRM for further determination.

1. Is the issuance of a septic tank permit for this coastal zone site improper due to DHEC's and OCRM's failure to comply with the requirements of the Coastal Zone Management Act to review and certify that the requested permit is in compliance with the policies of the coastal management program?

2 Is DHEC's issuance of a septic tank permit for Speedway's alternate treatment system improper due to the lack of regulations to establish the standards for such alternate treatment systems?

3. Does Speedway's proposed waste treatment system fail to meet the requirements of DHEC Regulation 61-56 so as to result in the improper discharge of sewage?

1. Positions of Parties:

Since the location for the septic tank permit is in the coastal zone, Audubon argues that DHEC must determine whether the requested permit is in compliance with the policies of the coastal management program. Further, Audubon asserts DHEC, through OCRM, has not made such a determination and thus the permit is improperly granted. DHEC and Speedway argue no evaluation under the Coastal Zone Management Act is required.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. The Speedway racetrack and septic tank system will be located in Berkeley County, adjacent to Interstate 26, on a 60.36 acre undeveloped parcel formerly used for agricultural purposes.

2. The managing partners of Speedway are Mike Brown (Brown) and Howard Tharp (Tharp).

3. The proposed racetrack will consist of a half-mile concrete oval track and grassed infield and parking areas, along with a stadium which will accommodate approximately 4,500 spectators.

4. Speedway will charge admission to spectators to attend the events held at the racetrack.

5. Speedway will sell food items and other merchandise to customers who attend events held at the racetrack.

6. Speedway seeks a septic tank permit for use at the racetrack site.

7. DHEC granted the permit.

8. In the process of deciding whether to grant or deny the permit, OCRM did not determine if the requested permit was for a septic tank handling other than domestic waste.

9. OCRM did not determine if the permit was consistent with the coastal zone management program or policies.

3. Discussion:

The proposed motor speedway is adjacent to the Four Holes Swamp in Berkeley County. Because Berkeley County is a coastal zone county, the Coastal Tidelands and Wetlands Act (Coastal Act), S.C. Code Ann. §§ 48-39-10 et seq. (Supp. 1996), is applicable. § 48-39-10(B) (Supp. 1996).

The Coastal Act requires the development of a comprehensive coastal management program. § 48-39-80. Specifically, OCRM develops the program and recommends it to the Governor and General Assembly for approval. § 48-39-50(C) (Supp. 1996). Upon adoption, OCRM enforces and administers the program consistent with chapter 39 of Title 48 and any rules and regulations promulgated under that chapter. § 48-39-80 (Supp. 1996).

A significant administrative and enforcement tool under the Management Program requires that OCRM

"[d]evelop a system whereby the department shall have the authority to review all state and federal permit applications in the coastal zone, and to certify that these do not contravene the management plan." § 48-39-80(B)(11) (Supp. 1996).

The Management Program specifically identifies numerous permits for review to assure consistency with coastal zone management policies. See State of South Carolina Coastal Management Program and Final Environmental Impact Statement, p. V-4 ("Table 1 . . . indicates the State permits which will be subject to review and certification.") (Emphasis added.); p. V-5 ("State Agency Permits Subject to Council Review and Certification" ).

Permits subject to review include "[s]tate permits to construct . . . septic tanks handling . . . other than domestic waste." Thus, at least from the perspective of the Management Program, OCRM is concerned with those septic tank permits that allow, or will in fact process, at least to some degree, wastes that are not domestic waste.

Accordingly, under the Management Plan, the "other than domestic waste" septic tank permit is a reviewable permit. OCRM, however, states it does not subject any septic tank permits to review. Thus, as a matter of policy, OCRM has no procedure or mechanism for deciding whether a septic tank is one that must be reviewed. At a minimum, under the dictates of the Management Program, OCRM must decide what is meant by "other than domestic waste" and then determine if the permit being sought is handling such waste.⁽¹⁾ If the septic tank handles such waste, OCRM must then subject that permit to review for compatability with the coastal zone management program. OCRM's failure to determine the nature of the waste to be handled by a septic tank is a failure by OCRM to apply the review provisions of the Management Program.

