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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Kelly S. Busch vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Kelly S. Busch

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
02-ALJ-07-0381-CC

APPEARANCES:
For the Petitioner: Kelly S. Busch, Pro Se

For the Respondents: Matthew S. Penn, Esquire, for SC DHEC
 

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
























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