ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD or Division) upon
request of the Petitioners for an administrative hearing pursuant to the South Carolina
Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (1986 and Supp. 2000).
The Petitioners have sought review of the Department of Health and Environmental Control's
(DHEC or Department) issuance of the Beaverdam Creek Interceptor Phase IA Permit (Permit
No. 25,912-WW) and Phase II Permit (Permit No. 25,992-WW) (collectively, Permits) to
Anderson County Environmental Services Division (Anderson ESD) and Anderson County
(County) (collectively, Anderson Respondents) for construction of sewer lines to tie into two
existing wastewater treatment facilities. The Petitioners allege that DHEC's issuance of the
Permits was in violation of 25 S.C. Code Ann. Regs. 61-67 (Supp. 2000) (Standards for
Wastewater Facility Construction), the requirements of 25 S.C. Code Ann. Regs. 61-68 (Supp.
2000) (Water Classifications and Standards), and the requirements of 25A S.C. Code Ann. Regs.
61-101 (Supp. 2000) (Water Quality Certification § 401 of the Clean Water Act, 33 U.S.C. §
1341 (the Federal Clean Water Act)). DHEC and Anderson Respondents contend that DHEC
Regulation 61-67 and 23 S.C. Code Ann. Regs. 19-450 (Supp. 2000) (Permits for Construction
in Navigable Waters) (to the extent it is applicable under Regulation 61-67) are the applicable
regulations governing the issuance of the wastewater construction Permits at issue here and that
Regulations 61-68 and 61-101 are not the governing regulations. The Respondents seek to have
the Division uphold DHEC's issuance of the Permits. A hearing was held before me on April 23
and 24, 2001, at the offices of the Division in Columbia, South Carolina.
At the beginning of the hearing, Anderson Respondents made a Motion in Limine, joined in by
DHEC, for an order to exclude any evidence regarding the effect on the aquatic ecosystem, any
feasible alternative, the requirements of Regulation 61-68, and the requirements of Regulation
61-101, stormwater and sediment issues, except to the extent that such evidence is relevant to
DHEC's issuance of the Permits for the Beaverdam Creek Sewer Project pursuant to S.C. Code
Ann. § 48-1-110 (1987 and Supp. 2000) of the South Carolina Pollution Control Act, (1) and
Regulations 61-67 and 19-450 (to the extent Regulation 19-450 is applicable under Regulation
61-67). During opening argument, the Petitioners conceded that they would not make
substantive arguments concerning the applicability of Regulation 61-101, the § 401 Water
Quality Certification requirements to DHEC's issuance of the Permits. I granted the
Respondents' Motion in Limine regarding the issues concerning Regulation 61-68 as applied to
the Permits issued under Regulation 61-67.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing in
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:
General Findings
1. Notice of the date, time, place and subject-matter of the hearing was properly
given to all the parties.
2. The Petitioners object to DHEC's issuance of Permit No. 25,912-WW for Phase IA of the
Beaverdam Creek Sewer Project (Project) on September 26, 2000, and Permit No. 25,992-WW
for Phase II issued on October 25, 2000. The Project is a multiple-phase project approved by
Anderson County Council as part of Anderson County's comprehensive Ten Year Plan to
provide sanitary sewer service to the Beaverdam Creek Basin (Basin). This area is near the
rapidly developing Interstate 85 corridor, including the intersection of Interstate 85 and State
Highway 81.
Phase IA is a gravity interceptor sewer line. (2) It begins at Alliance Industrial Park located near
the intersection of Interstate 85 and State Highway 81, follows along the tributary Beaverdam
Creek to a point near the Anderson Reservoir, flows around the Reservoir, and then back along
Beaverdam Creek to a point just north of Long Road where a pump station will be constructed. (3) Phase IA will reroute the existing flow that is now being pumped by two existing pump stations
to the Six and Twenty Wastewater Treatment Plant.
Phase II is also a gravity interceptor sewer line. The Phase IA line will connect to the Phase II
sewer line. Phase II will parallel Beaverdam Creek down to a point at Cobb's Glen Golf Course
development. It crosses the Rocky River at Cobb's Glen and parallels the Rocky River
approximately to Highway 29 where it will connect to an existing sewer line of the City of
Anderson (City). The Phase II line will carry the flow to the City's Rocky River Wastewater
Treatment Plant (RRWTP) in which the County has previously purchased capacity. (4) Construction of Phase II will allow the County to take advantage of the natural flow of the
drainage basin to the Rocky River Plant and to access the treatment capacity which it owns at
Rocky River. Furthermore, Phase II involves construction in State navigable waters. Therefore,
the construction permit contains thirteen special conditions applying to construction in
navigable waters.
