South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Brian Baltzegar vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Brian Baltzegar

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
99-ALJ-07-0305-CC

APPEARANCES:
W. Thomas Lavender, Jr.
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's request for a contested case hearing to challenge Respondent South Carolina Department of Health and Environmental Control's (DHEC) denial of a permit to install a septic tank on Petitioner's property. 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 September 27, 1999 at the Administrative Law Judge Division to determine whether DHEC is estopped to deny the issuance of a permit to install a septic tank on Petitioner's property.



INTRODUCTION

This is a case about unfortunate timing. The property on which Petitioner wishes to install a septic tank system was considered suitable for such a system based on the regulatory standards in effect in 1977, the year in which DHEC approved the subdivision in which Petitioner's lot is located (Edgewater Estates).(1) By today's standards, however, Petitioner's lot is not considered suitable for a septic tank system.

DHEC approved Edgewater Estates pursuant to Regulation 61-57, which governs the development of subdivision sewage disposal systems. Regulation 61-57 provides that no lot may be sold in any subdivision developed after November 3, 1971 prior to DHEC's approval of the subdivision. 24A S.C. Code Ann. Regs. 61-57(III)(E).(2) If individual septic tank systems are considered for use in the subdivision, the regulation requires, as a prerequisite to approval of the subdivision, that each lot in the subdivision have suitable soil conditions. 24A S.C. Code Ann. Regs. 61-57(IV)(B)(1). Regulation 61-57 does not require that a septic tank permit be issued for each lot prior to approval of the subdivision for purposes of lot sales. It specifically provides, however, that a written permit shall be obtained from DHEC prior to beginning construction of any sewage disposal system. 24A S.C. Code Ann. Regs. 61-57(III)(B).

DHEC's mere approval of a subdivision for the purpose of lot sales does not guarantee that DHEC will issue a septic tank permit for any individual lot in the subdivision. DHEC's evaluation of property for purposes of septic tank installation is independent of its evaluation of the same property for purposes of subdivision approval, even though, as a prerequisite to subdivision approval, each lot in a subdivision must meet the same suitability standards which are used in evaluating individual permit applications. In most instances, this should make no practical difference, and DHEC will most likely issue a septic tank permit for any given lot in a subdivision approved under Regulation 61-57. However, the independent evaluation does make a difference when the regulatory standards for determining suitability change between the time of subdivision approval and submission of a permit application for an individual lot to DHEC. This is implicitly recognized by those potential buyers of an unimproved lot who included in a written contract of sale the condition that DHEC issue a septic tank permit for the property.

A potential buyer of Petitioner's property, James Reinhardt, included such a condition in the February 27, 1999 written contract of sale into which he entered with Petitioner. Mr. Reinhardt then submitted to DHEC, on March 5, 1999, an application for installation of a septic tank on Petitioner's lot. This was the first and only permit application for Petitioner's lot that was submitted to DHEC. DHEC conducted an independent evaluation of Petitioner's lot upon receiving the 1999 permit application, just as DHEC would have done in 1977 (the year it approved Edgewater Estates as a subdivision), if a permit application for Petitioner's lot had been submitted in that year. Unfortunately for Petitioner, by 1999, the regulatory standards for determining the property's suitability for a septic tank had changed; under the new standards, DHEC determined that Petitioner's property was unsuitable for a septic tank system.



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. On June 20, 1977, pursuant to Regulation 61-57, DHEC approved the Edgewater Estates subdivision on Lake Murray in Saluda County, South Carolina.

2. Prior to approving subdivisions in which septic tanks are to be used, DHEC evaluates each lot in a subdivision pursuant to regulatory standards to determine its suitability for a septic tank system.

3. DHEC's 1977 approval of Edgewater Estates was based on individual lot evaluations utilizing percolation tests to determine soil suitability.

4. Prior to 1986, DHEC relied on percolation tests in site evaluations to determine whether a site met regulatory standards for suitability. In 1986, DHEC discontinued use of percolation tests and has since required soil borings to determine soil characteristics such as color, texture and permeability, using the soil classification standards formulated by the United States Department of Agriculture. DHEC considers this technique to be the most reliable field method for soil evaluation.

