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:
James G. McLendon vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
James G. McLendon

Respondent:
South Carolina Department of Health and Environmental Control, Palmetto Health District
 
DOCKET NUMBER:
01-ALJ-07-0169-CC

APPEARANCES:
Petitioner & Representative: James G. McLendon, Ronald R. Hall, Esquire

Respondent & Representative: South Carolina Department of Health and Environmental Control, Palmetto Health District, Cheryl H. Bullard, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction



James G. McLendon (McLendon) seeks approval from the South Carolina Department of Health and Environmental Control, Palmetto Health District (DHEC) of a subdivision development of approximately thirteen lots which lots will use septic tanks as a means for waste disposal. DHEC declined to grant the request. McLendon disagrees with DHEC's conclusion and brings this matter to the ALJD as a contested case.



A hearing was held on September 7, 2001 with all parties present. After considering the evidence and the arguments, DHEC is required to issue the approval requested.



II. Issue



Should McLendon's request to develop a subdivision utilizing individual septic tanks for each subdivision lot be approved by DHEC in light of an allegation that an existing public sewer system is available and accessible to service the lots?





III. Analysis



Availability and Accessibility of Existing Sewer System



1. Positions of Parties



DHEC obtained information that led it to conclude that McLendon's project could have access to an existing sewer system. Further, DHEC had concerns that approving the use of septic tanks could violate an existing Section 208 Water Quality Management Plan



McLendon asserts no sewer system is accessible to his planned subdivision. Thus, he argues that individual septic tanks are permissible for his development and that septic tanks will not violate any existing 208 plan.



2. Findings of Fact



I find by a preponderance of the evidence the following facts:



a. Background Facts



On September 22, 2000, McLendon filed an application with DHEC for approval of a subdivision development. The development contains thirteen lots and is located approximately .3 mile from Highway 321 in Lexington County on Ben Spires Road.



The highway 321 area contains an existing sewer system. However, the existing system is not on property owned by McLendon and is not on property contiguous with McLendon's property. Rather, the existing system is almost 1,600 feet from McLendon's property.



No public funds are available to provide access to the existing system. If access is provided such would be at McLendon's expense and would cost $109,000. That cost would be incurred in an effort to sell thirteen lots at $5,000 each for a total sales revenue of $65,000.



b. Governmental Decisions



In examining the request, DHEC conducted a site evaluation of the proposed subdivision. It determined that the majority of the thirteen lots are suitable for septic tank installation.



In addition to DHEC, McLendon sought other governmental approval. He obtained water service accessibility compliance from the Gaston Rural Community Water District on September 21, 2000 and on September 22, 2000, obtained planning and zoning compliance from Lexington County. However, he encountered difficulty with two other governmental agencies.



McLendon received a determination of non-compliance from the Lexington County Joint Municipal Water and Sewer Commission (Commission) on September 25,2000. The non-compliance form stated that "[p]ublic sewer [is] available by installation of pump station and force main at developers expense."



In a similar fashion, on September 25, 2000 McLendon received a determination of noncompliance from the Central Midlands Council of Governments (Council), the entity responsible for development and implementation of the Section 208 Water Quality Management Plan. The form explained that "[i]n speaking with [the Commission], sewer is available along the Highway 321 corridor." Further comments explained that "[r]eferring to 208 Water Quality Management Plan, sewer, when available and cost effective, existing individual disposal systems and new urban or suburban developments should be required to connect to a public waste water collection system."



In making its decision, Council made no independent determination on whether regional sewer was available to McLendon. Likewise, Council made no independent determination on whether access by McLendon to the existing system would be cost-effective. Rather, in both instances, Council relied upon the decisions of the Commission.



The Commission, however, subsequently changed its position on August 30, 2001 by stating that "the Commission will maintain a position of neutrality concerning the decision to require, or not require, public sewer service to be constructed for the proposed development." Even as late as September 5, 2001, the Commission explained that it took a "neutral position" on the issue of whether the use of septic tanks for this development would interfere with the Commission's immediate or long term plans for sewer service in the area. In addition, the statement explained that there are no plans to extend sewer lines into this area in the future unless extended by the developer at developers expense.