3. The design of Phase IA and Phase II meets the applicable engineering design requirements of
Regulation 61-67 for wastewater construction permits. In fact, Mr. McCoy, the Petitioners'
expert witness, testified that the engineering design of the Permits is "generally" in conformance
with the applicable engineering design requirements of Regulation 61-67, with the exception of
the minimum flow requirements in Section 300(B)(3). Furthermore, Mr. McCoy acknowledged
that if the lines scoured at peak flow, the design would meet the requirements of Section
300(B)(3).
Construction Permit Packages
4. Respondent Anderson ESD submitted detailed construction permit application packages
(Construction Packages) for both Phase IA and Phase II. Both Construction Packages were
prepared by the County's engineering consultant, B. P. Barber & Associates, Inc., and were
signed by James M. Longshore, P.E., a registered professional engineer in the State of South
Carolina, as required by Section 100(E)(2) of Regulation 61-67. Furthermore, the Construction
Packages for Phase IA and Phase II contained all of the information required by Section 100(E)
to be submitted to the Department, including a letter as required by Section 100(E)(11) from
Anderson County, the owner of the Project, stating its willingness to be responsible for operating
and maintaining the project.
208 Plan
5. A sewer line construction permit may not be issued if it conflicts with the applicable 208
Water Quality Management Plan (208 Plan). See 25 S.C. Code Ann. Regs. 61-67.100(E)(8)
(Supp. 2000). A 208 Plan is a broad water quality management plan prepared at a regional or
multi-county level. In South Carolina, 208 Plans are generally prepared by Councils of
Government. In the case of Anderson County, DHEC has a Memorandum of Agreement with
the Appalachian Council of Governments (ACOG) to carry out the 208 planning function and to
certify individual wastewater projects under Regulation 61-67. When a project application is
submitted, DHEC staff sends a memorandum to ACOG requesting a certification determination
by ACOG. In the present case, DHEC followed that procedure and received written
determinations from ACOG that both Phase IA and Phase II were consistent with the
"Appalachian Council of Governments Regional Water Quality Management Plan," the 208 Plan
that is applicable to Anderson County.
Average Flow Projections
6. The Petitioners contend that the Permits are not in compliance with 25 S.C. Code Ann. Regs.
61-67.300(A)(10) (Supp. 2000). The Petitioners' primary concern appears to be with the
underlying population figures developed by Anderson County to which the unit contributory
loadings in Appendix A of Regulation 61-67 were applied. Mr. McCoy testified that based on
his professional opinion and familiarity with the Basin, the County's population projections for
the year 2020, utilizing an estimate of two persons per acre, were too high. The Petitioners
contend that, as a result of overestimating the projected population in 2020, Anderson
Respondents sized the sewer lines larger than necessary. Mr. McCoy testified that the line size
could "probably" be smaller but admitted that he had not made any specific calculations that
would determine whether or not the projected flow could be sufficiently lowered to drop the line
size.
Regulation 61-67.300(A)(10) requires that the average flow projections for all wastewater
facilities shall be based on the type of facility to be served, as stated in Appendix A of
Regulation 61-67, unless otherwise justified by the applicant and approved by DHEC. (5) Appendix A sets forth the unit contributory loadings to all domestic wastewater treatment
facilities. It is a common engineering practice to use planning information from a local public
agency to determine population figures. To arrive at projected population figures for 2020, Mr.
Longshore consulted with the Anderson County Planning Division on its projected population
figures for the Basin in 2020. (6) The Basin was divided into sub-basins and then the sub-basins
were converted into a person-per-acre figure. Anderson Respondents then utilized the DHEC
guidelines of 100 gallons per person per day for domestic waste to determine the projected flow
rates.
The Beaverdam Creek area is a rapidly growing section of Anderson County and Anderson
County is a rapidly growing part of the upstate. Therefore, the projection of two persons per
acre is a conservative projection in light of the growth in the Interstate 85 corridor.
