ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The above-captioned matter comes before this tribunal pursuant to the request of
Petitioner I-77 Properties, LLC, for a contested case hearing to challenge the decision of
Respondent South Carolina Department of Health and Environmental Control (DHEC or
Department) to issue two septic tank permits, permit numbers 20-7614 and 20-7629. The
permits were issued to Respondent J. Christian Hendricks (Hendricks) for two proposed mobile
homes to be located on a 74.41-acre tract of land on Boney Road in Fairfield County, South
Carolina, which is situated adjacent to property on which Petitioner seeks to construct and
operate a construction and demolition solid waste landfill. By motions dated July 6, 2004, and
July 8, 2004, Respondent Hendricks moved to dismiss these cases contending that Petitioner
lacked standing; Respondent DHEC joined in these motions by a response filed on July 16,
2004. After conducting a motions hearing on August 19, 2004, and receiving additional briefing
on August 30, 2004, regarding the issue of whether Petitioner had a sufficient interest in the
adjoining landfill property to have standing to bring this matter, this tribunal denied
Respondents’ motions to dismiss by an Order dated September 27, 2004. In that Order, this
tribunal concluded that, based upon its contract to purchase the landfill property, Petitioner had a
sufficient equitable interest in the property such that it had standing to bring a challenge to
Hendricks’ septic tank permits for the adjacent tract. However, this tribunal further clarified in
the Order that Petitioner’s standing is based solely upon the environmental concerns it raised
regarding potential surface and ground water contamination from improperly sited septic tanks
on Hendricks’ property, and, therefore, that the sole issue properly before this tribunal is the
question of whether Hendricks’ septic tank permits were issued in compliance with the statutory
and regulatory permitting requirements for such permits.
After timely notice to the parties, a
hearing of this matter was conducted on December 2, 2004, at the South Carolina Administrative
Law Court in Columbia, South Carolina. At the close of Petitioner’s case-in-chief at the hearing,
the Department, joined by Hendricks, moved for an involuntary nonsuit against Petitioner. For
the reasons set forth below, Respondents’ motion for a nonsuit against Petitioner is hereby
granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this case, and taking into account the credibility and accuracy of the evidence, I make
the following Findings of Fact by a preponderance of the evidence:
1.On April 14, 2004, Respondent Hendricks submitted an application for a permit
to construct an individual sewage treatment and disposal system (i.e., a septic tank system) at
1255 Boney Road near the town of Ridgeway in Fairfield County, South Carolina. Hendricks
sought to construct the septic system to serve a two-bedroom mobile home that he intends to
place on a portion of his 74.41-acre tract off Boney Road. The site was evaluated for the
requested septic tank by James Maddox, an environmentalist with DHEC, on April 21, 2004.
Upon finding the site suitable for a septic tank, Mr. Maddox issued Hendricks a permit to
construct a conventional septic tank system with a 1000-gallon tank and 200 feet of drainage
trenches. This permit was designated number 20-7614 and issued on April 21, 2004. On May 7,
2004, Hendricks submitted an application to the Department for a permit to install a second
septic tank on his Boney Road property. This tank would serve a two-bedroom mobile home to
be located at 1500 Boney Road. Mr. Maddox performed a site evaluation on the second site on
May 18, 2004, and, finding it also suitable for a septic tank system, he issued a construction
permit for a 1000-gallon septic tank with a 200-foot drainfield for the second site. This permit
was designated number 20-7629 and was issued on May 18, 2004.
2.Mr. Maddox, the DHEC employee who conducted the site evaluations for, and
authorized the issuance of, the septic tank permits in question, has been employed by the
Department as an environmentalist for over twenty years. During that time, he has been
employed with the Fairfield County Health Department as the individual responsible for
evaluating applications for septic tank permits in the county. And, as he has been the only
DHEC employee with such responsibilities in Fairfield County during his employment with the
Department, he has handled virtually all of the septic tank permitting matters in Fairfield County
for the past two decades. In conducting the site evaluations for the two permits in question in
this matter, Mr. Maddox employed the same techniques and procedures he used on the other
septic tank permitting matters he has evaluated during his nearly twenty-five years of experience
with the Department.
3.The site evaluations performed by Mr. Maddox for the permits at issue consisted
essentially of two parts. First, for each site, Mr. Maddox located and evaluated the general
location for the septic tank system based upon the proposed site for Hendricks’ mobile home.
