SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the petition of Mark A. Hubbard (Hubbard or Petitioner). Petitioner 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 applications for Lot 12-A, Brickyard Point, Berkeley County. A hearing was held on October 16, 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 located at Lot 12-A, Brickyard Point, Berkeley County, South Carolina. Mr. Hubbard purchased the property on November 13, 1998, intending to construct a single family dwelling and possibly house a few horses.

3. Mr. Hubbard filed his application for a Septic Tank System Permit on September 25, 1999.

4. On October 5, 1999, a Department inspector conducted a site assessment and took six soil borings on the property. On October 19, 1999, two Department supervisors, Mr. Benjamin Bozardt and Mr. Gene Warner, also inspected Hubbard's property and took additional soil borings. As a result of their examination of these borings, the Department ascertained that the soil conditions were not suitable for a septic tank. The Department notified Mr. Hubbard of this decision by letter dated October 20,1999.

• Following this denial of a permit, Mr. Hubbard constructed a mounded area, at

DHEC's suggestion, of 125' by 150', and 45 inches above ground level. By doing so, Mr. Hubbard was attempting to artificially lower the seasonal high water table for his lot in an attempt to receive approval for an experimental or non-traditional septic system. A monitoring well was installed on October 20, 2000, and this area was monitored by DHEC from October 27, 2000 until April 30, 2001.

• Pursuant to DHEC's memo 360-086-85, dated May 6, 1985, the precipitation levels

from the nearest official weather station must be normal during the well monitoring period for the results to be valid and usable. During this period, from October 2000 through April 2001, the average rainfall from the nearest reporting weather station at the City of Charleston was 5.81 inches below normal. By letter dated May 30, 2001, DHEC notified Hubbard of this below normal rainfall and that the results from the well monitoring would not be validated and utilized.

7. Hubbard then notified DHEC of his intent to appeal the denial of a septic tank

permit. By letter dated October 3, 2001, DHEC indicated that the Department would review the file, and conduct a site evaluation, prior to a formal hearing. By letter dated May 17, 2002, DHEC issued its official denial of Hubbard's request for a septic tank permit.

• Specifically, DHEC's findings were that the lot had a seasonal high water table

of less than twelve inches below the natural ground surface. In addition, DHEC found a slowly permeable clayey subsoil present at a shallow depth which would also affect the placement of the drain lines and the treatment and absorption of the wastewater. The Department also looked at the portion of the property that Hubbard had filled in an attempt to have a more experimental system, but the monitoring information from this area was not valid due to the inadequate rainfall during the monitoring period. By letter dated May 23, 2002, Hubbard requested a hearing on this denial.

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 individual sewage treatment and disposal systems. See S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2002).

2. In weighing the evidence and deciding a contested case on the merits, this Court 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. 2002) 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, for a conventional system, there must be a twenty-nine inch water table. This depth provides twenty-three inches for the system and a six inch buffer area, so that 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 generally less than twelve inches.

• Here, however, Hubbard has done all that has been asked of him to artificially lower

the seasonal high water table. He has constructed the 125' x 150' x 45" mound as suggested by DHEC. He has had the property monitored during the wet season. He is not intending to have a multi-family development on this property, but rather a single family home. It appears that had the rainfall in the area been normal, this system would have been approved. DHEC relies heavily on DHEC Memorandum 360-086-85, dated May 6, 1985, which outlines the rainfall requirements for validating the well monitoring figures when a Petitioner is attempting to qualify for a septic tank system under those guidelines. There is no evidence, however, presented to the Court which shows that the restrictions promulgated in this memorandum have ever been adopted as a Regulation by DHEC and the General Assembly. Finding no official recognition for this restriction, this Court refuses to give the memorandum the weight of a regulation. ⁽¹⁾

• Furthermore, I take judicial notice of the news release from the South Carolina

Department of Natural Resources, dated November 21, 2002, which downgraded the drought status of every county in South Carolina. Specifically, the Drought Response Committee stated that "Abundant precipitation has eliminated drought conditions altogether in ten counties located in the southern region and most of the Coastal Plain." (Including Berkeley County) In addition, in this same news release, Masaaki Kiuchi, a DNR hydrologist, indicated that groundwater levels are recovering and in some areas have reached the highest levels in two years. Based on this information, but specifically limiting this decision to the facts as presented in this case, I find that Mr. Hubbard's application for a septic system is approved.

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

IT IS HEREBY ORDERED that the septic tank permit application of Petitioner Mark A. Hubbard is approved.

AND IT IS SO ORDERED.

____________________________________

Carolyn C. Matthews

Administrative Law Judge

March 4, 2003

Columbia, South Carolina

1. Judge Kittrell, Chief Judge of the Administrative Law Judge Division, developed an exhaustive list of what action is involved in determining whether a statement by a state agency rises to a "statement of general public applicability that implements or prescribes law or policy," in Western Carolina Regional Sewer Authority v. DHEC, 98-ALJ-07-0267 and 98-ALJ-07-0585, citing the definition of "regulation" in the SC Administrative Procedures Act, S.C. Code Ann. §1-23-10(4), (Supp. 1998). The South Carolina Supreme Court has adopted the "binding norm" test established by several Federal cases. See, Home Health Serv. Inc.v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E. 2d 375 (1994), citing Ryder Truck Lines, Inc. v. U.S. 716 F.2d 1369 (11thCir. 1983) and Captain's Quarters Motor Inn v. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). "The key factor in determining whether a policy statement establishes a "binding norm" is the extent to which the challenged policy leaves the agency free to exercise its discretion to follow. . . . the policy at issue in a particular situation." WCRSA v. DHEC, supra at 41, citing Home Health Srvs Inc. "Any policy or guidance relied on by DHEC that has not been promulgated pursuant to this regulatory process 'does not have the force or effect of law' S.C. Code Ann. §1-23-10(4) (Supp. 1998)." WCRSA v. DHEC, supra at 42. Here the policy allows no discretion to DHEC, but neither has it been through the process for promulgating an official regulation.