Additionally, the methodology used in selecting the sub-basins and projecting two persons per
acre properly contemplated areas within the Basin that cannot be developed (such as wetlands,
floodplains, roadways, etc). Therefore, I find that the flow calculations for both Phase IA and
Phase II meet DHEC requirements.
Furthermore, Regulation 61-67 requires that peak flow projections be at least two and one-half
times greater than average flow projections. 25 S.C. Code Ann. Regs. 61-67.300(A)(11) (Supp.
2000). Sizing a pipe too small would be a basis for denying a permit under that section because
of concerns with backups and overflow. However, as a practical matter, reduction of the pipes
one to two sizes in this case would have no material impact on the construction effort that would
be required to implement the Project. More importantly, further reductions in size would have
little impact on the performance of the system. Therefore, the construction permits should not be
denied because a pipe may be slightly larger than necessary.
Zero Flow Volume
7. The Petitioners also contend that the proposed volume of zero flow in the ACOG 208 Plan
certifications for Phase IA and Phase II is inaccurate. However, those representations are indeed
accurate because Phase IA will not transport any new wastewater but rather will replace two
existing pump stations that serve the Alliance Industrial Park and the commercial development
near the Interstate 85 and Highway 81 interchange. DHEC typically regards situations where no
new flow is being added as zero flow. Similarly, Phase II certification properly reflected zero
flow because no new flow is being added as the Phase IA line will connect directly with the
Phase II line. Furthermore, it is not unusual for an interceptor line to be designed for zero flow
because interceptor lines are the main "arteries" of the sewer system and there would be future
permits that would contribute to the flow. Any new flows other than an individual service
connection will require a permit from DHEC.
Minimum Flow Rate
8. The Petitioners also contend that the Permits are not in compliance with the requirements of
25 S.C. Code Ann. Regs. 61-67.300(B)(3) (Supp. 2000) which provides, in relevant part, that
"all gravity sewers shall be designed and constructed to give mean velocities, when flowing full,
of not less than two (2) feet per second, based on Manning's formula using an 'n' value of
thirteen thousandths (0.013)." The Petitioners contend that the consequence of not meeting the
minimum flow rate would be failure to scour solids in the lines, possibly causing blockages
which could in turn cause leakage problems. To that end, Mr. McCoy testified that the proposed
sewer lines would probably not meet the two feet per second minimum flow requirement during
startup. However, he also testified that he had not made any calculations on that point.
The historic background of the requirement for two feet per second minimum flow derived from
when storm sewers and sanitary sewers flowed in the same pipe. The two feet per second
minimum flow requirement was necessary to keep debris, like rocks and gravel, flushed out of
the system. However, from an engineering standpoint, sewage solids do not require a velocity of
two feet per second to move through the line. Thus, for sewage solids, the design requirement of
two feet per second minimum flow is a conservative one.
Furthermore, Section 300(B)(3) is a minimum flow design requirement that must be met when
the pipe is "flowing full." Moreover, a lesser velocity of flow does not pose a problem with
proper scouring in this Project because Phase IA will pick up two existing pump stations. As a
result, there will be sufficient volume to move wastewater through the pipes and flush the line.
Additionally, Phase IA will provide the initial flow into Phase II. Most of the lines in Phases IA
and II are larger lines. Since larger lines are less susceptible to blockages, the sewer lines will
be functional even if they never reach full capacity. For instance, Mr. Longshore, gave the
example of subdivision collector systems that are fully functional though the sewer line from
one or two houses at the end of a street will never flow full.
Infiltration and Exfiltration
9. The Petitioners contend that the design of the sewage lines will allow substantial leakage of
untreated sewage wastewater into the environment, thereby creating an injury or nuisance for the
Petitioners. Section 300(B)(11) provides, in relevant part, that "[a]ll gravity sewer lines shall be
designed and specified such that the leakage outward (exfiltration) or inward (infiltration) shall
not exceed two hundred (200) gallons per inch of pipe diameter per mile per day." 25 S.C. Code
Ann. Regs. 61-67.300(B)(11) (Supp. 2000). The Petitioners' only evidence concerning this
design flaw was provided by Mr. McCoy. He testified that though he had not done any
calculations to determine how much wastewater would be permitted to leak, the circumstances
allowing leakage included problems with pipe joints.