This portion of the evaluation consisted primarily of ensuring that the location for the septic tank
and its drainfield sloped appropriately away from the proposed site for the mobile home and
confirming that the tank and its drainage area are sufficiently removed from any buildings,
property lines, wells, bodies of water, or other restrictive topographical features. At each site,
Mr. Maddox was able to select a location for the proposed septic tank system that sloped away
from the site for the mobile home and that was more than five feet from any buildings or
property lines, more than fifty feet from any wells or bodies of water, and more than twenty-five
feet away from any interceptor drains or drainage ditches.
Second, Mr. Maddox took a soil boring at or near the proposed location of the tank and
its drainage trenches. This soil boring was used to determine the elevation of the maximum
seasonal high water table, the depth of any rock or other restrictive horizons, and the nature and
type of the soil. At the first site (permit number 20-7614), Mr. Maddox found clayish soils to a
depth of four feet, followed by a layer of permeable saprolitic
soils up to a depth of five feet. At
the second site (permit number 20-7629), Mr. Maddox discovered four feet of sandy, loamy soil
above a layer of clay to a depth of fifty-five inches. In neither boring did Mr. Maddox encounter
the seasonal high water table. Based upon these borings, Mr. Maddox concluded that the
seasonal high water table and any rock or other restrictive horizons in the soil lay deeper than
five feet below the surface at each site and, thus, that the sites could support conventional septic
tank systems. Further, after manipulating and visually examining the soils produced from the
borings to determine their characteristics, Mr. Maddox classified the soils in which the drainage
trenches would be situated as Class IV soils
and, based upon that classification, selected a 0.4
gpd/ft2 loading rate
for sizing the trench systems.
4.The only other witness called by Petitioner in addition to Mr. Maddox was
Michael E. Glowacz, a hydrogeologist. Mr. Glowacz is a registered professional geologist in
four states, including South Carolina, and was certified by this tribunal as an expert in
hydrogeology.
Mr. Glowacz’s testimony focused upon three main topics: a critique of Mr.
Maddox’s site evaluations, particularly with regard to his record keeping; an opinion as to what
methods he, Mr. Glowacz, would use to conduct a site evaluation for a septic tank; and a general
commentary on the nature of the soils in the Piedmont area of South Carolina. With regard to
Mr. Maddox’s site evaluations, Mr. Glowacz was concerned with Mr. Maddox’s failure to
precisely record certain information, including the slope of the site, the moisture content of the
soils produced in the boring, and the percentage of sand content in the clay soils, on the site
evaluation logs. Mr. Glowacz was also concerned that Mr. Maddox’s site evaluations and
decisions on the permit applications failed to comply in certain particulars (e.g., in his treatment
of saprolitic soils) with a set of septic tank guidelines issued by the Department in 1988. In
addition to this critique of Mr. Maddox’s site evaluations, Mr. Glowacz testified as to how he
would conduct a site evaluation for a septic tank system. In particular, he stated that he would
take four soil borings and perform four percolation (“perc”) tests in the area of the septic tank
and its drainage trenches. He also advocated testing the absorptive capabilities of the soils at the
site by using a double-ring infiltrometer. Beyond the discussion of the mechanics of evaluating
sites for septic tank systems, Mr. Glowacz described the general nature of the soils in the
Piedmont region of South Carolina, including the soils in Fairfield County. Accordingly to Mr.
Glowacz, while the depth of the water table is rarely a problem in permitting septic tanks in the
Piedmont region, the impermeability of certain layers of clays and the presence of shallow
bedrock in Piedmont soils often present restrictive horizons that make the installation of septic
tank systems problematic.
5.However, Mr. Glowacz’s testimony was called into question in a number of
respects. First, it was clear from Mr. Maddox’s testimony that, whatever the deficiencies in the
notations on his site evaluation forms, he conducted proper and thorough evaluations of the sites
for the proposed septic tanks. For example, Mr. Maddox testified that his siting of the septic
tanks on the property reflected the slope of the sites, even if the slopes were not specifically
drawn on the evaluation forms. Similarly, Mr. Maddox testified that it was his practice to
indicate the moisture content of the soils on the form only if the soils were “wet” (i.e., if, as here,
the soils were dry, he would make no notation regarding soil moisture on the form). Further,
despite his failure to provide much description of the soils on his evaluation forms, Mr. Maddox
did closely examine the physical characteristics of the soils at the sites, both visually and
manually, to determine the classification of the soils and what loading rate would be appropriate
for the soils. In sum, regardless of any failures in his record keeping or any minor
inconsistencies with Department guidelines, Mr. Maddox adequately evaluated the sites in
question under the requirements of the applicable permitting regulation, 24A S.C. Code Ann.
