SC Administrative Law Court Decisions

In this matter Douglas C. Miles (Miles) seeks a septic tank permit for a lot located at the end of Blanch Street near Lake City, South Carolina. The South Carolina Department of Health and Environmental Control (DHEC) opposes Miles' application and asserts the water table is too high and that the subsoil creates an impermissible restrictive layer denying a septic tank permit. Miles' disagreement with DHEC's determination places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 44-1-50 and § 1-23-600(B) (Supp. 1998). The hearing in this matter was held November 15, 1999 at the Edgar Brown Building, Columbia, South Carolina. Based upon the evidence and the argument presented by the parties, the septic tank permit is denied.

Given the soil conditions of Miles' property located at the end of Blanch Street near Lake City, South Carolina, should a septic tank permit be issued?

1. Positions of Parties

Miles argues that he should be granted a permit for a waste disposal system on his property in Lake City, South Carolina for three reasons. First, since other existing home sites in the area have operated with traditional septic tank systems, Miles argues he should be allowed to employ a traditional septic tank system based on an assertion that his property is no different than adjacent property. Second, Miles argues that an experimental system identified as a "mound system" will work satisfactorily on his property and should be approved. Finally, if all other systems are rejected, Miles argues that DHEC should approve an aerobic system which would permit a discharge of treated effluent.

DHEC disagrees with Miles. DHEC argues that the soil texture and water table level do not allow the use of a traditional septic tank system notwithstanding that other homeowners in the area do have such systems. Further, DHEC asserts that the experimental "mound system" does not meet the requirements of the regulations. Finally, DHEC argues that an aerobic system which would permit a discharge of treated effluent is not allowable under the controlling regulations. Rather, DHEC asserts Miles would need a discharge permit and he has not sought such in this case.

2. Findings of Fact

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

a. Investigation of Lot

On October 4, 1996, Miles' wife submitted an application to DHEC seeking permission to construct an individual sewage treatment and disposal system on land owned by Miles in Lake City, South Carolina. A Florence County DHEC official inspected the property on October 10, 1996 with the inspection seeking to determine whether the lot was suitable for construction of a septic tank. The Florence County official decided no permit could be granted.

The soil analysis from several drillings taken by the Florence County official shows a seasonal high water table of eight inches below the surface. Based on this data, the official concluded that neither a conventional nor an alternative-type individual sewage treatment and disposal system could be approved, and he notified Miles of the decision in a November 4, 1996 notice. Indeed, a second inspection on December 2, 1996 utilized additional soil drillings and found the water table at a depth of seven inches below the surface. Miles was notified of the findings in a notice dated December 3, 1996.

Miles' appeal of DHEC's decision produced a third inspection on April 22, 1999. The third inspection utilized four soil drillings and each drilling established that the water table was always less than twelve inches below the surface. In a letter dated April 23, 1999, DHEC again notified Miles that its evaluation confirmed that the property's high seasonal water table prohibited granting the permit. In addition, the soil drillings established that the depth from the surface to a restrictive clay layer was as little as four inches and no more than twelve inches. Given the denial of the permit, Miles, on May 5, 1999, sought a contested case hearing before the Administrative Law Judge Division.

b. Adjacent Property

Several of the lots in the area have traditional septic tank systems. However, no recent permits have been granted in the area, and the systems now in operation have been in operation for a number of years. No inspections by DHEC or Miles were made of the operating efficiency of the existing systems in the area.

d. Mound System

Miles proposed a "mound system" primarily relying upon a mound area of approximately 4,500 square feet. Miles presented an expert witness who gave an opinion that the mound system would adequately function on the lot. However, the expert admitted that the system is not based upon Regs. 61-56 and that the system does not meet the requirements of Regs. 61-56. Further, the evidence establishes that the system designed for Miles' lot relies upon an absorption rate of 1.2 gallons per day, per square foot. However, such a rate is in error since the clayey soil on the Miles lot will allow for an absorption rate of only .5 gallon per day, per square foot.

e. Aerobic Treatment

Miles proposed the use of a wastewater treatment system on his lot. The system is an aerobic system which requires a discharge into the environment through a drip irrigation method. While the system is in use in other states for residential dwellings, DHEC has not previously permitted such a system for a residence in South Carolina.

3. Conclusions of Law

Based upon the above Findings of Fact, the following Conclusions of Law are entered:

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). Since the lot in question here does not meet the required standards, the permit must be denied.

a. Conventional or Alternative-type System

The regulatory required standards for a conventional or alternative-type system address water table depth and restrictive barriers in the subsoil.

i. 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 the Miles lot is at depths as shallow as seven inches. A conventional system requires 29 inches and a modified system requires 21 inches. Thus, the water table depth on the Miles lot prohibits the granting of a septic tank permit.

ii. Restrictive Barrier

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 that 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 depth of 27 inches is needed before reaching a restrictive horizon. These standards are not meet in this case.

On the Miles lot a restrictive clay barrier is met at depths of as little as four inches but not greater than twelve inches. Given the fact that the restrictive barrier begins at such shallow levels, neither the conventional system (a requirement of 35 inches) nor the modified system (a requirement of 27 inches) will function on the Miles lot.

b. Adjacent Property

The moving party, i.e., the party seeking the permit, is Miles, and he bears the burden of proof. 2 Am. Jur. 2d, Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook, § 9:3 Party With Burden, Civil Cases (1994). The evidence that similar systems are in use on other lots in the area does not provide persuasive support for concluding that a traditional septic tank system will properly function on the Miles lot. First, no persuasive evidence establishes that the systems on the other lots are in fact properly functioning. Second, no persuasive evidence establishes that the soil properties on the Miles lot are consistent with the properties of other lots in the area. Finally, the regulations now applicable to Miles are different from those that were applicable at the time the former permits were issued for most if not all of the other lots in the area. Thus, Miles has not shown that the status of other lots requires a conclusion that his lot should be permitted.

c. Mound System

The mound system advanced by Miles is not an acceptable system for granting a permit. Miles' own expert agreed that the system is not based upon Regs. 61-56 and that the system does not meet the requirements of Regs. 61-56. Further, the evidence establishes that the system designed for Miles' lot relies upon an absorption rate of 1.2 gallons per day, per square foot. Such a rate is excessive since the clayey soil on the Miles lot allows for an absorption rate of only .5 gallon per day, per square foot. Thus, the system as designed does not present convincing evidence that the mound system will function properly on the Miles lot.

d. Aerobic Treatment

Miles proposed the use of a wastewater treatment system on his lot with that system being an aerobic arrangement discharging treated effluent into the environment through a drip irrigation method. Such a system is not allowed unless an NPDES permit is obtained. See the South Carolina Pollution Control Act (S.C. Code Ann. Sec. 48-1-10 et seq. (Rev. 1987 & Supp. 1998)), and the Water Pollution Control Regulations drafted pursuant thereto (24 S.C. Code Ann. Regs. 61-9 (Supp. 1998)) where DHEC is given the authority to issue permits for point source discharges of effluent under a NPDES permit. Miles has neither shown that he has obtained an NPDES permit nor has he established that he is entitled to such a permit.

In summary, under the evidence presented in this case, the Miles lot does not meet the minimum site conditions for an individual sewage treatment and disposal system under S.C. Code Ann. Regs. Sec. 61-56 whether the system is conventional, alternative, or experimental. Accordingly, no permit is allowed under Regs. 61-56.

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

Douglas C. Miles' application for a septic tank permit for a lot located at the end of Blanch Street near Lake City, South Carolina is denied.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 30, 1999

Columbia, South Carolina