To the contrary, with regard to infiltration and exfiltration, Mr. Longshore testified that he
expected the sewer lines in Phases IA and II to have minimal infiltration and exfiltration because
of the way the pipelines would be constructed and the materials that would be used. The PVC
pipe joints used in the Project will not be susceptible to infiltration due to the advances in
technology for joining pipes, including PVC and ductile iron pipes. Also, the joints are not likely
to allow infiltration except when there is a "roll gasket" which does not seal properly.
Furthermore, after the construction of the pipeline is finished, the contractor will test the system
to verify the integrity of the line and to identify any improperly sealed roll gaskets so that they
may be repaired.
Right-of-way
10. The Petitioners contend that a 25-foot construction right-of-way will not be adequate.
Specifically, Mr. McCoy questioned whether a 25-foot right-of-way would be wide enough for
the equipment bringing in the construction materials. However, though there is a 25-foot
permanent easement, the construction right-of-way will in fact be 50 feet.
Type of Waste Water
11. The Petitioners claim that the statement in the ACOG 208 Plan certifications for Phases IA
and II that the proposed type of waste will be domestic is inaccurate. They argue that, depending
on the type of clients locating in the Alliance Industrial Park, there may be some industrial
process wastewater. However, domestic waste is an accurate representation of the flow that will
be picked up from the existing pump stations. Furthermore, the waste from the commercial
development near Interstate 85 and Highway 81 is also considered domestic waste. The
industries in the area are considered "light" industries that do not produce industrial waste
coming under the Anderson County industrial pretreatment program.
Public Hearing
12. In their Prehearing Statement, the Petitioners contend that DHEC did not meet "the public
participation requirements, including notice and an opportunity to be heard [as] required by
law." The Petitioners have not offered evidence that their rights have been substantially
prejudiced by DHEC's not holding a public hearing or meeting with the Petitioners prior to the
issuance of the Permits. The Petitioners had notice of the issuance of the Permits on November
20, 2000 when DHEC informed them of their issuance. The Petitioners have had full
opportunity to be heard in this administrative hearing and to present their concerns for
administrative review.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
General Conclusions
1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to
the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986
and Supp. 2000).
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). The burden of proof rests upon the Petitioners in this case. Id. Therefore, the
Petitioners have the burden of proving by a preponderance of the evidence that the Department's
decision to issue the Permits should be reversed because the engineering design of Phases IA
and II failed to comply with the applicable engineering standards of 25 S.C. Code Ann. Regs.
61-67 (Supp. 2000).
3. "The qualification of a witness as an expert in a particular field is within the sound discretion
of the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118
(1984). Where the expert's testimony is based upon facts sufficient to form the basis for an
opinion, the trier of fact determines its probative weight. Berkeley Electric Coop. v. S.C. Pub.
Service Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); See also Smoak, supra. Furthermore, a
trier of fact is not compelled to accept an expert's testimony, but may give it the weight and
credibility he determines it deserves. Florence County Dep't of Social Services v. Ward, 310
S.C. 69, 425 S.E.2d 61 (1992). He also may 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).
4. Contrary to the Petitioners' assertions, the requirements of 25 S.C. Code Ann. Regs. §§ 61-68
and 61-101 (Supp. 2000) are not applicable to the issuance of the Permits, pursuant to 25 S.C.
Code Ann. Regs. 61-67 (Supp. 2000).
5. The Department has the duty and authority to regulate the discharge of pollutants through the
Pollution Control Act. That regulatory authority includes the oversight of the issuance of
permits for the construction of sewer lines. See S.C. Code Ann. §§ 48-1-10, et seq. (1987 and
Supp. 2000). As a result, it is unlawful to construct or install a waste water disposal system until
the plans have been submitted to and approved by the Department. Specifically, Section 48-1-110 requires any person wishing to construct or install a disposal system or source, which
includes construction of the gravity sewer lines at issue in this case, to first obtain a permit from
the Department. Additionally, Section 48-1-50(5) gives the Department the authority to,
among other things, issue permits and place conditions on such permits.
Design and Construction Requirements
6. Pursuant to S.C. Code Ann. §§ 48-1-110 and 48-1-50 (1987 and Supp. 2000), the Department
promulgated Regulation 61-67. Regulation 61-67 sets forth the engineering design and
construction requirements the Department applies in determining whether to issue permits for
construction of all wastewater treatment facilities and all wastewater collection and transmission
facilities. Specifically, Section 100 of Regulation 61-67 sets forth certain general requirements
applicable to all permits issued under the regulation, including the contents of the permit
application and the requirement that it be stamped and signed by a professional engineer.