In this case OCRM made no determination as to whether the Speedway system will handle "other than domestic waste" and thus never reached the question of whether a reveiw for the impact upon coastal zone policies was warranted. Accordingly, the permit by Speedway cannot be granted until OCRM decides whether the permit being sought is the type subject to review. Further, if the permit is a reviewable permit, OCRM must conduct that review before the permit can be granted. Thus, the current permit is improperly granted until such a review is completed. See South Carolina Wildlife Federation v. South Carolina Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (S.C. 1988) (before dredging permit could be issued the Coastal Council must first certify that such a project does not contravene its Coastal Management Program).

4. Conclusions of Law

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

1. Because the septic tank permit is to be used for a site located in Berkeley County, a coastal zone county, the Coastal Tidelands and Wetlands Act (Coastal Act), S.C. Code Ann. §§ 48-39-10 et seq. (Supp. 1996), is applicable. § 48-39-10(B) (Supp. 1996).

2. The development of a comprehensive coastal management program is required. § 48-39-80.

3. OCRM is charged with developing the program and recommending it to the Governor and General Assembly for approval. § 48-39-50(c) (Supp. 1996).

4. OCRM enforces and administers the adopted program consistent with chapter 39 of Title 48 and any rules and regulations promulgated under that chapter. § 48-39-80 (Supp. 1996).

5. OCRM must develop a system to review all state and federal permit applications in the coastal zone and to certify that these permits do not contravene the management plan. § 48-39-80(B)(11) (Supp. 1996).

6. The Management Program identifies specific permits for review by OCRM to enable OCRM to assure consistency with coastal zone management policies. See State of South Carolina Coastal Management Program and Final Environmental Impact Statement, pp. V-4 and V-5.

7. Permits subject to review include "[s]tate permits to construct . . . septic tanks handling . . . other than domestic waste." See State of South Carolina Coastal Management Program and Final Environmental Impact Statement, pp. V-4 and V-5.

8. OCRM's failure to determine the nature of the waste to be handled by a septic tank is a failure by OCRM to apply the review provisions of the Management Program. See State of South Carolina Coastal Management Program and Final Environmental Impact Statement, pp. V-4 and V-5.

9. A permit, such as the current permit, is improperly granted until OCRM decides whether the permit is one that it must or should review for the impact the permit may have upon the coastal zone management policies. See South Carolina Wildlife Federation v. South Carolina Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988).

1. Positions of Parties:

Audubon argues that DHEC's issuance of a septic tank permit for Speedway's alternate treatment system is improper since no regulations establish the standards to be met by an alternate treatment system. DHEC argues the standards need not be issued as regulations but rather may be applied based upon the judgment of the agency.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. The site for a septic tank system for Speedway presents facts beyond the circumstances allowing a conventional individual sewage disposal system.

2. A conventional system is designed for use when the estimated maximum seasonal high water table is greater than twenty-nine inches from the surface.

3. A conventional system consists of soil absorption trenches that are at least twenty-three inches deep.

4. In areas where the maximum estimated seasonal high water table elevation is less than thirty inches, DHEC relies upon standards to permit the use of alternate systems.

5. Alternate systems modify the absorption trenches to make them shallower than that specified with the conventional system (23" deep) but lengthen the trenches to make up for the loss of depth.

6. The maximum estimated seasonal high water table elevation for the Speedway site is less than thirty inches.

7. An alternate system was permitted by DHEC for Speedway with DHEC relying upon standards it found acceptable.

3. Discussion:

To regulate individual waste disposal systems, DHEC enacted S.C. Code Ann. Regs. 61-56 (1976). The regulation requires the system to satisfy at least three broad areas of inquiry: the minimum conditions allowable at the site (Regs. 61-56 § V addressing conditions of the land), the minimum requirements for the initial treatment (Regs. 61-56 § VI addressing the septic tank), and the minimum requirements for the final treatment and disposal (Regs. 61-56 § VII addressing the absorption trench).