Given the change in position by the Commission and given Council's reliance upon the Commission for determining sewer accessibility, Council revisited its non-compliance decision. While Council made no additional written statement, at the hearing on this matter, Council's witness testified that Council determined it is "difficult to decide" if granting the approval to the subdivision will produce a conflict with the 208 water quality plan.



Accordingly, based on the evidence before me, Council also changed its position and no longer took an affirmative position that McLendon's development must connect to a public wastewater collection system. Rather, the Council continued to rely upon the Commission's determination (now one of neutrality) and thus Council no longer asserted that a public sewer system was available to or cost-effective for McLendon's development.



3. Conclusions of Law



DHEC is authorized to promulgate regulations setting the prerequisites for the installation of septic tank systems. S.C. Code Ann. § 44-1-140(11) (1985). Under that authority, regulation 61-57,§ V.A and B require the following:



A. No lot shall be sold in any subdivision where onsite systems are proposed as the method of sewage treatment and disposal unless the owner or agent has received a written approval from [DHEC]. No approval under this regulation shall be required for subdivisions that are served by public sewer systems.
B. Any person planning to develop a subdivision utilizing onsite systems shall first submit to [DHEC] an Application for Subdivision Approval.



Septic tanks constitute an onsite system for sewage treatment and disposal. See 61-57, § II.D (where "Onsite Wastewater System" is defined as "[a] sewage treatment and disposal system as defined in Regulation 61-56" with Regs. 61-56 addressing septic tank systems). Accordingly, McLendon's decision to develop a subdivision that relies upon septic tanks requires approval from DHEC as identified in Regs. 61-57,§ V.A and B.

In acting on the approval request, DHEC must follow its own regulations. Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598 (Ct.App.,1998) (Administrative agency must follow its own rules and regulations). Two regulatory requirements are relevant here: Regs. 61-57, § IV.A. and Regs. 61-57, § VII.B.



a. Weighing Accessibility Factors of Regs. 61-57, § IV.A.



DHEC is required to comply with the demands of Regs. 61-57, § IV.A. as follows:



If approved public water and/or public sewer service is accessible for connection . . ., subdivisions developed after the effective date of this regulation shall be served by public water and/or public sewer systems. In making determinations pertaining to the accessibility . . ., the Department shall consider the following:



1. The proximity of existing systems to proposed development sites.



2. The condition and status of existing systems. Condition and status in this context shall relate to service capacities and potentials, compliance histories and other factors as deemed appropriate by the Department.



3. Zoning, building and other codes and ordinances established by local governmental entities.



4. The short term and long range plans of local Councils of Governments, regional planning agencies, cities, towns, counties, public service districts, water and sewer authorities and other local governmental entities.



Thus, DHEC must deny McLendon's request for approval of septic tanks for his development "[i]f approved . . . public sewer is accessible for connection." After considering the relevant factors of accessibility, no public sewer service is accessible for the McLendon development.



Here, an existing system is in the general area and that system apparently has the capacity for handling McLendon's development. However, when all factors are considered as a whole, no public sewer service is accessible. First, sewer is not accessible since the proximity of the existing system is unacceptable. Second, no local government or water and sewer authority concluded that the use of septic tanks would interfere with immediate or long term plans for sewer service in the area.



i. Proximity to Existing System



At least two factors demonstrate the proximity of the existing system makes the system inaccessible. First, the existing system is not on property owned by McLendon and is not on property contiguous with McLendon's property. Indeed, the existing system is almost 1,600 feet away. Second, with no public funds available to provide access to the existing system, such access can be achieved only by McLendon expending $109,000. Such a cost prevents the project from being economically viable. An expenditure of $109,000 is unreasonable given that the total sales of lots in the subdivision will produce only $65,000 (13 lots selling at $5,000 each).



ii. Lack of Interference with Sewer Plans



In addition to an improper proximity, no water and sewer authority concluded that the use of septic tanks would interfere with immediate or long term plans for sewer service in the area. The sewer authority governing McLendon's project is the Lexington County Joint Municipal Water and Sewer Commission. The Commission was asked to response to the question, "Would the use of septic tanks in this development interfere with your immediate or long term plans for sewer service in this area?" The response was that "the commission takes a neutral position on this issue." (1) Such a position is not a decision that the use of septic tanks by McLendon will interfere with either the short term or long range plans for the area.