Section 200 of Regulation 61-67 addresses the requirements for the Preliminary Engineering
Report(s) which must be submitted to the Department. Section 300 of Regulation 61-67 sets
forth the requirements for Construction Permits, with subsection (A) addressing certain general
requirements and subsection (B) addressing specific requirements applicable to Gravity Sewer
Lines/Collection Systems. The Construction Packages for Phases IA and II met all statutory and
regulatory requirements of Regulation 61-67.
208 Plan
7. The Petitioners argue that the Department must make the determination that the proposed
construction is in compliance with the applicable 208 Water Quality Management Plan. 25 S.C.
Code Ann. Regs. 61-67.100(E)(8)(a) (Supp. 2000) provides that:
All engineering reports and construction permit applications shall be reviewed to determine if
they conflict with the applicable 208 Water Quality Management Plan, except those projects or
activities identified in subsection 67.100.E.8.b below. Engineering reports shall not be approved,
and construction permits shall not be issued if it is determined that they conflict with the 208
Water Quality Management Plan.
However, Section 100(E)(8)(a) of Regulation 61-67 does not specify that the Department staff
itself must review the relevant 208 Water Quality Management Plan. Rather, the Regulation
requires only that the determination be made that the construction permit complies with the 208
Plan. Here, the Department's staff relied upon the ACOG assurance that the construction permit
complied with the 208 Plan. More importantly, the evidence presented at the hearing
established that the construction permit complied with the 208 Plan.
Navigable Waters
8. Section 300(A)(18) of Regulation 61-67 sets forth that "[i]f a proposed wastewater system
requires construction in State navigable waters and the Department determines that a permit
shall be issued for the construction in navigable waters, considerations of the navigable waters
permit process shall be incorporated into the review for the wastewater construction permit." 25
S.C. Code Ann. Regs. 61-67.300(A)(18) (Supp. 2000). The provisions concerning navigable
waters are set forth in 23 S.C. Code Ann. Regs. 19-450 (Supp. 2000). The Department properly
complied with the requirement of Section 300(A)(18) that considerations of the navigable waters
permit process be taken into account by including specific conditions addressing those
considerations on the Phase II Construction Permit.
Average Flow Projections
9. The Petitioners contend that when determining flow values, Anderson Respondents
overestimated the population projections and thus oversized the sewer lines. "Where flow does
not exist, or additional flow is proposed, a reasonable estimate of the characteristics of the
proposed waste shall be supported based on the . . . contributory population as referenced to the
type of facility to be served, as stated in 61-67 Appendix A." 25 S.C. Code Ann. Regs. 61-67.200 (D)(1)(c)(1)(b) and (D)(1)(c)(1)(b)(i) (Supp. 2000). However, Regulation 61-67 does not
contain any requirements regarding how population figures are calculated for flow purposes.
Nevertheless, it is an industry custom for professional engineers to utilize and rely upon
population figures and projections from governmental agencies.
The Petitioners also contend that the sewer lines may be oversized. The Respondents, on the
other hand, argue that the size of the sewage pipes has little bearing on the functionality of the
sewer system. However, 25 S.C. Code Ann. Regs. 61-67.300(B)(3) (Supp. 2000) sets forth that
"[t]he pipe diameter and slope shall be selected to obtain the greatest practical velocities to
minimize settling problems." That regulation clearly provides that sewer lines that are of a
greater size than needed could pose a problem to the functionality of the sewer system.
Nevertheless, the Petitioners did not make any calculations or establish whether the projected
flow could be lower so as to warrant the reduction of the lines by one or two line sizes.
The Petitioners also argue that the Permits do not comply with the minimum flow requirement
set forth in 25 S.C. Code Ann. Regs. 61-67.300 (B)(3) (Supp. 2000). Section 300(B)(3)
provides, in relevant part that:
For all domestic wastewaters and for industrial wastewaters with solids which are similar in size
and nature to solids in domestic wastewater, all gravity sewers shall be designed and constructed
to give mean velocities, when flowing full, of not less than two (2) feet per second, based on
Manning's formula using an "n" value of thirteen thousandths (0.013). Slopes slightly less than
those required for the two (2) feet per second velocity, when flowing full, may be permitted.
