SC Administrative Law Court Decisions

This matter comes before me pursuant to Petitioner Michael Baker's request for a contested case hearing to challenge the denial of his application for a septic tank permit by the Respondent, South Carolina Department of Health and Environmental Control ("DHEC" or "Department"). The Administrative Law Judge Division (ALJD) has jurisdiction over this matter pursuant to S.C. Code Ann. §§ 1-23-600 (B) (Supp. 2001) and S.C. Code Ann. § 1-23-310, et seq. (1986 & Supp. 2001). A hearing was conducted on February 27, 2002, at the Administrative Law Judge Division in Columbia, South Carolina.

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and witnesses, I find the following by a preponderance of the evidence:

• Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.
• Petitioner seeks a septic tank permit for property identified as Lot 14, Block E and located on Cedar Island in the subdivision of Fairlawn Barony, in Moncks Corner, South Carolina.

• Petitioner purchased the subject property for $33, 000 in September 2001 from the Searights, an couple living across the street from the subject property within the Fairlawn Barony subdivision. To purchase the subject property and to build a house upon it, Petitioner sought and obtained a construction loan from a local bank. Under the terms of the loan, Petitioner must complete the house no later than April 1, 2002. If Petitioner fails to do so, he must pay a penalty to the bank of $1200 per month the construction remains incomplete.
• On November 9, 2001, Reginald Mixon, whom Petitioner hired to build his house, submitted an application on behalf of the Petitioner to the Trident District DHEC office, Berkeley County, for permission to construct an individual sewage treatment and disposal system ("septic tank") on the subject property.
• After Mr. Mixon submitted the application for the septic tank permit, Ben Bozardt, a DHEC employee, inspected the subject property and evaluated the soil to determine the level of its seasonal high ground water table ("SHGWT"). This evaluation revealed that the property was composed entirely of deep fill material. As a result of his inspection, Mr. Bozardt determined that the characteristics of the subject property did not meet the minimum requirements set forth under 24A S.C. Code Ann. Reg. 61-56 (1976). Consequently, Mr. Bozardt concluded that DHEC could not issue a permit for any type of septic tank system for the proposed use of the subject property. However, Mr. Bozardt gave Petitioner the opportunity to have monitoring wells installed and monitored on the subject property so that the level of the SHGWT can be evaluated.
• Water table monitoring studies are only valid if the precipitation for the area in question is at least equal to the existing average rainfall during the monitoring period. If precipitation is not at least normal during the monitoring period, the site may be monitored again. Well monitoring is performed by DHEC staff weekly during the months of November through April only.
• Petitioner appealed Mr. Bozardt's denial of his septic tank permit application to DHEC. On November 27, 2001, M. Reid Houston, a DHEC supervisor assigned to the Division of Onsite Wastewater Management, accompanied Mr. Bozardt on a re-inspection of the subject property. Mr. Houston evaluated the site for the use of all three types of septic tank systems, conventional, alternative, and experimental. However, because the subject property is composed entirely of fill material, Mr. Houston determined that no septic tank system could be permitted for the Petitioner's property under the current conditions.
• This tribunal takes judicial notice that drought conditions continue to prevail in Berkeley County. Because the accuracy of water table monitoring is dependent upon receiving average rainfall during the period of testing, which occurs from November through April, it is very unlikely that DHEC will obtain any reliable results from monitoring conducted on the subject property. Assuming the drought conditions improve and average rainfall is received during the next testing cycle, the earliest DHEC could evaluate the monitoring conducted on Petitioner's lot is late Spring 2003.
• Cedar Island, upon which the subject property is located, was created in the 1970's by piling dredged materials from the Cooper River basin onto the adjacent land. Consequently, all lots in Fairlawn Barony are composed of fill material. Because all fill is not the same, an individual lot may have different characteristics than a lot located elsewhere on the island. Some time prior to June 19, 1986, the Searights, owners of the subject property prior to Petitioner's purchase of it, obtained title to the subject property. After the Searights obtained the subject property, a development company purchased all seventy-three of the unsold and undeveloped lots in the neighborhood of Fairlawn Barony from another developer. In response to a request from the purchaser, DHEC conducted an evaluation for the use of individual septic tanks for the seventy-three lots. DHEC did not conduct an individual evaluation of each of the seventy-three lots; instead, DHEC conducted evaluations of several sites located throughout the island. Its findings and decision were memorialized in a letter dated June 19, 1986. In that letter, DHEC approved all seventy-three lots for use of septic tank, including all three lots adjacent to Lot 14, Block E, the subject property. DHEC's letter stated that each prospective builder would have to apply for and receive a septic tank permit in accordance with Regulation 61-56 prior to construction.
• Since 1988, DHEC has received many applications for septic tank permits for lots covered by the June 9, 1986 letter ("Blanket Approval Letter"). In each case, DHEC conducted an on-site evaluation of the individual lot so that it could determine whether the soil were suitable for septic tank use. In a number of cases, DHEC determined that a particular lot was unsuitable for use of a septic tank (i.e., that the soil conditions of the lot failed to meet the requirements of Regulation 61-56). Despite its finding that septic tank use was unsuitable on at least some of the lots covered by the Blanket Approval Letter, DHEC has issued a permit for use of some type of septic tank system to every owner of a lot covered by that Letter who has applied for one.
• Petitioner's lot and all other lots located in Fairlawn Barony are composed of similar fill material. Other lots exhibit similar qualities as Petitioner's, although Petitioner's lot exhibits a higher degree of cementation than other lots that have been evaluated in the subdivision. However, if Petitioner's lot had been included in the Blanket Approval Letter, DHEC would have issued a septic tank permit to him despite the subject property's failure to meet the requirements of 61-56 and its degree of cementation.
• No more harm should result in the issuance of a permit for septic tank use for the subject property than would result from DHEC's issuance of a permit to another lot owner whose lot was unsuitable but was covered by the Blanket Approval Letter.
• After DHEC issues a permit for use of a septic tank, the owner is obligated to keep the system in good working order and to make all necessary and recommended repairs to that system. Failure or inability of an owner to repair the system to good working order will result in the owner's expulsion from his home. Petitioner is willing to assume the risk that no septic tank system installed on his property will function properly under any conditions and that he may have to abandon the property.

