SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before me upon Petitioner's request for a contested case hearing upon Respondent's denial of his application for a septic tank permit. Jurisdiction is granted to the Administrative Law Judge Division by 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 July 14, 1999 to determine whether Respondent South Carolina Department of Health and Environmental Control (DHEC) is estopped to deny the issuance of a septic tank permit to Petitioner (Johnson).

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. Johnson owns 3.26 acres of real property located at the corner of Medical Park Road and Coleman Road in Saluda, South Carolina. Johnson purchased the property for residential purposes.

2. On July 11, 1995, Johnson submitted a septic tank permit application to DHEC's Saluda office. The application indicated a proposed location on the northeast portion of the lot, with the septic system to serve a four-bedroom house to be built at a later time.

3. On July 13, 1995, DHEC employee Allen Williams (Williams) issued to Johnson a permit for installation of a septic system in the proposed location on Johnson's property.

4. Williams is no longer an employee of DHEC and he did not appear as a witness at the hearing of this case. No documentation could be found on any soil borings that Williams may have conducted prior to issuing the July, 1995 permit.

5. On August 4, 1995, Williams gave final approval to the installation of a septic system on Johnson's property; however, the actual installation of the septic system was located on the southwest portion of the lot, with the purpose of serving a mobile home occupied by Johnson's son, Calvin Butler (Butler). In the interim, Butler, with the consent of Johnson, had requested Williams to allow the septic system permit to be used on the southwest portion of the lot to serve his mobile home. As a result of Butler's conversation with Williams, Butler and Johnson believed that Johnson could use the permit again in the future for the installation of another septic system on the originally proposed location for his four-bedroom house, upon merely paying a second application fee. However, it was never established what Williams actually told Butler.

6. Thereafter, in 1995 and 1996, Johnson cleared, graded and landscaped his lot, installed a well to serve a four-bedroom house, and built a road on the lot.

7. On December 7, 1998, Johnson went to DHEC's Saluda office to pay the application fee for a second septic system on his property. Johnson told DHEC employee Lawrence Roberts (Roberts) that he already had a permit for the system and he presented to Roberts a copy of the 1995 permit that was ultimately used for his son's mobile home. Roberts searched the active permit files in the office and did not find the 1995 permit therein. Roberts determined that the 1995 permit was finished and located in DHEC's closed files. Johnson was required to complete a new application for the septic system to be installed on the northeast portion of his lot.

8. On December 9, 1998, William H. Burriss, III, of DHEC, conducted a site visit to determine if the proposed site was suitable for a septic tank.

9. During his evaluation, Mr. Burriss observed the slope of the land, color of the soil, and rock formations. Four soil bores were made during this evaluation. The findings indicated that the property's high water table, massive clay and shallow rock would not support a conventional septic tank system, an alternative system or an experimental system.

10. On February 25, 1999, the property was reevaluated by Mr. John Neil and Mr. Lawrence Roberts. Additional soil boring tests were conducted. The resulting findings corresponded with those determined by Mr. Burriss during his December 9 evaluation: the property's seasonal high water table is less than six inches below the natural ground surface. Further, a slowly permeable clay subsoil exists on property to depths of 25 to 40 inches.

11. By letter dated March 9, 1999, DHEC notified Petitioner that the permit could not be issued for construction of a septic tank at the proposed location because the soil conditions on the property were not suitable for a septic tank system.

DISCUSSION

The parties stipulated at the hearing of this matter that the sole contested issue for determination is whether, under the circumstances of this case, DHEC is estopped from denying the issuance of a septic tank permit to Johnson.⁽¹⁾ Johnson argues that he reasonably relied on Williams' conduct and statements to his detriment, and therefore, DHEC should be estopped from denying the permit. Although it is clear that Williams issued a permit, the exact oral representations made by Williams were never established.

The State may be subject to the estoppel doctrine in certain cases. See, e.g., Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). However, that doctrine will not be applied to deprive the State of the due exercise of its police power or to thwart its application of public policy. South Carolina Department of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980).

A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority but '[t]he public cannot be estopped . . . by the unauthorized or erroneous conduct or statements of its officers or agents which have been relied on by a third party to his detriment.'

Service Management Inc. v. State Health & Human Services Fin. Comm'n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989) (quoting South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987)) (emphasis added). In both Service Management and Vogel, the Court refused to bind the State to the erroneous conduct of its employee.