DHEC's authority under this regulation is very broad. For example, as to the site itself, while the maximum high water table is set and the depth to rock is identified (Regs. 61-56 § V (B and C)), DHEC is authorized to establish "minimum standards" for soil texture. Regs. 61-56 § V (A). Further, while in general the minimum requirements for the design and construction of septic tank are specified, DHEC is authorized to consider an alternate system for a septic tank "[w]here conditions may warrant" so long as "standards for the specific system have been established by [DHEC]." Likewise, DHEC is authorized to consider an alternate system for final treatment and disposal "[w]here conditions may warrant" so long as "standards for the specific system have been established by [DHEC]."

Audubon argues the establishing of "standards" by DHEC must be accomplished by the promulgation of regulations which identify those standards and specify the circumstance and conditions upon which those standards will be applied. Audubon cites § 48-1-90 as requiring persons to obtain a permit to discharge sewage and § 48-1-30 as requiring DHEC to issue regulations "to implement this chapter." I disagree with Audubon's view.

Section 48-1-30, when read as a whole, requires DHEC to promulgate regulations "to implement this chapter to govern the procedure of the Department with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure." First, the statute does not require the promulgation of regulations on the substantive matters of septic tank standards since the statute relates to DHEC establishing "matters relating to procedure." No requirement of the statute directs DHEC to addresses the substantive rules or the application of criteria to facts needed to allow or prohibit the granting of a septic tank permit.

Second, even if § 48-1-30 applied, DHEC complied with the statute by promulgating regulations related to obtaining a septic tank permit by issuing Regs. 61-56. Audubon may desire a more specific regulation directing DHEC to define what standards it will apply for alternate systems, but that lack of specificity is not tantamount to a failure to promulgate a regulation.

Finally, for the disposal of sewage (as is the case here), DHEC "may" promulgate regulations governing the disposition of sewage. See § 44-1-140(11) (Supp. 1996) (DHEC may promulgate regulations requiring the regulation of the methods of disposition of garbage or sewage). (emphasis added). The permitting process is fatally flawed when an agency that is required to promulgate its tests for granting or denying a permit applies unpromulgated tests. Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). However, in the absence of mandatory language requiring the promulgation of regulations, the permitting process is not fatally flawed merely because the agency exercises discretion in its permitting process. Edisto Aquaculture Corp. v. South Carolina Wildlife and Marine Resources Dept., 311 S.C. 37, 426 S.E.2d 753 (1993).

In conclusion, for individualized fact circumstances outside the conventional individual sewage disposal system, DHEC is authorized to apply standards of its own choosing so long as those standards satisfy the statutory and regulatory requirements for disposing of sewage. Regs. 61-56. Since the standards are not issued as a regulation, the criteria chosen are not and cannot be binding upon the party to whom they are applied or parties challenging the standards. See Home Health Service, Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994) (policies endowed with final agency approval which constitute a binding norm upon the agency and the citizenry are required to be issued as regulations while policy statements applicable to discretionary fact patterns are nonbinding policy positions).

In the instant case, Speedway presented a fact pattern beyond the facts of a conventional system. Accordingly, DHEC was authorized to apply standards to those facts so long as those standards satisfied the statutory and regulatory requirements for disposing of sewage. Regs. 61-56. DHEC asserts its standards properly allow the disposal while Audubon does not. Thus, this precise disagreement leads to the third issue of this case: whether the approved system will properly function.

4. Conclusions of Law

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

1. DHEC grants permits for individual waste disposal systems pursuant to criteria and standards authorized by regulation. Regs. 61-56.