Regs. 61-56, before reaching his conclusion that the sites were suitable for the construction of
septic tank systems.
Second, it was inescapably evident from Mr. Glowacz’s recommended methods of site
evaluation for septic tanks that he has not kept up with the acceptable and scientifically reliable
methods of evaluating soils for septic tank systems since leaving the Department some twenty-five years ago. While Mr. Glowacz’s recommendation of conducting four soil borings for one
system is not scientifically suspect—although such repetitive testing is not required by any
statute, regulation, or DHEC policy—his recommendation that “perc” tests be used to evaluate
the property is. “Perc” tests were commonly used prior to the 1980s to evaluate the suitability of
soils for septic tank systems; however, since that time, “perc” tests have been widely discredited
as a valid method for determining whether a site is suitable for the installation of a septic tank
system. See Pet’r Ex. #1, at 3 (“Over time it became evident that satisfactory ‘perc test’ results
did not reliably predict the successful performance of septic tank systems and the value of the
‘perc test’ as the basis of system design began to be questioned. . . . Now, the ‘perc test’ is
seldom used as the basis for determining a site’s suitability.”). Mr. Glowacz’s continued reliance
upon the discredited “perc” test as a method for evaluating a site for a septic tank raises serious
concerns about the reliability of his other recommendations and opinions.
Third, and perhaps most critically, it became apparent during the course of his testimony
that Mr. Glowacz could offer no competent opinion as to whether the soils at the proposed sites
for the septic tanks are suitable for the installation of septic systems. Mr. Glowacz has neither
visited the sites for the proposed septic tanks nor conducted any analysis whatsoever of the soils
found at those sites. However, as Mr. Glowacz conceded, such on-site evaluation of the
particular site and soils in question is necessary to determine whether a site is suitable for the
installation of a septic tank system. Accordingly, as Mr. Glowacz acknowledged in his
testimony, he cannot provide any competent opinion as to the nature and characteristics of the
soils at the specific sites proposed for Hendricks’ septic tanks, and in particular, as to whether
those soils are suitable for the operation of a septic system.
Given these deficiencies, I find that Mr. Glowacz’s questionable testimony regarding the
proper methods of site evaluation for septic tanks to be of little credibility and his speculative
testimony concerning the suitability of the sites in question for septic tank systems to be of no
probative value.
6.Based upon the evidence presented by Petitioner in this matter, particularly the
testimony of Mr. Maddox and the documents he prepared during the permitting process, I find
that the Department properly determined that the proposed sites of Hendricks’ septic tanks meet
the minimum site conditions and other septic tank permitting requirements of Regulation 61-56.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
Involuntary Dismissal
At the close of Petitioner’s case, Respondent DHEC moved for an involuntary dismissal
of Petitioner’s case on the ground that Petitioner failed to establish that the septic tank permits at
issue were improperly granted. Respondent Hendricks joined in this motion. The Rules of
Procedure for the South Carolina Administrative Law Court (ALC) do not address the procedure
for dismissing a matter at the close of a petitioner’s case. However, ALC Rule 68 allows the
South Carolina Rules of Civil Procedure to be applied, where practicable, in proceedings before
the Court to resolve questions not addressed by the ALC Rules. Here, Rule 41(b) of the South
Carolina Rules of Civil Procedure provides guidance on how to resolve a motion for an
involuntary nonsuit; it states:
After the plaintiff in an action tried by the court without a jury has completed the
presentation of his evidence, the defendant, without waiving his right to offer
evidence in the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief.
The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits against the
plaintiff, the court shall make findings as provided in Rule 52(a)[,SCRCP].
Rule 41(b), SCRCP; see also Rule 52(a), SCRCP (requiring the court, in non-jury cases, to “find
the facts specially and state separately its conclusions of law thereon”). In Johnson v. J.P.
Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), the South Carolina Supreme Court further
elaborated upon the standard a court, as the trier of fact, should apply in considering a
defendant’s motion for an involuntary dismissal:
Under Rule 41 in a nonjury trial, the trial judge clearly may dismiss the action
even though the plaintiff may have established a prima facie case. Rule 41(b)
allows the judge as the trier of facts to weigh the evidence, determine the facts
and render a judgment against the plaintiff at the close of his case if justified.
