ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me upon Petitioner Bill Etheridge's request for a contested case hearing upon Respondent South
Carolina Department of Health and Environmental Control's (DHEC) denial of his 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 September 2, 1999 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 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 lots 6 and 7 located in Country Club Estates at 406 Fairveiw Drive in McCormick County, South
Carolina. Petitioner purchased the property for residential purposes.
2. On January 28, 1999, Robert E. Weichmann, a general contractor, submitted a septic tank permit application to DHEC
on behalf of Petitioner. The application requested permission to construct an individual sewage treatment and disposal
system for a proposed three-bedroom home to be situated on portions of both of the lots referenced above.
3. On February 2, 1999, February 5, 1999, and March 3, 1999, DHEC officials conducted site evaluations to determine
whether the proposed site was suitable for a septic tank.
4. During his February 2 evaluation, Mr. Anthony M. Storey observed the slope of the land, color of the soil, and rock
formations. Five soil borings were made during this evaluation. Two of the borings indicated a high water table at 24
inches, two at 18 inches, and one at 30 inches. 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 high water table would not support a
conventional septic tank system, an alternative system or an experimental system.
5. On February 5, 1999, the property was reevaluated by Mr. Eric Neil and Mr. Storey. Additional soil boring tests were
conducted, and the resulting findings corresponded with those of Mr. Storey's February 2 evaluation. Mr. Storey
subsequently returned to the property on February 10, 1999 to inspect the excavation of four pits to determine whether it
would be possible to excavate below the shallow water table. As a result, he determined that the seasonal high water table
was present between 18 inches and 90 inches.
6. By letter dated February 17, 1999, Mr. Storey 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.
7. On February 23, 1999, Mr. Weichmann, on behalf of Petitioner, appealed the denial of the septic tank permit by DHEC.
As part of an internal review after the appeal, M. Reid Houston of DHEC inspected the site on March 3, 1999 and similarly
observed the slope of the land, low or wet areas, soil boring locations and other pertinent topographic features. Mr.
Houston conducted four borings. Mr. Houston's findings indicated that the property's high water table and massive clay
would not support a conventional septic system, an alternative system or an experimental system.
8. On May 13, 1999, Petitioner's privately hired wastewater and geology expert, Ray Livingston, evaluated the property at
issue. Mr. Livingston installed borings on a different portion of the property. Based on his site review and these soil
borings, Mr. Livingston determined that the property was suitable for a shallow placement system.
9. On May 20, 1999, Mr. Houston evaluated areas where Petitioner's expert had conducted borings on May 13, 1999. Mr.
Houston's findings indicated that the seasonal high water table was less than six inches below the natural ground surface.
That is, suitable soil conditions were not present in the area evaluated by Mr. Livingston to meet the minimum requirements
for the installation of any onsite wastewater treatment and disposal system. While certain borings in the area indicated a
sufficient high water table, such findings were not consistent over an area large enough to support 300 linear feet of drain
field. Similarly, Mr. Livingston testified that it was his opinion that the property was only marginally suitable for an
individual septic system and required shallow placement of such a system. Even though Mr. Houston did not find the
placement of a septic system to be suitable in the area identified by Mr. Livingston, he did find that soil borings on a certain
sloped area of the property exhibited slight potential for an Ultra-shallow placement of a septic system. He further indicated
that this area was extremely marginal for placement of a septic system. Petitioner, nonetheless, proceeded with his appeal.
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).
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 Petitioner's property, the soil borings reveal that the seasonal high water table is less than six inches below the natural
ground surface. Further, a massive clay subsoil exists on the property to depths of 20 to 120 inches. Therefore, Petitioner's
site does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.
10. DHEC properly denied Etheridge's septic tank application.
11. 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).
12. 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, SCACR, Canon 3.
13. 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).
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the septic tank permit application of Petitioner Bill Etheridge is DENIED.
AND IT IS SO ORDERED.
____________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 17, 1999
Columbia, South Carolina |
