ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental
Control ("Department"), denying a request by Kelly S. Busch ("Petitioner") for a septic tank permit. The Department
found the Petitioner's property suitable for a septic tank system, but denied the permit due to Petitioner's access to a public
sewer system. Petitioner requested an expedited hearing, which was held on September 26, 2002 at the offices of the South
Carolina Administrative Law Judge Division.
STIPULATIONS OF FACT
The parties to this action have agreed to stipulate to the following facts:
- Mr. Kelly Busch filed Application #32622 for a permit to install an individual sewage treatment and disposal system
(septic system) on June 26, 2002, on property located at 1402 Farming Creek Road in Richland County, Tax Map
#03207-01-01.
- On August 23, 2002, Mr. Busch filed Application #32720 for a second permit to install a septic system on the same
property.
- On July 8, 2002, DHEC employee Harold McCaslin visited Mr. Busch's property to conduct an evaluation of the site,
but was unable to access the proposed septic system area.
- On August 7, 2002, DHEC employee Robert Deyo revisited Mr. Busch's property and determined that areas on Mr.
Busch's property are suitable for the installation of a septic system. However, Mr. Deyo subsequently determined that
Mr. Busch could not install a septic system on his property because a sanitary sewer line along Farming Creek Road was
accessible for connection.
- DHEC denied permit Applications #32622 and #32720 because sewer was accessible to Mr. Busch's property.
- On August 14, 2002, Mr. Busch and Mr. Deyo received written confirmation from Richland County Office of Utilities
that Richland County does not have sanitary sewer line accessible to his property, but that Carolina Water Service, Inc.,
does have an existing sewer line along Farming Creek Road that is accessible to Mr. Busch's property.
- Carolina Water Service, Inc., is a foreign, privately owned, for-profit corporation.
- By letter dated August 16, 2002, Richland County Office of Utilities and Services received written confirmation from
the South Carolina Public Service Commission (PSC) that Carolina Water Service, Inc., is a public utility regulated by
the PSC and is willing and able to provide sewer service to Mr. Busch's property.
- On August 30, 2002, Mr. Deyo informed Mr. Busch by letter that his septic system applications had been denied
pursuant to S.C. Code Ann. Reg. 61-56, Section X (1976), because public sewer was accessible for connection.
- On September 4, 2002, Mr. Busch received an e-mail communication from Tony McDonald, Richland County Assistant
Administrator, confirming that, pursuant to a County ordinance, Richland County would not require Mr. Busch to
connect to the sewer line along Farming Creek Road because the County does not own the sewer line.
- DHEC interprets the phrase "public sewer is accessible for connection" in Regulation 61-56, Section X, to include
sewer systems that are available to the public, regardless of whether a sewer system is owned by a public entity, such as
a county or municipality, or a private entity, such as a corporation.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1. Pursuant to the Administrative Procedures Act, the Administrative Law Judge Division has jurisdiction to conduct
contested case hearings concerning matters governing septic 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.
- 24A S.C. Code Ann. 61-56 (1976), Section X, states that "Permits for new individual
sewage treatment and disposal systems shall not be issued where public sewer is accessible for connection." The term
"public" is not defined in the regulation.
- 24A S.C. Code Ann. 61-57 (Supp. 2001), Section II, defines "public sewer system"as as "a system owned and operated
by a public entity or publicly owned treatment works as defined in Regulation 61-67 and Regulation 61-9 respectively."
Petitioner argues that this definition should be applicable to Regulation 61-56. Regulation 61-57 governs Development
of Subdivision Water Supply and Sewage Treatment/Disposal Systems, while Regulation 61-56 concerns Individual
Sewage Treatment and Disposal Systems. Therefore, the definition within Regulation 61-57 is not applicable to
Regulation 61-56.
- The construction of a statute by the agency charged with its administration should be
accorded great deference and will not be overruled without a compelling reason. Glover by Cauthen v. Suitt Const. Co.,
318 S.C. 465, 458 S.E.2d 535 (1995).
- Black's Law Dictionary defines "public" as "1. Relating or belonging to an entire
community, state, or nation. 2. Open or available for all to use, share, or enjoy."
- In this case, Carolina Water Service is willing and able to provide sewer service to
the Petitioner, and such service is accessible. The Department's interpretation of "public sewer" to include a privately
owned sewer system that is accessible and willing to offer sewer service to Petitioner, is reasonable. Therefore, the
Department properly denied Petitioner's applications for a septic tank.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the decision of the Department is hereby affirmed.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
October 11, 2002
Columbia, South Carolina
|