CONCLUSIONS OF LAW

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

• The Administrative Law Judge Division has subject matter jurisdiction over this case pursuant to S.C. Code Ann. § 1-23-600 (B) (Supp. 200) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 2001)
• S.C. Code Ann. § 44-1-140(11) (1976) provides the authority for DHEC to promulgate regulations relating to septic tank systems.
• 24A S.C. Code Ann. Regs. 61-56 (1976) governs septic tank systems and the issuance of permits for these systems.
• The Department may deny an application for an individual sewage treatment and disposal system permit when conditions of an inspected property fail to correspond with the above-stated requirements. S.C. Code Ann. § 48-1-50(5) (1987); see also South Carolina Dept. Of Health and Environmental Control v. Armstrong, 293 S.C. 209, 214, 359 S.E.2d 302, 304-305 (Ct. App. 1987).
• However, DHEC may not deny one septic tank permit based on unsuitable soil conditions while at the same time grant another septic tank permit with similarly unsuitable soil conditions. An agency may not deny a benefit to one citizen that it bestows upon another citizen similarly situated without violating the equal protection and due process guarantees of the Constitutions of both the State of South Carolina and the United States. See Weaver v. South Carolina Coastal Council, 309 S.C. 368, 375, 423 S.E.2d 340, 344 (1992).
• Under the evidence presented in this case, there is no question that Petitioner has not yet demonstrated that his property meets the minimum site conditions for an individual sewage treatment and disposal system as provided by 24A S.C. Code Ann. Regs. 61-56 (1976). However, denial of a septic tank permit to Petitioner would amount to a violation of his equal protection and due process rights. DHEC admits that Petitioner's lot is similar in composition to other lots located in Fairlawn Barony that have received some type of septic tank permit. Further, DHEC readily admits that, had Petitioner's lot been covered by the Blanket Approval Letter, it too would have been permitted for septic tank use, whether or not its soil conditions were suitable. In addition, permitting Petitioner's lot would result in no more harm than permitting one of the seventy-three lots whose soil conditions were unsuitable for septic tank use. Therefore, the only distinguishing factor between Petitioner's lot and the seventy-three lots located adjacent to and surrounding Petitioner's lot is the coverage provided by the Blanket Approval Letter. Such is not enough to treat Petitioner differently than his similarly situated neighbors. Accordingly, Petitioner's application for a septic tank permit is GRANTED. However, Petitioner must understand that he will bear the responsibility for complying with the terms of the septic tank permit. In the event Petitioner's septic tank does not work properly, he must make all necessary repairs and modifications as directed by DHEC. If the system is incapable of functioning properly, Petitioner must bear the risk that he can be expelled from his home.

Based upon the Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department issue Petitioner a septic tank permit for property located at Block E, Lot 14, Fairlawn Barony, Moncks Corner, South Carolina, within 30 days of the issuance of this Order. Such permit must be issued for a septic tank system that is most likely to operate properly on the subject property. Petitioner must comply with all necessary and reasonable conditions of the permit as imposed by DHEC.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

March 1, 2002

Columbia, South Carolina