ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (“Division”) pursuant to a
request for a contested case hearing by James T. Hurst, Jr., (“Petitioner”), challenging the South
Carolina Department of Health and Environmental Control’s (“Department” or “DHEC”) denial of
his septic tank permit application for Tract B, a 2.4 acre tract on Tram Road, near Cades in
Williamsburg County, South Carolina (TMS# 45-194-085). The Department found the Petitioner’s
property was not suitable for a septic tank system. A hearing on this matter was held on June 23,
2003, at the offices of the South Carolina Administrative Law Judge Division.
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.The Division has personal and subject matter jurisdiction.
2.Notice of the date, time, place and nature of the hearing was timely given to all parties.
3.The property that is the subject of this contested case is Tract B, a 2.4 acre tract
located on Tram Road, near Cades in Williamsburg County, South Carolina (TMS# 45-194-085).
Petitioner purchased the vacant property on November 16, 1992, with the intent to subdivide the
property into rental spaces for mobile homes.
4.Petitioner is also the owner of Tract C, a 2.63 acre tract located near Tract B on Tram
Road near Cades in Williamsburg County, South Carolina. On October 29, 1992, Petitioner
submitted an application for a septic tank permit for Tract C, and a site evaluation was conducted on
November 4, 1992, by Mr. Warren Kellahan, an Environmental Health Supervisor for Williamsburg
County Department of Health and Environmental Control. Tract B was not evaluated at that time.
The Department subsequently found the lots on Tract C suitable for septic tanks.
5.On June 7, 1999, Petitioner submitted an application for Subdivision Approval for
Tract B, the 2.4 acre tract located on Tram Road near Cades in Williamsburg County, South
Carolina. On August 6, 1999, Mr. Warren Kellahan conducted a site evaluation on Tract B. At that
time, soil borings were taken from Tract B. After inspecting the land and evaluating the soil borings,
Mr. Kellahan acertained that the seasonal high water table was within twelve (12) inches of the soil
surface. Thus, Mr. Kellahan’s evaluation indicated that soil conditions rendered the property
unsuitable for any type of septic tank, including conventional, experimental and alternative systems.
6.On June 24, 2002, the Department issued a letter denying the septic tank permit for
Tract B. By letter dated July 9, 2002, Petitioner appealed the Department’s decision to deny the
septic tank permit.
7.On July 11, 2002, Petitioner was notified that an administrative review and site
evaluation would be conducted to determine if the property was suitable for the installation of any
type of conventional, modified, alternative, or experimental septic tank system.
8.On July 17, 2002, a site evaluation was performed by Mr. Reid Houston, an Appeals
Officer with the Department of Health and Environmental Control’s central office, who was
accompanied by Mr. Warren Kellahan. This evaluation revealed a seasonal high water table of less
than twelve (12) inches below the natural ground surface and a heavy clay layer eight (8) inches to
the surface, reaffirming the previous findings that the location was not suitable for any type of on-site
wastewater treatment and disposal system.
9.At the Petitioner’s request, the Department installed seasonal high water table
monitoring devices on Tract B and monitored from December 10, 2002, to March 27, 2003.
Petitioner’s initial request for monitoring was made in 1999, however, due to a drought, the
Department was unable to begin monitoring until December 10, 2002. The results of the monitoring
study confirmed the findings of the previous soil evaluation, revealing that the site has a seasonal high
water table within twelve (12) inches and a tight clay soil approximately fifteen (15) inches below the
natural soil surface. These results failed to meet the minimum requirements set forth in 24A S.C.
Code Ann. Reg 61-56, thus rendering the site unsuitable for any type of septic tank system.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1.Pursuant to the Administrative Procedures Act, the Administrative Law Judge
Division has jurisdiction to conduct contested case hearings concerning matters governing septic
tanks. See S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2002).
2.In weighing the evidence and deciding a contested case on the merits, the
Administrative Law Judge 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.
3.S.C. Code Ann. § 44-1-140(11) (2002) provides the authority for DHEC to propose
regulations relating to septic tank systems. Pursuant to that authority, 24A S.C. Code Ann. Regs.
61-56 (1976) was promulgated which governs individual waste disposal systems and the issuance of
permits for those systems commonly referred to as septic tank systems.
4. Before a septic tank permit will be granted, the proposed site must meet minimum
standards set by DHEC. 24A S.C. Code Ann. Regs. 61-56 (V)(A) (1976).
5.24A S.C. Code Ann. Regs. 61-56 (V)(B) (1976) provides the 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. The Department found the site’s seasonal high water table
to be within twelve (12) inches of the soil surface.
6. 24A S.C. Code Ann. Regs. 61-56 (V)(C) (1976) requires that the depth to rock and
other restrictive horizons must be greater than one (1) foot below the bottom of the absorption
trenches or alternate system. DHEC’s evaluations of the Petitioner’s property revealed the existence
of a heavy clay layer at relatively shallow depths from eight (8) to fifteen (15) inches.
Based on the evidence presented in this case, Petitioner’s property does not meet the
minimum site conditions for an individual sewage treatment and disposal system under 24A S.C.
Code Ann. Regs. 61-56 (1976). Therefore, this permit must be denied.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the septic tank permit application of Petitioner James T.
Hurst, Jr. for Tract B, a 2.4 acre tract located on Tram Road, near Cades in Williamsburg County,
South Carolina (TMS# 45-194-085), is denied.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
July 24, 2003
Columbia, South Carolina |