2. Among other requirements, three broad areas of inquiry examine the minimum conditions allowable at the site, the minimum requirements for the initial treatment, and the minimum requirements for the final treatment and disposal. Regs. 61-56 §§§ V, VI, and VII.

3. DHEC has broad authority under the regulation to establish "minimum standards" for soil texture, and to consider an alternate system for a septic tank as well as an alternate system for final treatment and disposal "[w]here conditions may warrant" so long as "standards for the specific system have been established by [DHEC]." Regs. 61-56 § V (A), VI (B), and VII (C).

4. DHEC must promulgate regulations "to implement chapter [1 of Title 48] to govern the procedure of the Department with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure." § 48-1-30

5. Section 48-1-30 does not require the promulgation of regulations on the substantive matters of septic tank standards since the statute relates to DHEC establishing "matters relating to procedure."

6. If applicable, DHEC complied with § 48-1-30 by promulgating regulations related to obtaining a septic tank permit. Regs. 61-56.

7. Regs. 61-56 does not have such a lack of specificity so as to be tantamount to a failure to promulgate a regulation.

8. DHEC "may" (but is not required to) promulgate regulations governing the disposition of sewage. See § 44-1-140(11) (Supp. 1996).

9. A permitting process is fatally flawed when an agency that is required to promulgate its tests for granting or denying a permit applies unpromulgated tests. Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

10. In the absence of mandatory language requiring the promulgation of regulations, the permitting process is not fatally flawed merely because the agency exercises discretion in its permitting process. Edisto Aquaculture Corp. v. South Carolina Wildlife and Marine Resources Dept., 311 S.C. 37, 426 S.E.2d 753 (1993).

11. The individualized fact circumstances presented by Speedway present circumstances outside the conventional individual sewage disposal system and thus allow DHEC to apply standards of its own choosing so long as those standards satisfy the statutory and regulatory requirements for disposing of sewage. Regs. 61-56.

12. Since the standards applied to Speedway are not issued as a regulation, the criteria chosen are not and cannot be binding upon either the party to whom they are applied or parties challenging the standards. See Home Health Service, Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994).

13. DHEC is not required to promulgate regulations before it can approve a septic tank permit based upon its choice of standards applied to fact circumstances which (as is the case here) exceed the circumstances making a conventional system applicable. Regs. 61-56.

1. Positions of Parties:

Audubon argues that Speedway's proposed waste treatment system fails to meet the requirements of DHEC Regulation 61-56 and will result in the improper discharge of untreated sewage. DHEC and Speedway argue the engineering plans meet all the requirements of the regulations, and the system will function properly so as not to create an improper discharge into the environment.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. Speedway expects to annually operate its facility from April 1 to September 30 with operations limited to one event per week with that event on Saturday evenings.

2. The receiving water body for any run-off or discharge from this property is the Four Holes Swamp.

3. The Four Holes Swamp is a coastal plain, blackwater wetlands system approximately 50 miles long and, on average, a mile and a half wide flowing into the Edisto River.

4. The Four Holes Swamp is classified as freshwater (FW) by DHEC for water body standards and uses.

5. Several industrial discharges are permitted into tributaries of the Four Holes Swamp system.

6. The Francis Beidler Forest is owned by the National Audubon Society, and is located within the Four Holes Swamp.

7. The Francis Beidler Forest is located in a six mile stretch of the swamp.

8. The Forest includes the largest remaining stand of virgin cypress tupelo along with other rare plants and trees.

9. The Forest is characterized as an "ancient forest" based on the age of some of the trees and the fact that the forest has been relatively unchanged for centuries.

10. The Forest provides a habitat for numerous species of songbirds and two species of rare bats.

11. The Forest is eligible for listing on the National Register of Historic Places.

12. Portions of the Forest, with the permission of National Audubon Society, have either recently been logged or will be logged at some time in the future.