Accordingly, the evidence does not establish that public sewer service is accessible for connection

by McLendon.





b. Determining Conflicts with Section 208 Water Quality Management Plan



In addition to DHEC's determination of accessibility, Regs. 61-57, § VII.B. imposes an additional requirement as follows:



No approval under this regulation shall be issued if such approval would be in conflict with the applicable Section 208 Water Quality Management Plan.



In deciding if any conflict exists with "the applicable Section 208 Water Quality Management Plan," DHEC examined the 208 plan for the Central Midlands Region as adopted by the Cental Midlands Council of Governments (Council), the plan encompassing McLendon's subdivision. That plan establishes the following limitation on the utilization of septic tanks:



When available and where cost-effective, . . . new, urban and suburban developments should be required to connect to a public wastewater collection system.



Further, in an April 2001 addendum to the 208 plan, Council adopted the following:



[Council] accepts the use of septic and other individual disposal systems as a means of waste disposal provided regional sewer is not available. Regional sewer providers are to determine sewer extension and sewer accessibility in conjunction with DHEC.



Thus, under the 208 plan adopted by Council, the use of septic tanks is acceptable when "regional sewer is not available." Obviously, given the language in the plan referencing costs, Council is mindful that sewer is available only "where cost-effective." Further (and equally as obvious), in deciding whether sewer is available, Council's 208 plan relies upon the regional sewer provider "to determine sewer extension and sewer accessibility in conjunction with DHEC."



With no independent determinations by Council on sewer availability or cost-effectiveness, the only input presented to Council on whether to require connection to an existing sewer system was that given by the Commission. However, as explained above, the Commission stated that it "will maintain a position of neutrality concerning the decision to require, or not require, public sewer service to be constructed for the proposed development." Faced with the Commission's position change to one of neutrality, the witness for the Council testified at the hearing that it is "difficult to decide" if granting the approval to the subdivision will produce a conflict with the 208 water quality plan.



Thus, from the totality of the evidence, I find that the Council (just like the Commission) also adopted a position of "neutrality" on the issue of accessibility to a public sewer system. Such a conclusion is supported by the fact that the Council made no independent determination on whether regional sewer was available to or cost-effective for McLendon.



Likewise, not only did Council make no independent determination on whether access by McLendon to the existing system would be cost-effective, but also no other evidence demonstrates that McLendon's connecting to the existing public wastewater collection system would be "cost-effective." Here, McLendon would be required to expend $109,000 to provide access to a subdivision that can only generate $65,000 in revenue (13 lots selling at $5,000 each). Such a cost prevents the project from being economically viable. Therefore requiring connection to the existing public wastewater collection system is not cost-effective.



Since the evidence establishes that connecting to the existing sewer is not cost-effective, no conflict exists with the 208 water quality plan. Thus, Regs. 61-57, § VII.B. presents no prohibition on DHEC's approval of McLendon's application.



IV. Order



McLendon's request to develop a subdivision utilizing individual septic tanks for each of the thirteen subdivision lots on Ben Spires Road in Lexington County is hereby approved.



AND IT IS SO ORDERED



Administrative Law Judge





Dated: September 10, 2001

Columbia, South Carolina

1. Initially, in September 2000, the Commission asserted that the use of septic tanks for this development would interfere with the Commission's immediate or long term plans for sewer service in the area. However, the Commission changed its view on August 30, 2001 by stating that "the Commission will maintain a position of neutrality concerning the decision to require, or not require, public sewer service to be constructed for the proposed development." Even as late as September 5, 2001, the Commission explained that it took a "neutral position" on the issue of whether the use of septic tanks for this development would interfere with the Commission's immediate or long term plans for sewer service in the area.


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