SC Administrative Law Court Decisions

Juanita L. Bass (Bass) requested a contested case hearing due to the denial by the South Carolina Department of Health and Environmental Control (DHEC) of Bass' application for a septic tank permit for a lot identified as Lot 14, Horse Cove Road, Lexington County, S.C., TMS No. 003917-01-014. Jurisdiction vests in the Administrative Law Judge under S.C. Code Ann. § 44-1-50 and § 1-23-600(B) (Supp. 1996). As a result of a hearing held on November 12, 1997, I find the permit is properly denied.

Does property located at Lot 14, Horse Cove Road, Lexington County, S.C.,TMS No. 003917-01-014 qualify for a septic tank permit?

1. Positions of Parties:

DHEC argues no permit can be granted since a massive clay layer exists on the property with rock underlying the clay. DHEC argues that since the clay layer is found at very shallow depths no existing system can properly function on the lot. Bass argues she has held the lot for over 20 years. She further asserts that since she purchased the lot with an understanding that a septic tank would function properly, she should be granted the permit.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. On March 19, 1997, Bass filed an application with DHEC to obtain a septic tank permit for lot 14 on property located at Horse Cove Road, Lexington County, S.C.

2. Lot 14 is approximately 52 feet wide.

3. On March 25, 1997, the Lexington County Health Department evaluated the soil of lot 14 by three soil borings and determined that massive clay was present at depths beginning in a range from 18 inches to 28 inches below the surface.

4. Lexington County Health Department personnel notified Bass on March 26, 1997 that the lot was not suitable for a septic tank system.

5. On April 10, 1997, DHEC personnel inspected lot 14 by two additional soil borings which determined that the seasonal high water table was in a range of 14 inches to 17 inches with massive clay beginning at 26 inches and underlying rock beginning in a range of 59 inches to 66 inches.

6 A neighbors well is situated within three feet of the property line of lot 14.

7. On April 10, 1997, DHEC notified Bass that the additional inspection of lot 14 demonstrated the lot did not meet the minimum requirements for a conventional, alternative or experimental septic tank system since the depth to massive clay was too shallow and the required setback from water sources left a lot too small to adequately handle a septic tank system.

8. On May 5, 1997, a third inspection was performed by additional DHEC personnel to evaluate lot 14 by the use of two more soil borings.

9. The May 5, 1997 soil borings demonstrated lot 14 presented massive clay at 24 inches.

10. Bass conducted no soil borings on lot 14.

11. The seasonal high water table on lot 14 is in a range of 14 inches to 17 inches.

12. Lot 14 has massive clay beginning at 24 inches and underlying rock beginning in a range of 59 inches to 66 inches.

13. Lot 14 is not suitable for operation of a septic tank system whether conventional, alternative, or experimental.

3. Discussion

In general, the regulations require that before a permit will be granted, the site must meet standards set by DHEC. 24A S.C. Code Ann. Regs. § 61-56 (V) (A)(1976). Two standards include the maximum seasonal high water table elevation which shall not be less than six (6) inches below the bottom of the proposed soil absorption trench and the depth to rock and other restrictive horizons which cannot be greater than one foot below the bottom of the absorption trench. S.C. Code Ann.Regs. 61-56 (V)(B)(C). Lot 14 meets neither condition.

a. 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 14 is in a range of 14 inches to 17 inches. A conventional system requires 29 inches and a modified system requires 21 inches. Thus, the water table height of 14 to 17 inches prohibits the granting of a septic tank permit for Bass' property.

b. Depth to Restrictive Horizon

DHEC regulations require that the depth to rock and other restrictive horizons must be greater than one foot below the bottom of the absorption trench. S.C. Code Ann. Regs. 61-56 (V)(C). Since a conventional system requires a trench 23 inches below the surface, the addition of another 12 inches before encountering a restrictive horizon requires a depth of 35 inches from the surface must be available before encountering a restrictive horizon. Likewise under a modified system, which requires a trench depth of 15 inches, a total of 27 inches is needed before reaching a restrictive horizon.

Here, a restrictive barrier of massive clay is met at 24 inches. Further, the massive clay has an additional restrictive barrier underlying it since rock begins in a range of 59 inches to 66 inches. Given the fact that the massive clay begins at 24 inches and continues to a depth of 59 inches where rock is encountered, neither the conventional system (a requirement of 35 inches) nor the modified system (a requirement of 27 inches) will function on lot 14.

4. Conclusions of Law

Based on the Findings of Fact and Discussion, I conclude the following as a matter of law:

1. DHEC is authorized to promulgate regulations relating to septic tanks. S.C. Code Ann. § 44-1-140 (11)(1976).

2. Promulgated regulations govern individual waste disposal systems and the issuance of septic tank permits. 24A S.C. Code Ann. Regs. § 61-56 (1976).

3. DHEC regulations require that the depth to the seasonal high water table must be greater than six inches below the bottom of the absorption trench. 24A S.C. Code Ann. Regs. § 61-56 (V)(B)

4. DHEC regulations require that the depth to rock and other restrictive horizons must be greater than one foot below the bottom of the absorption trench. 24A S.C. Code Ann. Regs. 61-56 (V)(C).

5. 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 to accommodate the system. 24A S.C. Code Ann. Regs. § 61-56 (V)(B) & (VII)(B)(1)(1976).

6. A conventional septic tank system requires the availability of a depth of 35 inches from the surface before encountering a restrictive horizon. 24A S.C. Code Ann. Regs. § 61-56 (V)(C) & (VII)(B)(1)(1976).

7. Where a conventional septic tank system is not feasible, DHEC is authorized to consider 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).

8. A modified conventional septic tank system requires that the maximum seasonal high water table for the proposed site be at least twenty-one inches (21") below the natural ground level and at least twenty-seven (27") before reaching a restrictive horizon.

9. DHEC may establish, in its discretion, policies and standards concerning all aspects of individual sewage treatment and disposal and may allow experimental systems within acceptable standards. 24A S.C. Code Ann. Regs. § 61-56 (XIII) (1976).

10. Lot 14 on property located at Horse Cove Road, Lexington County, S.C., 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, alternative, or experimental.

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

Bass' application for a septic tank permit for a lot identified as Lot 14, Horse Cove Road, Lexington County, S.C., TMS No. 003917-01-014 is denied.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 25th day of November, 1997

Columbia, South Carolina