ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Michael Newton (Newton) brings this contested case to challenge a decision by the South
Carolina Department of Health and Environmental Control (DHEC) denying Newton=s
application for an individual sewage treatment and disposal system, i.e. a septic tank system.
Jurisdiction vests in the Administrative Law Court under S.C. Code Ann.'' 44-1-50 and 1-23-600(B) (Supp. 2003).
II. Issues
Two issues are raised here. Given the soil conditions of Newton's property located at lot 92,
Crest View Drive, Seneca, South Carolina, Tax Map number 40-14-39-420, should a septic tank
permit be issued? Second, since DHEC has granted permits to other lots in the same
subdivision, does Equal Protection require granting a septic tank permit to Newton?
III. Analysis
A. Soil Conditions
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
On October 18, 2001, Southern Homes and Remodeling (the name of Newton=s
construction business) filed an application for a septic tank permit to be used for a
proposed structure having three bedrooms. The lot upon which the permit is to be used is
lot number 92 as shown on a 1975 plat of Woodland Acres, a subdivision near Seneca,
South Carolina.
At the time of the application in 2001, the lot was naturally wooded and was a drainage
lot which slopped from right to left toward a gully. The slope was moderately steep.
After receiving the application, the Appalachia 1 Health District office for Oconee
County visited the property and determined that additional information was needed
before a decision could be made on the application. However, while additional
information was requested during 2001, Newton did not provide the information needed.
Rather, not until March 2004 did Newton make an inquiry on the status of the permit.
In March 2004, Newton discussed the permit request with the Appalachia 1 Health
District office for Oconee County. After the contact, Newton concluded that a decision
on the permit could be made if the lot were properly graded. Acting on that belief,
Newton graded the lot by making steep cuts into the lot=s dirt bank and using the material
from the bank as fill dirt across the rest of the lot. As a result, fill dirt was spread across
a substantial portion of the lot, and the gully on the lot was essentially eliminated.
After the grading, Newton made an inquiry into the status of the application. As a result,
DHEC officials visited the lot on April 16, 2004. They observed that the lot had been
substantially changed from its original condition in 2001. In fact, drill borings establish
that the soil across much of the lot is comprised of fill dirt occupying the first 14 inches
of depth beneath the surface of the lot.
DHEC officials ultimately determined the lot was unsuitable for a septic tank permit
since an insufficient area of proper soil existed for the required drain field. The required
footage for an appropriate drain field on lot 92 is approximately 200 feet to 215 feet.
However, only 95 feet to 110 feet are available.
Fill dirt will not provide the required footage since such soil is unacceptable for a drain
field due to the material being clayey in consistency. Further, fill dirt lacks the
absorption qualities of undisturbed natural soil and has a tendency to remain saturated
with moisture. Accordingly, such soil is not conducive to the proper distribution of
waste material generated by a septic tank and drain field.
DHEC officials visited the lot again on April 27, 2004, and again found an inadequate
area for a drain field. DHEC officials visited the lot for the third time on May 4, 2004
and again concluded the lot did not have a sufficient area for a drain field. Finally, a
fourth visit by DHEC was made on June 24, 2004 with the conclusion again being that
insufficient area exists for a drain field.
2. Conclusions of Law
DHEC is authorized to promulgate regulations relating to septic tanks. S.C. Code Ann. '
44-1-140 (11). Those regulations require that before a permit will be granted, the site
must meet the standards set by DHEC. 24A S.C. Code Ann. Regs. ' 61-56 (V) (A). Lot
92 does not meet the required standards.