13. The Forest consists of approximately 11,000 acres and is held as a Nature Sanctuary.

14. The Forest is open to the public Monday through Saturday, and on at least one Saturday evening a month the Forest sponsors Interpretive Night Walks.

15. The Forest is located entirely upstream of the proposed racetrack site, with its southern-most boundary approximately two miles from the racetrack.

16. The majority of Four Holes Swamp is upstream of the racetrack, with approximately 25% of the swamp system located downstream of the racetrack.

17. Hill owns property adjacent to the racetrack.

18. Water flowing off of the racetrack site enters Hill's property through a culvert into a borrow pit, and then flows into Four Holes Swamp.

19. On August 14, 1995, Brown submitted an application to construct a septic tank at the Speedway site.

20. The application states that the number of occupants would be 4,000, the number of employees would be twenty-five, and the hours of operation would be five hours, one day per week.

21. M. Reid Houston (Houston), a DHEC employee who is the Supervisor of the Septic Tank Program in Berkeley County, conducted a site review for this application.

22. Houston's opinion was that the proposed system met the definition of a large flow system since the system would exceed 1,500 gallons per day.

23. DHEC policy restricts large flow systems to soils suitable for a conventional septic system.

24. Where appropriate, alternate systems, known as modified conventional systems, are allowed where the site provides a minimal six inch separation from the bottom of the trench to the maximum estimated seasonal high water table.

25. To determine site suitability for a septic tank, DHEC examines soils through soil borings to estimate the maximum seasonal high water table elevation.

26. The maximum seasonal high water table elevation is determined by examining the soil for gray colors, or mottles.

27. The drain field area at the racetrack presents a maximum estimated seasonal high water table ranging from twenty-two to twenty-six inches.

28. On August 17, 1995, Houston sent a letter to Brown notifying him that DHEC had denied his application for a septic tank since the soil profile revealed that the seasonal high water table was less than thirty inches from the surface of the ground.

29. Brown requested a further review by DHEC.

30. The further review resulted in a subsequent site visit on September 17, 1997.

31. This site visit was attended by several members of the DHEC staff from both Columbia and Berkeley County.

32. Several borings were performed during this visit.

33. The borings confirmed Houston's findings that the maximum estimated seasonal high water table elevation was between twenty-two and twenty-six inches.

34. During this site visit, discussions addressed the concept of controlling the flow so as to reduce it to under 1,500 gallons per day.

35. Subsequently, Speedway's engineer, Walter Warren (Warren), designed a pump controlled septic tank system consisting of a series of septic tanks, a holding tank, two back-up holding tanks, a time and dose controlled pump, and an oversized drain field.

36. This system was designed to control the amount of effluent released onto the drain field to less than 1,500 gallons per day.

37. On July 3, 1996, DHEC issued a permit to construct the septic tank system designed by Warren.

38. The permit was conditioned by a requirement that the flow of wastewater not exceed 1,000 gallons per day and that the system be constructed in accordance with Warren's plans.

39. Further, DHEC conditioned the permit by incorporating the terms of a Consent Agreement executed on March 11, 1996 between DHEC and Speedway, which further restricted the operation of the system.

40. Further, DHEC conditioned the permit by requiring that this system could not operate as a "pump and haul" system and that the overflow tanks were only for emergency use.

41. The drain field permitted as part of the system must consist of eight trenches, each 250 feet long.

42. The trenches must be fifteen inches deep in order to maintain the six inch required separation from the high water table.

43. The maximum expected flow will be no more than 6,544 gallons per event.

44. An appropriate loading rate for the soil type located in the drain field is .25 gallons per square foot.

45. The drain field of 2,000 linear feet of trenches, with each of the trenches at twenty feet off center, is four times larger than what the Department would require for construction of this drain field.

46. The system as designed by Warren has the potential to contain 15,000 gallons.

47. The system is adequate to contain the flow from this site.

48. The materials used to construct this system are suitable to perform as predicted.

49. The tanks are not likely to leak, and the pump is likely to function and to maintain the appropriate dosing onto the drain field.