5. On July 27, 1990, Petitioner and his father-in-law, Marion Johnson, entered into a contract of sale with Charles and Rosalie Still for the purchase of Lot 2 in Edgewater Estates for residential purposes. The following contingency to Petitioner's purchase of the property was listed in the contract of sale: "Perk [sic] Test To Accommodate 3 Bedroom Home." As a result of the contingency, Charles Still obtained a letter, dated June 21, 1990, from an employee of DHEC's Laurens office, Mr. Von A. Long, stating the following:

Dear Mr. Still:



In response to your request of June 13, 1990 concerning Lot 2, Edgewater Estates: Edgewater SubDivision [sic] consisting of 12 lots on Lake Murray was approved on June 20, 1977. This approval . . . assures any purchase [sic] that a septic tank will be issued on each lot assuming no radical grading or landscaping is done.(3)



7. Some time after his purchase of Lot 2 in Edgewater Estates, Petitioner's plans to improve the property and use it for a residence changed, and he eventually decided to sell the property. On February 27, 1999, Petitioner entered into a contract of sale with James and Diana Reinhardt for the sale of the property. A contingency of the sale was DHEC's issuance of a septic tank permit for the property.

8. On March 5, 1999, James Reinhardt submitted a septic tank permit application to DHEC's Saluda office. This was the first septic tank permit application for Lot 2 in Edgewater Estates to be submitted to DHEC.

9. On March 12, 1999, DHEC employee William H. Burriss, III conducted a site visit to determine if the proposed site was suitable for a septic tank. During his evaluation, Mr. Burriss observed the slope of the land, color of the soil, and rock formations. Mr. Burriss conducted three soil borings during this evaluation.

10. On April 13, 1999, Mr. Burriss returned to the site with Mr. Eric Neil, also of DHEC, for further evaluation. Mr. Burriss and Mr. Neil conducted two additional borings during this evaluation.

11. The findings from the March 12 and April 13 site evaluations 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. Mr. Burriss notified Mr. Reinhardt of his findings by letter dated April 14, 1999.

12. By letter dated May 3, 1999, Petitioner's real estate agent, Mr. Monroe Blackwell, requested a review of Mr. Burriss's findings.

13. On May 14, 1999, DHEC employees Lawrence Roberts, Jr. and Mark Marriner reevaluated the property by conducting additional soil boring tests. The resulting findings corresponded with those determined by Mr. Burriss during his March 12 and April 13 evaluations: the property's seasonal high water table is less than fifteen inches below the natural ground surface. Further, a slowly permeable clay subsoil exists over shallow rock on the property.

14. By letter dated May 21, 1999, DHEC notified Mr. Blackwell that a 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.

15. After receiving notice of DHEC's denial of the septic tank permit, Mr. Reinhardt withdrew his offer to purchase Petitioner's property. As of the date of the hearing on this matter, Petitioner's efforts to sell the property have been unsuccessful.



DISCUSSION

Petitioner does not contest DHEC's findings on the suitability of the site based on regulatory standards in effect in 1999. Rather, Petitioner asserts that it was inappropriate for DHEC to conduct an evaluation of his lot upon receipt of the permit application. Petitioner argues that the only required approval of the lot was already in DHEC's file, as the lot was inspected prior to DHEC's 1977 approval of Edgewater Estates. I disagree.

DHEC is authorized to promulgate regulations to determine the necessary prerequisites to the installation of septic tank systems on any property within the State. S.C. Code Ann. § 44-1-140(11) (1985). Regulation 61-57 states that "[a] written permit shall be obtained from the Department prior to beginning construction of . . . sewage treatment/disposal systems." 24A S.C. Code Ann. Regs. 61-57(III)(B) (emphasis added). The version of Regulation 61-57 in effect when Edgewater Estates was approved contained this same requirement. See Rules and Regulations Governing the Development of Subdivision Water Supply and Waste Disposal Systems, filed November 3, 1971, Section III(4). If DHEC considered a lot evaluation for subdivision approval purposes to be adequate for purposes of actual construction of a septic tank system on each lot, it would not have included in Regulation 61-57 the requirement that a permit be obtained for construction purposes. Cf. TNS Mills, Inc. v. South Carolina Department of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998) ("The Court must presume the legislature did not intend a futile act, but rather intended its statutes to accomplish something.").