Id. at 118, 417 S.E.2d at 529; see also James F. Flanagan, South Carolina Civil Procedure 348
(2d ed. 1996).
With the standard for an involuntary nonsuit under Rule 41(b) in mind, and after
careful consideration of all of the testimony and documentary evidence presented in Petitioner’s
case-in-chief, I find that this case must be dismissed, as Petitioner failed to demonstrate that the
Department improperly issued the septic tank permits in question to Hendricks.
As noted above, the sole question before the Court in this matter is whether the septic
tank permits issued by the Department to Hendricks meet the applicable statutory and regulatory
permitting requirements for such permits. Pursuant to S.C. Code Ann. § 44-1-140(11) (2002),
the Department promulgated Regulation 61-56 to regulate the design, construction, and
installation of individual sewage treatment and disposal systems, commonly referred to as septic
tank systems. See 24A S.C. Code Ann. Regs. 61-56 (1992). Among other provisions, this
regulation includes sections governing the application process for septic tank permits, the
minimum site conditions necessary for
a septic system, and the minimum size requirements for septic tanks and their drainage systems.
See Regulation 61-56(IV)-(VII). The Department based these regulatory provisions upon the
recognition that the “[s]afe treatment and disposal of all human and domestic waste is necessary
to protect the health of the individual family and the community and to prevent the occurrence of
nuisances.” Regulation 61-56(I). Consequently, the only salient contention stated by Petitioner
in this matter is its allegation that the permits issued to Hendricks do not satisfy the permitting
criteria found in Regulation 61-56, such that, if installed and put into operation, these improperly
sited septic tanks run the risk of contaminating surface and ground waters on Hendricks’
property and surrounding properties.
Burden of Proof
Petitioner, as the party challenging the propriety of the issuance of the permits, is the
moving party in this matter and, therefore, 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) (holding that the burden of proof in administrative proceedings generally rests upon the
party asserting the affirmative of an issue); 2 Am. Jur. 2d Administrative Law § 360 (1994)
(same). Accordingly, Petitioner must prove, by a preponderance of the evidence, that the septic
tank permits issued to Hendricks by the Department do not meet the requirements of Regulation
61-56, and, in particular, the minimum site conditions required under section (V) of the
regulation. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19
(1998) (holding that the standard of proof in an administrative proceeding is generally the
preponderance of the evidence).
Petitioner failed to meet this burden. The testimony and documentary evidence presented
by Petitioner do not demonstrate, by a preponderance of the evidence, that the sites selected for
Hendricks’ septic tanks are unsuitable for the installation of septic systems or that the septic tank
permits issued to Hendricks by DHEC fail to satisfy the requirements of Regulation 61-56 in any
other particular. In fact, the only credible evidence presented by Petitioner establishes a contrary
result—that Hendricks’ property is suitable for septic systems and that Hendricks’ septic tank
permits were properly issued by the Department.
Weight and Credibility of Evidence
The weight and credibility assigned to evidence presented at the hearing of a matter is
within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel.
Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a
witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the
credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990). In
weighing the testimonial and documentary evidence presented and making findings of fact
thereupon, this tribunal is guided by several general principles to determine whether a proffer of
evidence is sufficient to warrant a finding:
A verdict or finding must be based on the evidence and must be based on the facts
proved. Under this well established rule, although difficulty of proof does not
prevent the assertion of a legal right, the verdict or finding cannot rest on surmise,
speculation, or conjecture. Furthermore, a verdict of the jury or a finding of the
court cannot be supported only by guesswork. Also, it has been said that the
verdict or finding cannot rest on supposition, assumption, imagination, suspicion,
arbitrary action, whim, percentage, or conclusions that are in conflict with
undisputed fact.
The evidence on which the verdict or finding is based must be competent,
legal evidence received in the course of the trial, credible, and of probative force,
and must support every material fact. The decision should be against the party
having the burden of proof where there is no evidence, or the evidence as to a
material issue is insufficient . . . .
32A C.J.S. Evidence § 1339, at 757-58 (1996) (emphasis added); see also S.C. Code Ann. § 1-23-320(i) (Supp. 2003) (“Findings of fact shall be based exclusively on the evidence and on
matters officially noticed.”).