Such decreased slopes shall only be considered where the depth of flow shall be three tenths
(0.3) of the diameter or greater for average flows. Whenever such decreased slopes are selected,
the design engineer shall furnish with the report design computations of the anticipated flow
velocities of average and peak flows. The report shall indicate the actual velocity in the sewer
lines at the proposed slope and the actual velocity at the required slope in order to achieve two
(2) feet per second, when flowing full.
The minimum flow requirement is a design requirement that the sewer lines must meet when the
line is "flowing full." Both Phases IA and II sewer lines meet this design requirement. There is
no requirement that the sewer lines actually flow full at all times when in operation. The facts
reflect that even when flowing at less than full flow, the sewer lines will scour adequately and
will be functional.
Infiltration/Exfiltration Design
10. The Petitioners contend that the infiltration/exfiltration design standard set forth in Section
300(B)(11) of Regulation 61-67 will allow leakage of untreated sewage into the environment. 25
S.C. Code Ann. Regs. 61-67.300(B)(11) (Supp. 2000) provides that:
All gravity sewers shall be designed and specified such that the leakage outward (exfiltration)
or inward (infiltration) shall not exceed two hundred (200) gallons per inch of pipe diameter per
mile per day. An air test may be utilized in lieu of an infiltration/exfiltration test, if approved by
the Department.
The Permits meet this design requirement of Section 300(B)(11). Specifically, Mr. Longshore
testified that infiltration/exfiltration will be minimal given the construction of the pipelines and
the materials used. Furthermore, Anderson Respondents will conduct an infiltration/exfiltration
test to insure the integrity of the system before it is placed in operation.
Operation and Maintenance
11. The Petitioners raised several issues regarding whether the sewer lines will be properly
operated and maintained. Regulation 61-67.100(7), entitled "Approval to Place in Operation,"
contains the requirement that:
Newly-constructed facilities shall not be placed into operation until an approval to place in
operation is issued by the Department. Upon completion of the permitted construction, the
applicable professional engineer shall make arrangements with the Department for final
inspection. Prior to this inspection, the applicable professional engineer shall submit to the
Department the following:
* * *
b. Other submission requirements include, but may not be limited to, information to confirm
ownership, operation and maintenance of the project, documentation of sewer leakage and pump
tests, along with information concerning the treatment plant operator (where applicable).
25 S.C. Code Ann. Regs. 61-67.100(E)(7) and (E)(7)(b) (Supp. 2000)(emphasis added). It also
contains a requirement for a letter by the entity who will be operating and maintaining the
project, if different than the owner, acknowledging this responsibility. 25 S.C. Code Ann. Regs.
61-67.100(E)(4)(a)(11) (Supp. 2000). These submissions were made by Anderson Respondents
and the Petitioners have not established that they were inadequate. (7)
Due Process
12. The Petitioners contend that DHEC's failure to provide them with notice and an opportunity
to be heard prior to issuing the Permits violates S.C. Const. Article I, § 22. Additionally, the
Petitioners contend that a hearing before this Division does not provide the opportunity to be
heard in a meaningful time and manner to sufficiently comply with Article I, § 22. Section 22 of
Article I provides that the Petitioners "shall not be finally bound by a judicial or quasi-judicial
decision of an administrative agency affecting private rights except on due notice and an
opportunity to be heard . . . ." To prove the denial of due process, a party must show that it has
been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S. C.
Public Service Comm'n., 282 S.C. 430, 319 S.E.2d 695 (1984). The Petitioners have not
identified any fundamental right at stake here which can only be addressed by their having an
earlier opportunity to be heard before DHEC and which right can only be protected by imposing
an additional procedure at the Department level. See Ogburn-Matthews v. Loblolly Partners, et
al., 332 S.C. 551, 505 S.E.2d 598 (Ct. App. 1998). Furthermore, in Ross v. Medical University
of South Carolina, 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court
held that:
Article I, § 22 requires an administrative agency provide notice and an opportunity to be heard,
but does not require notice and an opportunity to be heard at each level of the administrative
process. It mandates notice and opportunity to be heard at some point before the agency makes
its final decision.
