South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Roosevelt Brown et al. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Roosevelt and Viola Brown

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
00-ALJ-07-0451-CC

APPEARANCES:
Roosevelt and Viola Brown, Pro Se

M. Shawn Harmon Attorney for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before me upon Petitioners Roosevelt and Viola Brown's request for a contested case hearing to challenge Respondent South Carolina Department of Health and Environmental Control's (DHEC) denial of their application for a septic tank permit. Petitioners challenge the Department's determination that the property, located in Jasper County, South Carolina, is not suitable for installation of a conventional or experimental septic tank. The Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 et seq. (Rev. 1986 & Supp. 1999).

After notice to the parties, a hearing was conducted on October 20, 2000 at the Administrative Law Judge Division to determine (1) whether the proposed site is suitable for a conventional or experimental septic tank system, and (2) whether DHEC properly applied the applicable law in denying Petitioners' application for a septic tank permit. Based on the evidence presented, the proposed site is unsuitable for a septic tank system, and DHEC properly denied Petitioners' application.

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. Petitioners own a 0.83 acre parcel of land located on Old Charleston Road in Jasper County, South Carolina. The land was conveyed to Roosevelt Brown by his father as part of a larger parcel in 1945. In 1974, Petitioners gave their daughter approximately one acre, placed a mobile home on the lot, and obtained a septic tank permit. (1) In 1984, Roosevelt Brown was given a second acre by his mother.

2. Petitioners submitted a septic tank permit application to DHEC on February 17, 2000. The application requested permission to construct an individual sewage treatment and disposal system for the proposed house to be built by Jim Walter Homes on the 0.83 acre parcel referenced above. (2) Petitioners have spent over $2000 clearing the land and trees and hauling in fill dirt (3) and have specifically requested that DHEC approve an experimental system, such as that permitted on nearby home sites.

3. On May 23 and June 2, 2000, DHEC officials conducted site evaluations to determine whether the proposed site was suitable for a septic tank. During his May 23 evaluation, Mr. Richard Campbell of DHEC observed the slope of the land, color of the soil, and rock formations. Mr. Campbell was qualified as an expert in septic tank applications, specifically regarding soil texture and water table classification. Mr. Campbell did two soil borings at a distance of approximately 25 feet from the proposed home site that had been staked out by Petitioners. Both borings disclosed a seasonal water table less than 12" below the surface and a restrictive nonpermeable layer at 15" below the surface. (4) Suitable soil conditions were not present throughout an area large enough for the installation of a drain field. The findings indicated that the property's soil consisted of massive clay, which is virtually impermeable and thus very likely to cause wastewater back-up onto the ground surface. (5) Additionally, the seasonable high water table was less than 12" below the surface. (6) Hence, the site would not support a conventional septic tank system, an alternative system, or an experimental system. (7)

4. On June 2, 2000, Mr. Campbell again visited the site, this time with the district supervisor, Mr. Blaine Lyons, to get a second opinion and explore other options. Two additional soil borings were done, which revealed substantially the same conditions as the first borings. DHEC determined the location for soil borings based on where the actual drain field would have to be placed. (8) Mr. Lyons informed Petitioners of DHEC's findings and that no system would be available for their property by letter dated June 27, 2000. The letter also apprised them of their option to seek an administrative field review from the Columbia office.

5. On July 13, 2000, the property was reevaluated by Mr. Marshall Houston of DHEC in response to Petitioners' appeal letter. Two additional soil boring tests were conducted, and the resulting findings corresponded with those of the May 23 and June 2 evaluations. Mr. Houston found water at less than 12" and a restrictive clay horizon at 8" and 13". Mr. Houston informed Petitioners of his findings by letter dated July 18, 2000, and apprised them that because a restrictive clay layer had been found within 4-8" of the surface, a permit for an experimental system could not be issued.

6. Mr. Lyons was qualified as an expert in wastewater treatment systems. Based on a search of the DHEC database, Mr. Lyons testified that since 1990, nineteen applications for septic systems had been received from properties on the same street within one-half of a mile of the Browns' property. Of those nineteen, twelve permits were denied. Six sites have a limited area that meet the regulatory requirements, enabling them to use an experimental system. One property was permitted for an ultra shallow system.

7. Petitioners submitted no evidence or exhibits into the record, even after being advised that they bore the burden of proof. The record is unclear whether Petitioners own additional land around the home site other than that submitted in this application which could provide a suitable location for a septic tank.

CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude as a matter of law, the following:

1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-600(B) & 1-23-310 et seq. (Rev. 1986 & Supp.1999).

2. It is the public policy of the State to maintain reasonable standards of purity of the water resources of the State, consistent with the public health, safety, and welfare of its citizens. S.C. Code Ann. § 48-1-20 (Rev. 1987).

3. S.C. Code Ann. § 44-1-140(11) (1985) provides the authority for DHEC to promulgate regulations relating to septic tank systems.

4. 24A S.C. Code Ann. Regs. 61-56 (1976) is the applicable DHEC regulation governing individual waste disposal systems and the issuance of permits for those systems commonly referred to as septic tank systems.

5. Before a septic tank permit will be granted, the proposed site must meet standards set by DHEC. 24A S.C. Code Ann. Regs. 61-56(V)(A) (1976).

6. Where a conventional septic tank system is not feasible, DHEC may allow an alternate system for the treatment of sewage, as long as the alternative system is within standards established by DHEC. 24A S.C. Code Ann. Regs. 61-56(VI)(B) & (VII)(C) (1976).

7. The maximum seasonal high water table for the proposed site must be at least six inches below the bottom of the proposed soil absorption trenches or alternate system. 24A S.C. Code Ann. Regs. 61-56(V)(B) (1976).

