SC Administrative Law Court Decisions

D. Radford Bates (Bates) seeks a septic tank permit for Lot 15, Block F in Fairlawn Barony, 1629 Cedar Avenue, Berkeley County. The South Carolina Department of Health and Environmental Control (DHEC) opposes Bates' application and asserts the property is entirely covered by approximately three feet of fill material unsuitable for a septic tank system. Bates's disagreement with DHEC's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 44-1-50 and § 1-23-600(B) (Supp. 2001). The hearing in this matter was held September 3, 2002 at the Edgar Brown Building, Columbia, South Carolina. After receiving written supplemental arguments on September 13, 2002, the matter is now ready for decision. Based upon the evidence and the arguments presented, the request for a septic tank permit must be denied.

Given the soil conditions of Bates' property located at Lot 15, Block F in Fairlawn Barony, 1629 Cedar Avenue, Berkeley County, should a septic tank permit be issued?

Since DHEC has granted permits to other lots in the same subdivision, does Equal Protection require granting a septic tank permit to Bates?

1. Positions of Parties

DHEC asserts no permit can be granted since the water table is found at less than twelve inches from the soil surface and the lot is comprised entirely of fill dirt with a high clay consistency incompatible with a septic tank system. Bates disagrees and argues the property is compatible with a septic tank system.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

a. Investigation of Lot

On January 24, 2000, Bates filed an application with DHEC to obtain a septic tank permit for Lot 15, Block F in Fairlawn Barony, 1629 Cedar Avenue, Berkeley County (Lot 15). Lot 15 is a corner lot on Cedar Avenue and Canal Drive.

On February 18, 2000, the Trident Health District evaluated the soil of Lot 15 and determined that the lot was not suitable for a septic tank system since the mottling found in the soil borings indicated a water table presence within 12 inches of the soil surface. As a result, Trident Health District personnel notified Bates on March 14, 2000 that the lot was not suitable for a septic tank system. No appeal was filed from the March 14, 2000 determination.

However, in 2002 Bates came to believe that a septic tank permit had been granted by DHEC for Lot 15. Accordingly, Bates sought to install a septic tank system on the property. However, DHEC denied that any such permit had been granted and further DHEC held that no permit could be granted for the property.

On May 20, 2002, Bates challenged the denial of the permit request. In response, DHEC personnel on May 30, 2002, inspected Lot 15 by making four additional soil borings. Those borings determined that the surface of the lot consisted of at least three feet of fill dirt unsuitable for a septic tank system. Bates was notified by DHEC personnel on June 14, 2002 that Lot 15 was not suitable for a septic tank because of the extensive fill dirt. Bates did not conduct any soil borings of his own on Lot 15.

b. Soil Conditions and Characteristics

The seasonal high water table on Lot 15 is within 12 inches of the soil surface. Further, the entire first three feet of depth on the lot is comprised of dredged fill materials having a high clay content.

3. Conclusions of Law

a. Introduction

DHEC is authorized to promulgate regulations relating to septic tanks. S.C. Code Ann. § 44-1-140 (11)(1976). Those regulations require that before a permit will be granted, the site must meet the standards set by DHEC. 24A S.C. Code Ann. Regs. § 61-56 (V) (A)(1976). Lot 15 does not meet the required standards.

b. Seasonal High Water Table

Under the regulations, a conventional septic tank system requires that the maximum seasonal high water table for the proposed site be at least twenty-nine inches (29") below the natural ground level. See 24A S.C. Code Ann. Regs. § 61-56 (V)(B) & (VII)(B)(1)(1976) (9 inches of soil over 14 inches of aggregate, both of which must be 6 inches above the seasonal high water table). Further, where a conventional septic tank system is not feasible, DHEC may allow an alternative system for both the initial treatment of sewage and the final treatment and disposal of sewage as long as the alternative system is within standards established by DHEC. 24A S.C. Code Ann. Regs. § 61-56 (VI)(B)(1),(2) & (VII)(C)(1),(2) (1976). For example, a modified conventional septic tank system may be allowed if the maximum seasonal high water table for the proposed site is at least twenty-one inches (21") below the natural ground level. This system relies upon 9 inches of aggregate plus 6 inches of soil plus the 6 inches needed above the seasonal high water table.