50. In the event any portion of the system fails, the failure will be detected quickly due to Speedway's agreement to contract with a system operator.

51. No persuasive evidence demonstrates the system will not operate as predicted.

52. This system will reduce flows to under 1,000 gallons per day.

53. During its evaluation of this application, DHEC examined but did not record the results of several soil samples from the area designated for the siting of the drain field.

54. All of the unrecorded samples demonstrate the estimated maximum seasonal high water table from the area designated for the siting of the drain field is between twenty-two and twenty-six inches.

55. A large area set aside on the southwest section of the site serves as an adequate repair area.

56. The topography of the southwest section depicts the highest elevations on the site and demonstrates the site drains towards the north-northeast.

57. The southwest section of the site is a suitable location for both the septic tank system and the repair area.

3. Discussion:

a. Introduction

In the instant case Audubon essentially argues granting the permit is improper since the system will violate existing statutes and regulations governing septic tank discharges. In particular, Audubon asserts the Speedway system will violate Regs. 61-56 § XI by creating the discharge of septic tank effluent to the surface of the ground. In short, from Audubon's point of view, the system will not work. Obviously, DHEC and Speedway assert the system is properly designed and will not present a discharge problem.

The two most significant elements related to the ability of a septic tank system to process and properly discharge effluent are the seasonal high water table and the soil texture at the site. In general, the regulations require the site to meet standards set by DHEC who "at its discretion, [may] establish policies and standards concerning all aspects of individual sewage treatment and disposal." 24A S.C. Code Ann. Regs. 61-56 § XIII (1976). In this case, the standards and restrictions placed upon the Speedway permit do not create a system that will create an improper system nor will the permit create a discharge of septic tank effluent to the surface of the ground.

b. Factual Basis Supporting Permit

During a calendar year, the Speedway racetrack will operate only on Saturday evenings from April 1 to September 30. Even though this period is of limited duration, Audubon is concerned that the septic tank system may fail and result in effluent entering the Four Holes Swamp (Swamp) since any run-off or discharge from the racetrack property is into the Swamp. The Swamp itself is a mile and a half wide coastal plain, blackwater wetlands system approximately fifty miles long flowing into the Edisto River. While the water in the Swamp is classified as freshwater by DHEC, tributaries of the Swamp currently serve as permitted points for industrial discharges.

A six mile stretch of the swamp contains the Francis Beidler Forest (Forest) owned by Audubon. The Forest is approximately 11,000 acres and constitutes a Nature Sanctuary open to the public Monday through Saturday. On at least one Saturday evening a month, the Forest sponsors Interpretive Night Walks.

A unique feature of the Forest is that its stand of virgin cypress tupelo is the largest in the world. In fact, based on the age of some of the trees and based upon the fact that the area has been relatively unchanged for centuries, the Forest is characterized as an "ancient forest." In deed, the Forest, which provides a habitat for numerous species of songbirds and two rare bats, has such unique characteristics and age that it is eligible for listing on the National Register of Historic Places. While much of the Forest remains in an essentially pristine state, portions, however, have either recently been logged or will be logged at some time in the future.

In relation to the racetrack, the Forest is located entirely upstream of the racetrack site with the southern-most boundary of the Forest approximately two miles away. Further, the majority of the Swamp itself is upstream of the racetrack with only approximately 25% of the swamp system located downstream of the racetrack. In relation to Hill, the racetrack is next door with water flowing off of the racetrack site entering Hill's property through a culvert into a borrow pit and then flowing into Four Holes Swamp.

