SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the petition of George Hill. Petitioner Hill requested a contested case hearing challenging the South Carolina Department of Health and Environmental Control's (DHEC or Department) denial of his septic tank permit application for Lot 26 located in New Bordeaux Subdivision in McCormick County, South Carolina. A hearing was held on June 18, 2002, at the offices of the Administrative Law Judge Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Department.

2. The property that is the subject of this contested case is Lot 26 on Pettigrew Circle, New Bordeaux Subdivision, situated in McCormick County, South Carolina. At the hearing, Petitioner Hill testified that he purchased the property in the early 1990s from the federal government. As the Petitioner was in the process of selling this property to Wayne Gable, the initial "Application for Permit to Construct an Individual Sewage Treatment Disposal System" was filed on July 23, 2001 by Mr. Gable to determine if the property could carry a septic tank. As of the date of this hearing, no structures had been constructed on the property. Septic tank permits have been issued for the lots on either side of Lot 26.

3. On July 23, 2001, July 31, 2001, and August 24, 2001, three separate DHEC officials conducted site evaluations to determine whether the proposed site was suitable for a septic tank.

4. During the site evaluation on July 23, 2001, Russell Scot Yarbrough, an Environmental Health Manager in DHEC's McCormick County office, observed and recorded the slope of the land, the color of the soil, and rock formations. Through an examination of his borings and existing backhoe pits, Mr. Yarbrough ascertained that the soil conditions were not suitable for a septic tank. These 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. He also concluded that rock and consolidated saprolite (disintegrated rock) formations existed approximately 18" to 30" below the surface. Hence, the site would not support a conventional septic tank system, an alternative system, or even an experimental system. At the conclusion of his site evaluation, Mr. Yarbrough referred the permit application to DHEC employee Todd L. Self.

5. On July 31, 2001, Mr. Self, the Upper Savannah Health District Onsite Wastewater Supervisor, and Mr. Yarbrough conducted an inspection of Lot 26. Based on the soil borings made during this evaluation, along with Yarbrough's previous test of the soil from his borings, Mr. Self also determined that the lot was unsuitable for a septic tank. ⁽¹⁾ More specifically, DHEC's findings were that the lot had a seasonal high water table of 20" or less, along with heavy textured clays at relatively shallow depths. Although Mr. Self admitted that some of the borings appeared perhaps suitable for the installation of either a shallow modified or deep alternative system, these occurred in areas too small to place a septic tank system.

On August 3, 2001, as a direct result of these two on-site evaluations, Mr. Self mailed copies of the denial letter to Mr. Gable, the original applicant, and Mr. Hill, the property owner.

In the letter, the Department set forth that "[t]he owner of this property may request an administrative/field review of the septic tank permit denial." Mr. Hill requested this review and another on-site evaluation was conducted on August 24, 2001.

6. The August 24, 2001 site review was conducted by William H. Burriss, III, an Appeals Officer with DHEC's central office. Mr. Burriss affirmed the denial of this septic tank permit upon observation of the same conditions as set forth above.

7. Therefore, I find that though the two adjoining lots may have septic tank systems, unfortunately, because of the soil conditions upon the Petitioner's property, no individual septic tank systems currently exist that could be installed on this lot that would meet the requirements of the septic tank regulations, 24A S.C. Code Ann. Regs. 61-56 (1976), or statutes, S.C. Code Ann. §§ 44-55-610 through 44-55-860 (1976 & Supp. 2000).

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

1. Pursuant to the Administrative Procedures Act, the Administrative Law Judge Division has jurisdiction to conduct contested case hearings concerning matters governing underground storage tanks. See S.C. Code Ann. § 1-23-310 et seq. (1986 & 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). Furthermore, the burden of proof rests upon the Petitioner in this case. Id.

3. S.C. Code Ann. § 44-1-140(11) (1976 & Supp. 2000) provides the authority for DHEC to propose regulations relating to septic tank systems. Pursuant to that authority, 24A S.C. Code Ann. 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 standards set by DHEC. 24A S.C. Code Ann. Regs. 61-56 § V(A) (1976). 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). However, 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). The Department found the site's seasonal high water table to be between 10" and 22".

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 12" above any restrictive soils such as clay or rock. DHEC's evaluations of the Petitioner's property revealed the existence of heavy textured clays at relatively shallow depths - from 2" to 22". Therefore, DHEC properly concluded that the property does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.

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

IT IS HEREBY ORDERED that the septic tank permit application of Petitioner George Hill is denied.

AND IT IS SO ORDERED.

____________________________________

Ralph King Anderson, III

Administrative Law Judge

October 9, 2002

Columbia, South Carolina

1. Mr. Gable, the original applicant, had provided the backhoe that dug the pits during Mr. Yarbrough's on-site visit. Based on the similarity of the soil borings taken during both evaluations, Mr. Self determined that there was no need to review the lot with a backhoe a second time.