Here, the level of the seasonal high water table on Lot 15 is within 12 inches of the soil surface. A conventional system requires 29 inches and a modified system requires 21 inches. Thus, the water table height in this case prohibits the granting of a septic tank permit for Bates' property. In addition, the soil into which the system would be installed is entirely fill dirt consisting of clayey material. Such material has a tendency to remain saturated with moisture and is thus not conducive to the proper distribution of waste material generated by a septic tank and drain field. Accordingly, Lot 15 does not meet the minimum site conditions for an individual sewage treatment and disposal system under S.C. Code Ann. Regs. § 61-56 (V) whether the system is conventional or alternative.

1. Positions of Parties

Bates asserts that numerous lots in the subdivision have been granted septic tank permits and that his lot is no different from those lots having already received permits. Thus, Bates argues that his rights to equal protection are violated if others are granted a permit but he is not. DHEC argues that Bates' lot is not the same as other lots in the subdivision since allowing the permit will create a septic tank system that will most probably fail and create a health concern for the neighbors.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

During the 1960's and 1970's dredging material from the Cooper River was deposited across a significant area of land commonly known as Cedar Island in Moncks Corner, South Carolina. That land was subsequently developed as Fairlawn Barony, a residential subdivision. Thus, essentially all of the lots in the subdivision are composed in some degree of fill material.

DHEC has granted numerous septic tank permits for owners of lots in the subdivision. In fact, by letter dated June 19, 1986, DHEC gave tentative approval to seventy-three lots in the subdivision but required each builder seeking to install a septic tank system on those lots to obtain final approval before construction. In years past, some of those seventy-three lots have failed to meet installation standards. However, in such circumstances, DHEC's past treatment has been to issue a permit for the lots covered by the 1986 letter.

However, Bates' lot is not one covered by the 1986 determination. Indeed, while all of the lots have fill material, not all of the lots have the same soil or the same physical features. For example, Bates' lot slopes toward the canal and has a higher concentration of clayey material than nearby lots. Thus, due to the topography and texture of the soil, a greater likelihood exists that the system will fail and allow waste material to contact ground water producing the potential for depositing unprocessed waste into the canal. Failing systems are not unusual in the subdivision since other lot owners have experienced problems in the past.

3. Conclusions of Law

Where the circumstances surrounding the application for a permit by one party are similar to those of the party's neighbors and where the existence of the party's permit will not create an effect distinguishable from that caused by a neighbor's permit, the denial of a permit to the party violates equal protection. Weaver v. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (S.C. 1992). Here, however, equal protection is not violated. The existence of Bates' permit will create an effect distinguishable from that caused by permits issued to the neighbors since meaningful differences exist between Bates' lot and those of nearby neighbors. See Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979) ("differences in classification are not unconstitutional unless they . . . are not rationally related to a permissible state objective.").

Here, the permissible state objective is that of protecting the public health by regulating the disposal of waste. See S.C. Code Ann. § 48-1-100(C) ("The Department of Health and Environmental Control is the agency of state government having jurisdiction over those matters involving real or potential threats to the health of the people of South Carolina, including the handling and disposal of . . . human or animal wastes."). That objective is rationally met by denying Bates' application since doing so prohibits the unhealthy discharge of waste into the environment. In this case, Bates' lot slopes toward the canal and has a higher concentration of clayey material than nearby lots. Thus, the topography of the land and the texture of the soil presents a greater likelihood than other lots that a system failure that will occur, and that such a failure will place waste material in contact with ground water so as to produce a heightened potential for depositing unprocessed waste into the canal. Therefore, the real potential for harm to human health distinguishes Bates' lot from other nearby lots so that a denial of Bates' permit is not a denial of equal protection.

Based upon the Findings of Fact and Conclusions of Law, the following ORDER is issued:

Bates's application for a septic tank permit for a lot identified as Lot 15, Block F in Fairlawn Barony, 1629 Cedar Avenue, Berkeley County is denied.

AND IT IS SO ORDERED.

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: Novermber 7, 2002

Columbia, South Carolina

1. Bates also raised the issue that DHEC had already issued a permit for lot 15, Block F and that DHEC was now estopped from withdrawing that permit. I find that no permit was issued for lot 15, Block F. Rather, I find that a prior permit was issued for lot 15, Block H. Thus, no permit having been issued for the lot involved in this case, no estoppel issue arises.