Because DHEC included in Regulation 61-57 the requirement that a permit be obtained prior to installation of a waste disposal system, it logically follows that an independent evaluation of the lot in question must be conducted upon receiving a permit application, even if the subdivision in which the lot is located has already been approved pursuant to Regulation 61-57. See 24A S.C. Code Ann. Regs. 61-56(V)(A) (1976) (before a septic tank permit will be granted, the proposed site must meet standards set by DHEC); see also Rules and Regulations Governing Individual Waste Disposal Systems, filed April 6, 1971, Section 5(b) ("A permit to construct a septic tank . . . will be issued to the property owner if the minimum requirements as set forth in these regulations are met."). This is consistent with the testimony of DHEC employee Lawrence Roberts, Jr., who stated that, although DHEC evaluates each lot in a subdivision for purposes of subdivision approval, it also conducts an independent evaluation of any lot for which a septic tank permit application is submitted.

Therefore, DHEC's mere approval of a subdivision for the purpose of lot sales does not guarantee that DHEC will issue a septic tank permit for any individual lot in the subdivision, even though, as a prerequisite to subdivision approval, each lot in the subdivision must meet the same suitability standards which are used in evaluating individual permit applications. In most instances, a permit will be issued for a lot located in a subdivision which has been approved. However, when the accepted methodology for determining soil suitability changes after subdivision approval, a permit for an individual lot may not necessarily be issued.

In the instant case, DHEC approved the Edgewater Estates subdivision in 1977, when the version of Regulation 61-56 then in effect authorized the use of percolation tests to determine the suitability of soil conditions on a site. See Rules and Regulations Governing Individual Waste Disposal Systems, filed April 6, 1971, Section 3. By 1986, however, the method of using percolation tests to determine soil suitability had become obsolete and was no longer authorized by Regulation 61-56. See 24A S.C. Code Ann. Regs. 61-56. The first and only application for a permit to install a septic tank on Petitioner's property was not submitted until 1999. There is no question that DHEC is required to apply current regulatory standards in evaluating a site for suitability when a permit has not been previously issued for the site. Using the current methodology to evaluate Petitioner's property, DHEC determined that its soil was unsuitable for a septic tank system.

Petitioner argues that, in any event, DHEC is estopped from denying the issuance of a permit for installation of a septic tank on his property.(4) Petitioner maintains that he reasonably relied on the June 21, 1990 letter of DHEC employee Von Long to his detriment, and, therefore, DHEC should be estopped from denying the permit.

The State may be subject to the estoppel doctrine in certain cases. See 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, 238, 379 S.E.2d 442, 444 (Ct. App. 1989) (quoting South Carolina Coastal Council v. Vogel, 292 S.C. 449, 453, 357 S.E.2d 187, 189 (Ct. App. 1987)) (emphasis added). In both Service Management and Vogel, the Court of Appeals 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, Mr. Long did not have the authority to state in his 1990 letter that a septic tank permit would be issued for Petitioner's property without first conducting an evaluation of the site. Mr. Long's representation that the 1977 subdivision approval would assure issuance of a permit was based upon the incorrect assumption that the applicable regulatory standards had not changed since 1977, when in fact the standards changed in 1986.(5) Mr. Long's representation was erroneous and inconsistent with the applicable law. Therefore, DHEC cannot be estopped from denying the permit application in the present case.

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.