8. In addition to the water table requirements, DHEC regulations require that the depth to rock and other restrictive horizons must be greater than one foot below the bottom of the absorption trenches or alternate system. 24A S.C. Code Ann. Regs. 61-56(V)(C) (1976). In other words, the bottom of the absorption trenches must be at least twelve inches above any restrictive soils such as clay or rock. Because evaluations of Petitioners' property reveal the existence of massive clay subsoil and other restrictive horizons and the lack of sufficient area for the installation of a drain field, the site does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.

9. It must be noted here that Petitioners are not being precluded as a technical matter from utilizing the septic tank system connected to the mobile home. However, that system is permitted only for the three bedroom mobile home based on a gallons per day capacity. Thus, the mobile home in which Petitioners' daughter currently lives would have to be disconnected in order for them to use the existing mound system for the proposed home site. Petitioners questioned why an experimental system such as was approved for the mobile home based on filling in a sand layer would not similarly work for the proposed home site. Mr. Campbell testified that the mobile home's system was initially permitted in 1974 and that the regulations were changed to disallow this type of system in 1978. In evaluating Petitioners' application for site suitability, it is fundamental that DHEC is required to apply current regulatory standards. In so doing, DHEC properly denied Petitioners' septic tank application.

10. Where an expert's testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997). The trier of fact is not compelled to accept an expert's testimony, but may give it the weight he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992); Berkeley Electric Coop. v. S.C. Pub. Service Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991). He may also accept one expert's testimony over that of another. S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

11. In reaching a decision in this matter, I am constrained by the record of evidence as developed by the opposing parties and by the applicable law. S.C. Code Ann. § 1-23-320(I) (Supp. 1998). This decision was rendered impartially, as a judge "ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss." WILLIAM S. McFEELEY, FREDERICK DOUGLASS 318 (1991); Rule 501, S.C. App. Ct. Rules, Canon 3 (1998).

12. The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or commission authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the agency from which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp. 1998). Hence, a party wishing to file an appeal must do so with the agency from which the case originated. On appeal, the scope of review is limited as follows:

[t]he scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380. This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:



a. in violation of constitutional or statutory provisions;

b. in excess of the statutory authority of the agency;

c. made upon unlawful procedure;

d. affected by other error of law;

e. clearly erroneous in view of the reliable, probative and substantial

evidence on the whole record; or

f. arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.



JEAN H. TOAL, SHAHIN VAFAI & ROBERT A. MUCKENFUSS, APPELLATE PRACTICE IN SOUTH CAROLINA 56-57 (1999), citing, S.C. Code Ann. § 1-23-610(D) (Supp. 1998) (emphasis added).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the septic tank permit application of Petitioners Roosevelt and Viola Brown is DENIED. Petitioners may wish to resubmit their septic tank permit application if they have additional land which could provide a suitable location for a septic tank.

AND IT IS SO ORDERED.



___________________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

November 6, 2000

Columbia, South Carolina

1. The record is unclear whether the Browns or their daughter actually own the mobile home and its septic permit.

2. The proposed home site is not located on the plat submitted to DHEC in the application as being owned by the Browns. See Respondent's Exhibit 11. During questioning of DHEC employee Richard Campbell, Mrs. Brown commented that they owned "3 to 4 acres" with "more further back." Any information pertaining to the extent of the property owned falls outside the record. Thus, the record is unclear whether additional land exists which would be suitable for installing a septic system. Although DHEC is limited on appeal to examining the property submitted, DHEC officials initially sampled areas around the proposed home site. Further, DHEC officials did visually inspect the surrounding land on each survey visit.

3. Mrs. Brown's opening statement was unclear whether this was undertaken on advise of the home builder, city officials she had consulted, friends, or DHEC officials. Mrs. Brown stated in her opening statement that city officials had found no problems which would preclude the installation of a septic system in this soil. However, the Browns proffered no witnesses or testimony. Thus, any such comments falls outside the record and cannot be considered by this tribunal.

4. No restrictive nonpermeable layer can be within 18" of the surface. The regulation provides that any such layer must be at least 12" below the bottom of the absorption trench. Because the trench is 6", DHEC measures for 18" below the surface for permitting purposes.

5. The restrictive nonpermeable layer is determined by classes of soils based on DHEC standards. Mr. Campbell testified that DHEC is not allowed under regulations to permit any type of septic system in a Class 4 restrictive layer, specifically clay. The soil on the Browns' property was determined to be both Class 4 and 5. The reason for the regulatory provision which precludes permitting a system having an impermeable layer within 18" is because water will not pass through this soil as it would through sandy soil. This greatly increases the likelihood of the septic system malfunctioning by "weeping" out of the side.

6. The reason for the regulatory requirement of a minimum 12" distance below the surface to the seasonal high water table is to avoid groundwater contamination. The most limited experimental system available is an "6-9" ultra shallow system," which still requires a minimum 12" distance below the surface to the seasonable high water table under the regulations. This system is rare and requires more land mass.

7. In response to questions from Mr. and Mrs. Brown, Mr. Campbell testified that no experimental system could be permitted for this property because it would still have to meet at least one of the two regulatory requirements to qualify for any system. Systems that require digging out or filling in dirt, such as were used for the mobile home's septic system, would not be permitted due to changes in the DHEC regulations in 1978. Further, Mr. Campbell testified that because the mobile home was permitted under the old regulations, that system could not be expanded to accommodate the additional sewage from the proposed home site.

8. Borings were not done to the left of the proposed home site because there was not space to install the proposed septic system (225-300 linear feet) within the property lines (110 feet), as determined by the plat submitted and irons found. Borings were also not done in the wooded area near the proposed home site, since the Browns did not represent that they owned that property. The dirt road dissecting the property precludes placement of a septic system between the two borings done on July 13, 2000.


Brown Bldg.

 

 

 

 

 

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