The Division, as part of the executive branch of South Carolina government, provides notice and
opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500, et seq. (Supp. 2000). Though the Department may allow the input of interested parties
before issuing a construction permit, this contested case hearing before the Division satisfies the
Petitioners' right to due process.
Nuisance
13. The Petitioners argue that construction of the proposed sewer line would unreasonably harm
the use and enjoyment of their property and the natural resources of the Beaverdam Creek Basin.
The nuisance issue was taken under advisement and testimony was allowed on the issue. However, I now find that while the Department's authority is broad, in the absence of a duty
related to the health and welfare of the public, neither the Department nor the Administrative
Law Judge Division is charged with the responsibility of establishing the land use mix within an
area. Land use decisions are primarily the responsibility of the local zoning authorities, who
exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319
S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217
S.E.2d 797 (1975). It is beyond the jurisdictional scope of the Administrative Law Judge
Division to intervene in local zoning matters or to enjoin a potential future civil nuisance. Id.
Furthermore, to the extent that the Petitioners' contentions center around the potential
interference with the use and enjoyment of their property likely to result from the construction or
operation of the sewage lines, rather than the imposition of a threat to their health and welfare, a
court of equity is the proper forum to adjudicate such a cause of action. See O'Cain v. O'Cain,
322 S.C. 551, 473 S.E.2d 460 (1996). Therefore, this Division does not have subject matter
jurisdiction to entertain the nuisance claims raised by the Petitioners.
The Petitioners also contend that DHEC must consider and issue its certifications pursuant to 25
S.C. Code Ann. Regs. § 61-101 (Supp. 2000) (Water Quality Certification) prior to issuing the
Permits because issuing the Construction Permits prior to clean water certification for the Project
is "getting the cart before the horse." The Respondents set forth that this was not an issue raised
by the Petitioners in either the Petition for Administrative Review or its Prehearing Statement.
Nevertheless, this Division's determination concerning the issuance of these Construction
Permits does not negate the requirement that other mandatory permit(s) must also be issued. It is
not the province of this Division to second guess the Department's procedure of determining the
sequence of issuing its permits.
Conclusion
14. The Department complied with all applicable statutory and regulatory requirements in
reviewing and issuing Wastewater Construction Permit No. 25,912-WW for Phase IA and
Permit No. 25,992-WW for Phase II. Furthermore, these Permits comply with all applicable
engineering requirements set forth in Regulation 61-67. Therefore, the Petitioners have failed to
prove by a preponderance of the evidence that the Wastewater Construction Permits at issue in
this proceeding do not meet the requirements of Regulation 61-67.
ORDER
Based on the foregoing Findings of Fact and Conclusion of Law, IT IS HEREBY ORDERED that Wastewater Construction Permit No. 25,912-WW for Phase IA and Wastewater
Construction Permit No. 25,992-WW for Phase II of the Beaverdam Creek Sewer Project be
issued to Anderson Respondents.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
September 6, 2001
Columbia, South Carolina
1. See S.C. Code Ann. 48-1-10, et
seq. (1987 and Supp. 2000) (The South Carolina Pollution Control Act).
2.
An interceptor sewer is defined in DHEC regulations as a pipeline system designed to transport wastewater or
treated effluent from one location to another. It can flow under pressure or by gravity. 25 S.C. Code Ann. Regs. 61-67.100(D)(23) (Supp. 2000).
3.
The pump station is a part of Phase IB of the Project, which is not at issue in this proceeding, and will pump the
flow to the Six and Twenty Wastewater Treatment Plant.
4.
The County has capacity in the City's RRWTP that it is paying for and cannot use absent sewer system
connections.
5.
DHEC does not critique the population values submitted in conjunction with the flow projections. DHEC
contends that reviewing those values is outside their scope of review under Regulation 61-67.
6.
Mr. Longshore is a registered professional engineer in the States of South Carolina and Georgia and has been
employed by B.P. Barber & Associates as an engineer for twenty-nine years. He was qualified as an expert in civil
engineering, including 201 and 208 planning, engineering reports and studies, and design and construction of
wastewater collection, transportation and treatment systems. I find that his opinion concerning this case was
persuasive.
7. Regulation 61-67 does not contain requirements regarding the actual operation and maintenance of sewer lines
once they are in use. These issues are compliance issues rather than issues concerning the issuance of a construction
permit. |