Against this backdrop of the Forest, the Swamp, and Hill as the next door neighbor, in August of 1995, Brown submitted to DHEC an application to construct a septic tank system for the Speedway racetrack. Houston, a DHEC employee functioning as the Supervisor of the Septic Tank Program in Berkeley County, conducted a site review. Since Brown's application estimated that the number of spectators would be 4,000, the number of employees would be 25, and the hours of operation would be 5 hours, one day per week, Houston's opinion was that the proposed system had to be evaluated as a large flow system. A large flow system is one that will exceed 1,500 gallons of discharge per day. Since DHEC policy restricts large flow systems to soils suitable for a conventional septic system, the investigation became one of deciding if the site qualified for a conventional septic tank.

In making his investigation Houston examined the soils through soil borings to estimate the maximum seasonal high water table elevation. The maximum seasonal high water table elevation is found by examining the soil for gray colors, or mottles. Testing results revealed that the racetrack site presented a maximum estimated seasonal high water table ranging from twenty-two to twenty-six inches. Accordingly, on August 17, 1995, Houston sent a letter to Brown notifying him that DHEC had denied his application for a septic tank since the soil profile revealed that the seasonal high water table was less than 30 inches from the surface of the ground.

Brown requested a further review by DHEC which resulted in another site visit on September 17, 1997. This site visit was attended by several members of the DHEC staff from both Columbia and Berkeley County with several soil borings performed during this visit. Again, the new borings confirmed Houston's findings that the maximum estimated seasonal high water table elevation was between twenty-two and twenty-six inches.

With the newly confirmed data, discussions began on the concept of controlling the flow to reduce it to under 1,500 gallons per day. The reason for these discussions was that, where appropriate, alternate systems, known as modified conventional systems, may be allowed if the site provides a minimal six inch separation from the bottom of the trench to the maximum estimated seasonal high water table. Pursuant to this objective, Speedway's engineer, Walter Warren (Warren), designed a pump controlled septic tank system consisting of a series of septic tanks, a holding tank, two back-up holding tanks, a time and dose controlled pump, and an oversized drain field. The system was designed to control the amount of effluent released onto the drain field to less than 1,500 gallons per day.

On July 3, 1996, DHEC issued a permit to construct the septic tank system designed by Warren. The permit was conditioned by a requirement that the flow of wastewater not exceed 1,000 gallons per day and that the system be constructed in accordance with Warren's plans. Further, DHEC conditioned the permit by incorporating the terms of a Consent Agreement executed on March 11, 1996, between DHEC and Speedway which further restricted the operation of the system. In addition, DHEC conditioned the permit by a requirement that this system could not operate as a "pump and haul" system and that the overflow tanks were only for emergency use. Specific construction requirements dictated that the drain field permitted as part of the system must consist of 8 trenches, each 250 feet long. The trenches must be fifteen inches deep in order to maintain the six inch required separation from the high water table of twenty-two inches.

In deciding that the system would function properly, the maximum expected flow from the Speedway was restricted to no more than 6,544 gallons per event. Further, the loading rate for the soil type located in the drain field was calculated at .25 gallons per square foot and the drain field of 2,000 linear feet of trenches required trenches at twenty feet off center. In fact, the resulting drain field is four times larger than what DHEC would have required. When completed, the system designed by Warren has the potential to contain 15,000 gallons.

When all factors are considered the system is adequate to contain the flow from this site and no discharge to the surface is likely. The materials used to construct this system are suitable to perform as predicted. The system will reduce flows to under 1,000 gallons per day. The tanks are not likely to leak, and the pump is likely to function and to maintain the appropriate dosing onto the drain field. In any event, even if any portion of the system should fail, the failure will be detected quickly due to Speedway's agreement to contract with a system operator.

Specifically, as to the drain field, during the site evaluation DHEC examined but did not record the results of several additional soil samples from the area designated for the siting of the drain field. The unrecorded samples continued to confirm the estimated maximum seasonal high water table from the area designated for the siting of the drain field is between twenty-two and twenty-six inches. Additionally, a large area set aside on the southwest section of the site serves as an adequate repair area. The topography of the southwest section depicts the highest elevations on the site and demonstrates the site drains towards the north-northeast. This southwest section provides a suitable location for both the septic tank system and the repair area.

