ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for hearing following the revocation of a septic tank permit for
Lot Nine (9), Coral Acres Extension Subdivision, Berkeley County, South Carolina by the Department of Health and
Environmental Control (hereinafter referred to as "DHEC"). A hearing was held on September 19, 1994. The issues
considered were: the site suitability of the property for a septic tank system and whether DHEC properly revoked
Petitioner's septic tank permit.
MOTION TO DISMISS
Respondent moved to dismiss the petition for hearing on the following grounds: Petitioner failed to timely
file petition; Petitioner failed to state facts sufficient to constitute a cause of action; Petitioner seeking relief for a
non-party. At the hearing Respondent abandoned the timeliness ground. Motion to dismiss on the remaining grounds
was denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Lot Nine (9), Coral Acres Extension Subdivision, Berkeley County, (hereinafter referred to as "the
property") is an unimproved lot owned by Petitioner and his wife, Christina Kelly.
(2) Petitioner applied to DHEC for a septic tank permit for the property on March 28, 1990, while the
property was owned by his mother-in-law, Linda M. Locklear.
(3) On May 10, 1990, after two inspections and soil sample tests, Permit No. 6464 was issued to Petitioner for
a six (6) inch modified conventional septic tank system for a two-bedroom mobile home.
(4) Permit No. 6464 contained a requirement for soil absorption trenches of two hundred feet (200') in
length and included a diagram showing the approved location for the proposed septic tank system.
(5) The alternative system approved requires soil absorption trenches to be at least fifteen (15) inches deep,
with the maximum seasonal high water table elevation not less than six (6) inches below the bottom of the proposed
soil absorption trenches. Thus, the maximum seasonal high water table elevation must be no higher than twenty-one
(21) inches from the ground surface.
(6) No septic tank system was ever installed on the property.
(7) In 1992, Petitioner purchased the property from Linda M. Locklear and contracted with W.B. Bazzle to
have a permanent home built on the property.
(8) On June 15, 1992, Permit No. 6464 was changed to allow for construction of a three-bedroom permanent
house on the property, requiring soil absorption trenches of three hundred feet (300') in length.
(9) The June 15, 1992, change to Permit No. 6464 was authorized based upon a plat submitted by Petitioner
showing the intended location of the proposed dwelling.
(10) The actual location of the foundation of the dwelling under construction was different than the
proposed location indicated on the plat submitted to DHEC by Petitioner upon which the June 15, 1992, permit change
was authorized.
(11) The actual location of the proposed dwelling included a portion of the property designated for the
drainfields by Permit No. 6464.
(12) DHEC was not informed of the change in location of the proposed dwelling.
(13) Construction began on the property on February 20, 1993, with a bulldozer moved on site to remove
trees and prepare the property for construction of the dwelling's foundation.
(14) The use of the bulldozer and a backhoe to clear the property and lay the foundation for the dwelling
disturbed the soil in the location of the approved drainfields.
(15) M. Reid Houston, DHEC regional supervisor for septic tank permits, visited the property on March 19
and 22, 1993, inspecting the location of the approved soil absorption trenches in relation to the location of the
dwelling construction site. Mr. Houston performed soil absorption tests, made borings and took soil samples, and
determined water table levels.
(16) Based upon the findings of his inspections, Mr. Houston revoked Permit No. 6464 on March 23, 1993, and
notified Petitioner by letter of the same date, stating in part: "The only area on the lot having acceptable soils has
been severely bulldozed and filled and the foundation for the house installed. This action has destroyed the ability of
this soil to properly dispose of septic effluent."
(17) Further inspections and tests were conducted on the property by Mr. Houston on March 30, 1993, and a
finding was made that no suitable site existed on the property for a septic tank system.
(18) Further inspections and tests were conducted on the property by Mr. Houston and Mark Marriner on
June 3, 1993, and Mr. Marriner, DHEC Environmental Quality Manager and Review Officer, concurred that no suitable
site existed on the property for a septic tank system.
(19) Mr. Houston returned to the property on February 28, 1994, and installed monitoring wells on the site.
(20) The monitoring wells were checked at least five (5) times, and a finding was made that no suitable site
existed on the property for a septic system.
(21) On April 22, 1994, Mr. Leonard Gordon, DHEC Environmental Quality Manager, and Mr. Houston visited the
property, and Mr. Marriner informed Petitioner by letter dated
May 10, 1994, delivered by certified mail to his attorney, that the property continued to fail to meet minimum site
requirements for a septic tank permit.
(22) Petitioner petitioned for a review of the May 10, 1994, DHEC decision, precipitating the September 19,
1994, hearing before the Administrative Law Judge Division.
(23) Subsequent to the commencement of clearing and construction on the property, the top sixteen to
eighteen (16-18) inches of soil in the area approved for drainfields was disturbed so
that the characteristics of the soil were altered in such a manner that the soil would not allow for the proper
treatment of sewage.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C.
Code Ann. 48-1-50, 1-23-600(B), and 1-23-310, et seq. (Rev. 1986 & Supp. 1993).
(2) S.C. Code Ann. 44-1-140(11) (1976) provides the authority for DHEC to promulgate regulations relating
to septic tanks.
(3) 24A S.C. Code Ann. Regs. 61-56 (1976) is the applicable DHEC regulation governing individual waste
disposal systems and the issuance of septic tank permits.
(4) Pursuant to S.C. Regs. 61-56, Section IV (4), a septic tank permit shall become void if any of the original
conditions upon which it was issued are changed.
(5) The clearing, grading, bulldozing, and construction work performed on the property
resulted in a change in the original conditions upon which the permit was issued.
(6) The construction of the dwelling at a location different than the proposed location as delineated on the
plat submitted to DHEC amounted to a change in the original conditions upon which the permit was issued.
(7) Lot Nine (9), Coral Acres Extension Subdivision does not meet the minimum site conditions for an
individual sewage treatment and disposal system under S.C. Regs. 61-56, Section V.
(8) The revocation of Permit No. 6464 by DHEC was proper and valid.
ORDER
IT IS THEREFORE ORDERED that septic tank Permit No. 6464, for Lot Nine (9), Coral Acres Extension
Subdivision, Berkeley County, South Carolina, issued to Thomas Carl Kelly is hereby revoked.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 14, 1994
Columbia, South Carolina |