Under the regulations, 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. See 24A S.C. Code Ann. Regs. ' 61-56 (V)(B) &
(VII)(B)(1)(1976) (9 inches of soil over 14 inches of aggregate, both of which must be 6
inches above the seasonal high water table). Further, where a conventional septic tank
system is not feasible, DHEC may allow an alternative system for both the initial
treatment of sewage and the final treatment and disposal of sewage as long as the
alternative system is within standards established by DHEC. 24A S.C. Code Ann. Regs. '
61-56 (VI)(B)(1), (2) & (VII)(C)(1),(2) (1976). For example, a modified conventional
septic tank system may be allowed if the maximum seasonal high water table for the
proposed site is at least twenty-one inches (21") below the natural ground level. This
system relies upon 9 inches of aggregate plus 6 inches of soil plus the 6 inches needed
above the seasonal high water table.
Simply put, here, due to the extensive grading and the presence of fill dirt over a
substantial portion of the lot, an inadequate amount of undisturbed land remains for
installation of the required drain lines. For the proposed three bedroom house, a range of
200 to 215 feet of trenches are required. Here, the extensive grading leaves only 95 to
110 feet available. Thus, the lot cannot qualify for a septic tank permit.
B. Equal Protection
Newton asserts that numerous lots in the subdivision have been granted septic tank
permits and that his lot is no different from those lots having already received permits.
Thus, Newton argues that his rights to equal protection are violated if others are granted a
permit but he is not. DHEC argues that Newton's lot is not the same as other lots in the
subdivision.
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
The subdivision here under review was begun in the 1970's. Most of the lots in the
subdivision have been built on with septic tank permits having been issued over the
years. However, lot 92 is a significantly sloped lot for which extensive grading has been
necessary to eliminate a gully across the lot. Moreover, the grading has resulted in a
sizable amount of clayey fill dirt over much of the lot. Accordingly, lot 92 has a
different topography and a higher concentration of clayey material than nearby lots.
2. Conclusions of Law
Where the circumstances surrounding the application for a permit by one party are
similar to those of the party's neighbors and where the existence of the party's permit will
not create an effect distinguishable from that caused by a neighbor's permit, the denial of
a permit to the party violates equal protection. Weaver v. Coastal Council, 309 S.C. 368,
423 S.E.2d 340 (S.C. 1992). Here, however, because differences exist, equal protection is
not violated.
The existence of Newton's permit will create an effect distinguishable from that caused
by permits issued to the neighbors since meaningful differences exist between Newton's
lot and those of nearby neighbors. See Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742,
60 L.Ed.2d 269 (1979) ("differences in classification are not unconstitutional unless
they... are not rationally related to a permissible state objective."). Here, the permissible
state objective is that of protecting the public health by regulating the disposal of waste.
See S.C. Code Ann. ' 48-1-100(C) ("The Department of Health and Environmental
Control is the agency of state government having jurisdiction over those matters
involving real or potential threats to the health of the people of South Carolina, including
. . . septic tanks . . . ."). That objective is rationally met by denying Newton's application
since doing so prohibits the unhealthy discharge of waste into the environment.
In this case, Newton's lot in its original condition was a significantly sloped lot for which
extensive grading was necessary to eliminate a gully across the lot. Moreover, the
grading resulted in a sizable amount of clayey fill dirt over much of the lot. In fact, after
the grading and fill dirt distribution, an insufficient amount of land remained for the
required drain field. Indeed, no persuasive evidence establishes the existence of any
other nearby lots that lacked sufficient undisturbed soils for a drain field and yet still
obtained permits.
Thus, the topography of the land and the texture of the soil on Newton’s lot give a greater
likelihood that a system failure will occur on Newton’s lot than on other lots. If such a
failure were to occur, waste material would have a high likelihood of achieving contact
with ground water so as to produce a heightened potential for depositing unprocessed
waste into the environment. Therefore, the real potential for harm to human health
distinguishes Newton's lot from other nearby lots so that a denial of Newton's permit is
not a denial of equal protection.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, the following ORDER is
issued:
The South Carolina Department of Health and Environmental Control shall deny
Newton=s application for an individual sewage treatment and disposal system, i.e. a septic
tank system for lot 92, Crest View Drive, Seneca, South Carolina, Tax Map number 40-14-39-420.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: January 4, 2005
Greenville, South Carolina |
