ORDERS:
FINAL ORDER AND DECISION
On September 7, 2004, Respondent DHEC [DHEC]
issued to Respondent Rudolph Meggett [Meggett] a permit to construct a septic
tank on his property located at 8030 Maxie Road on Edisto Island, South Carolina. This permit [number 2004060031] granted to Meggett the right to construct
an experimental septic tank system on his property.
Petitioner Callie White [White], an adjacent
property owner, objected to DHEC’s granting the permit, essentially because of
the potential harm to her property. Following her comments, DHEC made several
modifications to the permit.
After notice to all parties, a hearing was held
on October 18, 2005 at the Administrative Law Court in Columbia, South Carolina. Based on a review of all the evidence, I find by a preponderance of the
evidence that DHEC properly granted the permit.
FINDINGS OF FACT
1. On September 7, 2004, Respondent DHEC issued
to Meggett a permit to construct a septic tank on his property located at 8030 Maxie Road on Edisto Island, South Carolina. Mr. Meggett was born on that property,
and plans to place a mobile home there for his residence. The permit [Number
2004060031] granted to Megget the right to construct an experimental septic
tank system on his property.
2. On September 27, 2004, Petitioner Callie
White [White], who owns the property adjacent to Meggett’s, wrote a letter to
DHEC objecting to the granting of the Permit. She alleged two basic errors:
(1) that the site plan was incomplete and the septic system was too large for
the dimensions of the lot; and (2) that the standing water on Meggett’s lot
could cause contamination of ground and surface water on her property and
potentially contaminate her well. [DHEC Exhibit #4]
3. On September 28, 2004, DHEC acknowledged
receipt of White’s letter and informed her that Mark Mariner would make a visit
to the Meggett site. Two days later, Mr. Mariner made a site visit. White met
him at the site. Mariner testified that on September 30, 2004, the water level
was at its seasonal high.
4. Based on the report he submitted after the
site visit [DHEC Exhibit #5], Mariner wrote a letter to White dated October 29,
2004 [DHEC Exhibit #10] In that letter, he reported to White that based on his
evaluation of the site, an Experimental Fill System (DHEC Program Code
362/431) was appropriate for Meggett’s property. That system is appropriate
for sites where the seasonal high water table is less than six inches below the
ground surface in the permitted area, and where the soil texture is no greater
than a Class II in the initial eighteen inches.
5. White testified regarding the presence of
extensive wetlands on her property for six months of each year. She has a
septic tank system on her property. At the Hearing, she testified that she is
concerned that because of their placement, the tanks on Meggett’s property will
be flooded.
6. Petitioner submitted surveys, tax maps, and
sketches of the proposed system into the Record. [Petitioner’s Exhibits
3-9]
7. DHEC witness Matt Ruff, the
on-site wastewater supervisor for Charleston County, testified that his first
visit to Meggett’s site was undocumented, but that he returned to the site when
the original application for a conventional septic system was denied. Ruff met
with White at the site. 56 feet separate White’s well from the proposed septic
tank system.
8. Initial soil borings showed that
the soil on Meggett’s property was a Sandy Loam, a Class II soil type. The
seasonal saturation was less than 12 inches; thus it could not be permitted for
a conventional system. Ruff further testified that the site did meet the
criteria for a “431”system in the “362” program code, which, at that time, was
an “Experimental” system.
9. DHEC Witness Ben Bozard , who
worked for DHEC for 36 years, testified that he has reviewed thousands of
septic tank permits. As District Supervisor, he was the last person in the
review chain to review a site. Mr. Bozard noted that for a “431”, or “mounded
fill” system to be approved, the water table can be at ground level, as long as
the soil is at least a Class II down to 18 inches. Mr. Meggett’s property
satisfied those requirements.
10. Mr. Bozard testified that in
all the “431” permits DHEC has issued, he has never been informed of a failure.
In fact, since Meggett’s permit was issued, the categorization of a “431”
systems as “Experimental” has been upgraded to an “Alternative System.” He
testified that he believes White’s property will be protected. I find Mr.
Bozard to be a very knowledgeable and credible witness.
11. DHEC Witness Stuart Crosby, the
Regional Supervisor for Charleston, Berkeley, and Dorchester Counties, has spent the last 14 years in wastewater supervision. He has evaluated thousands of
septic system applications. Mr. Crosby testified that Meggett’s site has been
examined more thoroughly than any other potential permit site in his entire 20
years with DHEC. The permit is consistent with Regulation 61-56 and the
standards promulgated thereunder. The permit does not pose any greater health
risk than any other septic system permitted by DHEC.
11. I find Mr. Crosby to be a very
credible witness whose testimony is supported by the data in the DHEC file and
other testimony at the Hearing.
12. DHEC Witness Leonard Gordon testified
that he also has reviewed thousands of DHEC septic system permit applications.
He testified that DHEC has been using the same standards since the early
1980’s. DHEC is attempting to incorporate all the standards into Regulations,
and plans to submit them to the General Assembly in 2007.
13. In July, 2005, DHEC adopted
new Standards, which classify the “431” system approved for Meggett’s property
as an “Alternative System.”
14. Michael Kachuck, a building
contractor for seventeen years, testified for White. He stated that based on
his contracting experience he did not see how the system would fit on Meggett’s
property with the required swales, tanks and road access to the residence. In
addition, he was concerned that the proposal for Meggett’s lot kept changing.
Although Mr. Kachuck was a very credible witness, the fact remains that his
area of expertise is in specialty contracting, not septic systems. He was
testifying as a lay witness. The breadth and depth of the knowledge of the
DHEC witnesses, and their expertise with septic systems, necessitates that
their testimony be given more weight.
I find that DHEC made every effort
to be responsive to White’s concerns and responded promptly and completely to
her FOIA requests. Several members of DHEC’s senior staff in the Charleston area met with White and re-visited the Meggett site. After DHEC conducted a
thorough investigation of the site, it reconfigured and downsized the septic
system.
CONCLUSIONS OF LAW
1. The ALC has subject matter jurisdiction
pursuant to S. C. Code Ann. §§ 1-23-380 et. seq. (1986 and Supp. 2004) and 25
S. C. Code Ann. Regs. 61-72 (Supp. 2004).
2. The statutory and regulatory
provisions giving rise to the controversy are S. C. Code Ann. §44-1-140 (11)
(2004) and the Individual Sewage Treatment and Disposal Systems regulation, 24A
S. C. Code Ann. Reg. 61-56 (1976).
3. In weighing
the evidence and deciding a contested case on the merits, this Court must make
findings of fact and conclusions of law by a preponderance of the evidence. Anonymous
(M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17
(1998). Furthermore, the burden of proof rests upon the Petitioner in this
case. Id.
4. The decisions of an Agency with
respect to interpreting its own Regulations are entitled to great deference. “The
construction of a statute by the agency charged with its administration will be
accorded the most respectful consideration and will not be overruled absent
compelling reasons.” Dunton v. South Carolina Bd. Of Examiners in
Optometry, 291 SC 221, 223, 353 S.E.2d 132, 133 (1987). Brown v. SC DHEC,
____ SC ____, 560 S.E.2d 410 (2002).
5. Based on a preponderance of the
evidence, I conclude that DHEC properly issued Permit No. 2004060031 to
Meggett.
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews,
SC
Administrative Law Judge
December 30, 2005
Columbia, SC |
