South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Lillie Anderson vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Lillie Anderson

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
99-ALJ-07-0030-CC

APPEARANCES:
William T. Toal
Attorney for Petitioner

Cheryl H. Bullard
Attorney for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before me upon Petitioner Lillie Anderson's request for a contested case hearing to challenge Respondent South Carolina Department of Health and Environmental Control's (DHEC) denial of her application for a septic tank permit. The Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 et seq. (Rev. 1986 & Supp. 1998).

After notice to the parties, a hearing was conducted on November 23, 1999 at the Administrative Law Judge Division to determine (1) whether the proposed site is suitable for a septic tank system, and (2) whether DHEC properly applied the applicable law in denying Petitioner's application for a septic tank permit. Based on the evidence presented, the proposed site is unsuitable for a septic tank system, and DHEC properly denied Petitioner's application.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner owns lot 118, Block A, a lake-front property on Lake Murray, located in Grant-Williams Estates, Newberry County, South Carolina. Petitioner purchased the property for residential purposes in 1968. In 1970, she placed a mobile home on the lot and obtained a septic tank permit. Petitioner bought a new mobile home in 1998 to replace her old home. Apparently during the excavation of the site for the placement of the new home, the existing septic tank and drain lines were demolished, as they could not be located. Further, evidence of crushed "Orangeburg" pipes, the type of drain line utilized in the 1970s, and gravel unearthed on the site indicates that the original septic tank system was in fact partially if not completely destroyed.

2. The location of Petitioner's first home and septic tank system was situated on both lots 118 and 119. (1) That is, based on plats recorded in the Record of Deeds Office for Newberry County and the location of the debris found, ostensibly of the original septic system, this system was situated on lot 119. Petitioner has legal title only to lot 118. While she was presumably given an oral option on lot 119 several years ago, she never exercised it. Moreover, a deed is recorded

evincing that another individual, Mr. Jones, is the legal title holder to lot 119.

3. Petitioner submitted a septic tank permit application to DHEC on October 28, 1998. The application requested permission to construct an individual sewage treatment and disposal system for the mobile home situated on lot 118 referenced above.

4. On February 2, 1998 and December 15, 1998, DHEC officials conducted site evaluations to determine whether the proposed site was suitable for a septic tank.

5. During his February 2 evaluation, Mr. Mark D. Reese of DHEC observed the slope of the land, color of the soil, and rock formations. Suitable soil conditions were not present throughout an area large enough for the installation of a drain field. The findings indicated that the property's soil consisted of massive clay, which is virtually impermeable and thus very likely to cause wastewater back-up onto the ground surface. Hence, the site would not support a conventional septic tank system, an alternative system, or an experimental system.

6. On December 15, 1998, the property was reevaluated by Mr. Leonard A. Gordon of DHEC. Additional soil boring tests were conducted, and the resulting findings corresponded with those of Mr. Reese's February 2 evaluation.

7. DHEC is attempting to facilitate Petitioner's request for permit approval through the alternate means of utilizing property across the street from the site for placement of the septic tank system, if Petitioner can obtain an easement in the property.

CONCLUSIONS OF LAW

Based upon the 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. §§ 1-23-600(B) & 1-23-310 et seq. (Rev. 1986 & Supp. 1998).

2. It is the public policy of the State to maintain reasonable standards of purity of the water resources of the State, consistent with the public health, safety, and welfare of its citizens. S.C. Code Ann. § 48-1-20 (Rev. 1987).

3. S.C. Code Ann. § 44-1-140(11) (1985) provides the authority for DHEC to promulgate regulations relating to septic tank systems.

4. 24A S.C. Code Ann. Regs. 61-56 (1976) is the applicable DHEC regulation governing individual waste disposal systems and the issuance of permits for those systems commonly referred to as septic tank systems.

5. 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).

6. 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).

7. 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).

8. In addition to the water table requirements, DHEC regulations require that the depth to rock and other restrictive horizons must be greater than one foot below the bottom of the absorption trenches or alternate system. 24A S.C. Code Ann. Regs. 61-56(V)(C) (1976). In other words, the bottom of the absorption trenches must be at least twelve inches above any restrictive soils such as clay or rock. Because evaluations of Petitioner's property reveal the existence of massive clay subsoil and other restrictive horizons and the lack of sufficient area for the installation of a drain field, the site does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.

9. It must be noted here that Petitioner is not being precluded as a technical matter from utilizing her original septic tank system. Unfortunately for Petitioner, the reuse or reconnection to the previous system is an impossibility, as that septic tank system cannot be located; all evidence indicates that it was destroyed. What is, in fact, at issue in the present case is DHEC's denial of Petitioner's application for a new permit. In evaluating Petitioner's application for site suitability, it is fundamental that DHEC is required to apply current regulatory standards. In so doing, DHEC properly denied Petitioner's septic tank application. Hopefully, Petitioner will be able to obtain access to the property located across the street from her home, so as to secure a septic tank system for her home.

10. Where an expert's testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997). The trier of fact is not compelled to accept an expert's testimony, but may give it the weight he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992). He may also accept one expert's testimony over that of another. S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

11. In reaching a decision in this matter, I am constrained by the record of evidence as developed by the opposing parties and by the applicable law. S.C. Code Ann. § 1-23-320(I) (Supp. 1998). This decision was rendered impartially, as a judge "ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss." WILLIAM S. McFEELEY, FREDERICK DOUGLASS 318 (1991); Rule 501, S.C. App. Ct. Rules, Canon 3 (1998).

12. The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or commission authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the agency from which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp. 1998). Hence, a party wishing to file an appeal must do so with the agency from which the case originated. On appeal, the scope of review is limited as follows:

[t]he scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380. This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:



a. in violation of constitutional or statutory provisions;

b. in excess of the statutory authority of the agency;

c. made upon unlawful procedure;

d. affected by other error of law;

e. clearly erroneous in view of the reliable, probative and substantial

evidence on the whole record; or

f. arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.



JEAN H. TOAL, SHAHIN VAFAI & ROBERT A. MUCKENFUSS, APPELLATE PRACTICE IN SOUTH CAROLINA 56-57 (1999), citing, S.C. Code Ann. § 1-23-610(D) (Supp. 1998) (emphasis added).

ORDER

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

IT IS HEREBY ORDERED that the septic tank permit application of Petitioner Lillie Anderson is DENIED.

AND IT IS SO ORDERED.

____________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

December 1, 1999

Columbia, South Carolina

1. In fact, based on the plat (Respondent's Ex. #3) a portion of Petitioner's current home is situated on lot 119.


Brown Bldg.

 

 

 

 

 

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