Expert Opinion Evidence
With regard to expert testimony, it is generally recognized that “expert opinion evidence
is to be considered or weighed by the triers of the facts like any other testimony or evidence” and
that “the triers of the facts cannot, and are not required to, arbitrarily or lightly disregard, or
capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported
finding contrary to the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the
trier of fact may give an expert’s testimony the weight he or she determines it deserves, Florence
County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992),
and may accept the testimony of one expert over that of another, S.C. Cable Television Ass’n v.
S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In weighing such expert
testimony, the general principles for determining whether evidence warrants a finding remain
applicable; accordingly, “[a]n expert’s opinion which is based on guess, surmise, or conjecture
has little evidentiary value, and expert opinion evidence lacks probative force where the
conclusions are contingent, speculative, or merely possible.” 32A C.J.S. Evidence § 730, at 87
(1996).
Analysis and Conclusion
Bearing these standards in mind and after weighing all of the testimony and each
document presented by Petitioner, I find that Petitioner’s case has no merit. From the testimony
of Mr. Maddox, the DHEC environmentalist who evaluated Hendricks’ property for the
requested septic systems, and the Department’s documents pertaining to Hendricks’ permits,
including the site evaluation forms prepared by Mr. Maddox, it is plain that the locations
selected for Hendricks’ septic tank systems meet the minimum site conditions for septic systems
under Regulation 61-56(V), particularly as related to the soil texture, depth of soil to rock, and
maximum seasonal high water table elevation at the sites, and that the components of the septic
systems as permitted meet the sizing requirements of Regulation 61-56(VI)-(VII). Further, the
expert testimony presented by Petitioner to the contrary is unpersuasive. Mr. Glowacz’s
recommendations as to the proper methods of site evaluation for septic tank systems were
largely discredited by his failure to recognize a distinction between agency guidelines and
regulatory requirements, despite the significant legal and practical differences between the two,
and by his continued recommendation that “perc” tests be used to evaluate soils for septic tanks,
despite the fact that such tests have fallen into disfavor and disuse based upon the scientific
consensus over the past twenty years that such tests are unreliable for evaluating soils for septic
tanks. In short, Mr. Glowacz’s recommendations bespoke his lack of involvement in the septic
tank permitting process for the past twenty-five years.
Moreover, Mr. Glowacz’s opinion as to the suitability of Hendricks’ property for the
installation of septic systems—to the extent he expressed such an opinion—has no probative
value. Generally, “[a]n expert may give an opinion based upon personal observations or in
answer to a properly framed hypothetical question that is based on facts supported by the
record.” State v. Weaverling, 337 S.C. 460, 474, 523 S.E.2d 787, 794 (Ct. App. 1999). Here,
Mr. Glowacz made no personal observations of the soils on Hendricks’ property; he had not
visited the property nor had he conducted any examination of soil samples taken from the
property, despite his acknowledgment that such on-site evaluation is generally necessary to
determine whether a site is suitable for a septic system. And, any hypothetical questions posed
to Mr. Glowacz about the suitability of the soils on Hendricks’ property were not based upon the
evidence in the record regarding those soils—namely, the testimony and records of Mr.
Maddox—but were premised upon Mr. Glowacz’s suppositions, speculations, and suspicions
about the nature of those soils. As such, Mr. Glowacz’s answers to those questions are not
competent evidence regarding the suitability of Hendricks’ property for the permitted septic
tanks.
Petitioner’s case in this matter rests largely upon pure speculation and mere allegation
regarding the suitability of the soils on Hendricks’ property, rather than on any demonstrable,
concrete evidence as to the nature of those soils. Such a case cannot prevail. As one former
jurist explained, “[p]roof of facts is the soul of every trial[:] [i]f there is no need to prove facts,
then there is no need for a trial.” Alex Sanders & John S. Nichols, Trial Handbook for South
Carolina Lawyers §10:1, at 402 (2d ed. 2001). In reaching a decision in this matter, I am
constrained by the record as developed by Petitioner and by the applicable law. See S.C. Code
Ann. § 1-23-320(i) (Supp. 2003). And, the record and the applicable law in this case militate
only one conclusion—that Petitioner failed to meet its burden of proof in this matter and that
Respondents’ motion for nonsuit must be granted.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that Respondents’ motion for an involuntary nonsuit
against Petitioner is GRANTED, and this matter is DISMISSED with prejudice.
AND IT IS SO ORDERED.
___________________________________
JOHN D. GEATHERS
Administrative Law Judge
December 15, 2004
Columbia, South Carolina |