In conclusion, certainly opposing views were presented seeking to discredit the system which DHEC ultimately approved. However, when the matter is considered as a whole, no persuasive evidence demonstrates the system will function improperly. Accordingly, with the exception of the failure of OCRM to conduct a review of the impact of the permit upon the coastal zone policies, the statutes and regulations governing the issuance of a septic tank permit to Speedway have been properly applied.

4. Conclusions of Law

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

1. DHEC is authorized to promulgate regulations relating to septic tanks. S.C. Code Ann. § 44-1-140(11)(1976).

2. Promulgated regulations govern individual waste disposal systems and the issuance of septic tank permits. 24A S.C. Code Ann. Regs. 61-56 (1976).

3 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 natural ground level to accommodate the system. 24A S.C. Code Ann. Regs. 61-56 §§ V (B), VII (B)(1) (1976).

4. Where a conventional septic tank system is not feasible, DHEC is authorized to consider an alternate system for both the initial treatment of sewage and the final treatment and disposal of sewage as long as the alternate system is within standards established by DHEC. 24A S.C. Code Ann. Regs. § 61-56 §§ VI (B)(1)-(2), VII (C)(1)-(2) (1976).

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 natural ground level to accommodate the system.

6. DHEC may establish, in its discretion, policies and standards concerning all aspects of individual sewage treatment and disposal and may allow alternate systems within acceptable standards. 24A S.C. Code Ann. Regs. 61-56 § XIII (1976).

7. Whether conventional or alternate, if a site meets the conditions for an individual sewage treatment and disposal system a permit will be granted. S.C. Code Ann. Regs. 61-56 (1976).

Having no estimated discharge of wastewater greater than 1,500 gallons per day, the system designed by Warren for Speedway is not a large flow system. S.C. Code Ann. Regs. 61-56 § V (D) (1976).

Speedway and Brown have demonstrated that the minimum site conditions set forth in Regs. 61-56 § V have been satisfied including the requirement that a 6 inch separation exist from the bottom of the trench to the maximum seasonal high water level and the requirement of the existence of an adequate repair area.

Speedway and Brown have satisfied the conditions set forth in Regs. 61-56 for the use of alternate systems for initial treatment and for final treatment and disposal at the racetrack site.

This matter is remanded to OCRM for OCRM to determine whether the septic tank permit is one which must or should be reviewed under the Coastal Management Program, and, if yes, must be so reviewed.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 31st day of October, 1997.

Columbia, South Carolina

1. The phrase "domestic waste" is undefined but when other statutes use the phrase in the context of sewage disposal, domestic waste is depicted as a descriptive component of the broader concept identified as "sewage." See § 5-31-2020(d), § 6-11-1220(d), and § 6-15-10(7) ("The term 'sewage' shall mean domestic or industrial waste requiring collection, disposal and treatment"). The phrase may require a meaning based upon the source of the discharge. For example "domestic sewage" is classified by looking to the source of the discharge at least in regards to the "domestic sewage" exception to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq. See Comite pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180 (1st Cir. 1989) (domestic sewage is that waste which comes from houses.). In dicta, Aiken Co. v. BSP Div. of Envirotech Corp., 866 F.2d 661, 664-65 (4th Cir. 1989), distinguished domestic waste from industrial waste by the source of the waste: "It was projected that about one quarter of the waste would be domestic and three quarters industrial." Our State Supreme Court looked at the source of a discharge to find that a community stated a cause of action in alleging that a county had committed a taking in failing to maintain a sewer system. See Moore v. Chesterfield County, 268 S.C. 460, 234 S.E.2d 864, (1977). ("As a result of the addition of non-domestic waste and lack of maintenance, the system became clogged."). OCRM must decide the meaning and apply that meaning to the Speedway permit.