In Vogel, as in the instant case, a State agency employee made an erroneous representation to a permit applicant regarding the permissibility of a proposed project. The applicants claimed that a Coastal Council employee represented to them that they could build a deck on their beach house seaward of the critical line without a permit. The Court of Appeals agreed with Coastal Council that a state agency cannot be estopped from the legitimate exercise of its police power because of an error of its agent which has been relied on by a third party to his detriment. Vogel, 357 S.E.2d at 188-189. There was no question that, even if the employee did make such a representation to the Vogels, he did not have the authority to make such a representation; another Coastal Council employee testified that "'no one can tell anyone they can build without a permit if regulations require one.'" Vogel, 357 S.E.2d at 189.

Likewise, in the instant case, the testimony shows that Williams did not have the authority either to approve two septic systems on one permit or to issue any permit for a septic tank on the proposed site, as that location did not meet the minimum site conditions for any type of septic tank under the applicable regulation, 24A S.C. Code Ann. Regs. 61-56 (1976). Therefore, any representation by Williams to Johnson or his son that he need only pay another application fee prior to installing a septic tank in that location was erroneous and inconsistent with the applicable law.

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). To implement this policy, the General Assembly has authorized DHEC to promulgate and enforce regulations governing the disposition of sewage. S.C. Code Ann. § 44-1-140(11) (1985). The implementation of this policy cannot be thwarted by an agency employee's erroneous statements or conduct that is clearly inconsistent with the applicable law. Vogel, 357 S.E.2d at 189.

Johnson compares the instant case to Oswald v. County of Aiken, 281 S.C. 298, 315 S.E.2d 146 (Ct. App. 1984). Johnson asserts that Williams had the requisite authority and was acting within the course and scope of his employment. Johnson characterizes Williams' representations to his son as "discretionary action." Johnson maintains that Williams "issued a valid permit which Petitioner relied upon, and Mr. Williams buttressed the authority of this permit by his oral representations." (Petitioner's Reply Brief, pages 4-5).

In Oswald, it was within the power of Aiken County to pay its employees for compensatory time, and thus, the County was required to pay the plaintiff for accrued compensatory time. In the instant case, however, it was not within Williams' authority to issue a written permit or give oral permission to Johnson to install a septic tank in a location that does not meet regulatory standards. Neither was it within Williams' authority to represent to Johnson's son that Johnson could recycle the septic tank permit after it had already been used by Johnson's son for a mobile home on the same property.

DHEC properly applied the regulatory standards to Johnson's 1998 application in fulfilling its duty to maintain reasonable standards of purity of water resources of the State. Further, any prior conduct or statements made by DHEC's employee that may have led Johnson to believe that he could lawfully install a septic tank in the proposed location upon the mere payment of another application fee was unauthorized and erroneous. Therefore, DHEC cannot be estopped from denying Johnson's permit application.

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), and 1-23-310 et seq. (Rev. 1986 & Supp. 1998).

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.

9. On Johnson's property, the soil borings reveal that the seasonal high water table is less than six inches below the natural ground surface. Further, a slowly permeable clay subsoil exists on the property to depths of 25 to 40 inches. Therefore, Johnson's site does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.

10. DHEC properly denied Johnson's septic tank application.

11. The State may be subject to the estoppel doctrine in certain cases. See, e.g., Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). However, that doctrine will not be applied to deprive the State of the due exercise of its police power or to thwart its application of public policy. South Carolina Department of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980).

12. A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority but "[t]he public cannot be estopped . . . by the unauthorized or erroneous conduct or statements of its officers or agents which have been relied on by a third party to his detriment." Service Management Inc. v. State Health & Human Services Fin. Comm'n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989) (quoting South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987)).

13. Williams did not have the authority either to approve two septic systems on one permit or to issue any permit for a septic system to be installed on the proposed site, as the site did not meet the minimum conditions under Regulation 61-56. Any representation by Williams to Johnson or his son that Johnson need only pay another application fee prior to installing a septic tank on the site was erroneous and inconsistent with the applicable law. Therefore, DHEC cannot be estopped from denying Johnson's permit application.

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

IT IS HEREBY ORDERED that the septic tank permit application of Joe Johnson is DENIED.

AND IT IS SO ORDERED.

____________________________

August 10, 1999 JOHN D.GEATHERSS

Columbia, South Carolina Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

1. The elements of estoppel are (1) conduct by the party estopped which amounts to a misrepresentation; (2) the intention or at least the expectation that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the true facts; (4) lack of knowledge or the means of knowledge of the facts by the other party; (5) reliance upon the conduct by the other party; and (6) a detrimental change of position by the other party because of his reliance. Oswald v. County of Aiken, 281 S.C. 298, 315 S.E.2d 146 (Ct. App. 1984).