DHEC properly applied the current regulatory standards to the 1999 application in fulfilling its duty to maintain reasonable standards of purity of water resources of the State. Further, any prior statement made by DHEC's employee that may have led Petitioner to believe that a permit for the installation of a septic tank on his property would be issued was erroneous. Therefore, DHEC cannot be estopped from denying the 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 Petitioner's property, the soil borings reveal that the seasonal high water table is less than fifteen inches below the natural ground surface. Further, a slowly permeable clay subsoil exists over shallow rock on the property. Therefore, Petitioner's site does not meet the minimum conditions for an individual sewage treatment and disposal system under Regulation 61-56.

10. Regulation 61-57 provides that no lot may be sold in any subdivision developed after November 3, 1971 prior to DHEC's approval of the subdivision. 24A S.C. Code Ann. Regs. 61-57(III)(E) (1976).

11. If individual septic tank systems are considered for use in a subdivision, Regulation 61-57 requires that each lot in the subdivision have suitable soil conditions. 24A S.C. Code Ann. Regs. 61-57(IV)(B)(1) (1976).

12. Regulation 61-57 further provides that a written permit shall be obtained from DHEC prior to beginning construction of any sewage disposal system. 24A S.C. Code Ann. Regs. 61-57(III)(B) (1976). The version of Regulation 61-57 in effect when Edgewater Estates was approved contained this same requirement. See Rules and Regulations Governing the Development of Subdivision Water Supply and Waste Disposal Systems, filed November 3, 1971, Section III(4).

13. An independent evaluation of a lot must be conducted upon receiving a septic tank permit application, even if the subdivision in which the lot is located has already been approved pursuant to Regulation 61-57. See 24A S.C. Code Ann. Regs. 61-56(V)(A) (1976) (before a septic tank permit will be granted, the proposed site must meet standards set by DHEC); see also Rules and Regulations Governing Individual Waste Disposal Systems, filed April 6, 1971, Section 5(b) ("A permit to construct a septic tank . . . will be issued to the property owner if the minimum requirements as set forth in these regulations are met.").

14. When a septic tank permit has not been previously issued for a site, DHEC is required to apply current regulatory standards in evaluating the site for suitability.

15. The 1971 version of Regulation 61-56 authorized the use of percolation tests to determine the suitability of soil conditions on a site. See Rules and Regulations Governing Individual Waste Disposal Systems, filed April 6, 1971, Section 3. By 1986, however, the method of using percolation tests to determine soil suitability had become obsolete and was no longer authorized by Regulation 61-56. See 24A S.C. Code Ann. Regs. 61-56.

16. The State may be subject to the estoppel doctrine in certain cases. See 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).

17. 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, 238, 379 S.E.2d 442, 444 (Ct. App. 1989) (quoting South Carolina Coastal Council v. Vogel, 292 S.C. 449, 453, 357 S.E.2d 187, 189 (Ct. App. 1987)).

18. DHEC's employee, Mr. Von Long, did not have the authority to state that a septic tank permit would be issued for Petitioner's property without first conducting an evaluation of the site. Mr. Long's representation that the 1977 subdivision approval would assure issuance of a permit was based upon the incorrect assumption that the applicable regulatory standards had not changed since 1977.

20. DHEC properly denied the application for a permit to install a septic tank on Petitioner's property.



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

IT IS HEREBY ORDERED that the application for a permit to install a septic tank on Petitioner's property is DENIED.



AND IT IS SO ORDERED.





____________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



November 2, 1999

Columbia, South Carolina

1. Formerly known as Saluda Shores subdivision .

2. The regulation was amended in 1991. However, the specific provisions referenced in this Order are substantially the same as they were when DHEC approved Edgewater Estates in 1977.

3. Mr. Long is no longer an employee of DHEC. Nevertheless, Mr. Long testified at the hearing.

4. 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).

5. Even if there had been no change in the applicable regulatory standards, the issuance of the June 1990 letter to an individual contemplating a real estate transaction was ill-advised; the requirement that an independent evaluation of a lot be conducted prior to issuance of a permit, even after the subdivision in which the lot is located has been approved, prescribes a more cautious approach to communicating with the public on such matters.


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