SC Administrative Law Court Decisions

I. STATEMENT OF THE CASE

This matter came before the Administrative Law Judge Division ("ALJD") for a contested case hearing on January 20, 2000. Stuart Lake ("Petitioner") appeals the denial of his application by the Department of Health and Environmental Control ("Department") to construct a septic tank on property in Greenwood County that he wishes to purchase.

II. FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing, and taking into account the credibility and accuracy of the evidence, I find by a preponderance of the evidence:

1. The Department granted 24A S.C. Code Ann. Regs. 61-57 (1976) subdivision approval to Freeway subdivision, phase I on June 9, 1982.

2. The Department granted R. 61-57 subdivision approval to Freeway subdivision, phase II on July 23, 1982.

3. Lots 10 and 11 are within Freeway subdivision, phase II.

4. The Petitioner submitted an application, dated February 9, 1999, to the Greenwood County Health Department seeking permission to construct a septic tank system on property he is interested in buying in the Freeway Subdivision.

5. The Petitioner is interested specifically in buying lots 10 and 11.

6. No prior applications for construction of a septic tank system had been submitted to the Department for lots 10 and 11, phase II.

7. In response to the Petitioner's application, Department personnel conducted several inspections of the property.

8. The Department inspected the property on February 16, 17, 23, 25, and April 13, 1999.

9. The Department concluded that the property was unsuitable for a septic tank system because soil conditions indicated that restrictive massive rock formations existed within twelve inches of the proposed system's drain lines.

10. The Department also concluded that the property was unsuitable for a septic tank system because a barrier of six inches or more did not exist between the bottom of the proposed system's drain lines and the maximum level of the seasonal high water table.

11. The Department concluded that the property was unsuitable for the construction of an experimental or alternate septic tank system as defined by the Department.

12. The Department denied the Petitioner's application as a result of its conclusions regarding unsuitable soil conditions on lots 10 and 11.

13. The Department informed the Petitioner of the Department's denial by letter dated April 14, 1999.

14. The Department received the Petitioner's written request for review of the initial staff decision on April 29, 1999.

15. Pursuant to Department protocol, prior to a formal hearing, staff of the Department's Onsite Wastewater Management Branch conducted an additional evaluation of the property on May 10, 1999.

16. Leonard A. Gordon, Jr.,⁽¹⁾ accompanied by Fred Payne,⁽²⁾ conducted the review.

17. In a letter dated May 27, 1999, the Department informed the Petitioner that the evaluation of Gordon and Payne confirmed the Department's previous determinations regarding the unsuitability of the lots for septic tank system construction and operation.

18. By letters dated June 10, 1999 and August 2, 1999, the Petitioner requested a contested case hearing.

19. Pursuant to S.C. Code Ann. § 1-23-600(C) (Supp. 1998), the Department transmitted the case to the ALJD.

20. A contested case hearing was held regarding this matter at the ALJD in Columbia on January 20, 2000.

21. Notice of the date, time, place, and nature of the January 20, 2000, contested case hearing was timely given to all parties.

22. Both parties were given the opportunity to file Proposed Orders.

III. DISCUSSION

At the hearing, the Petitioner raised two issues:

• whether the Department's decision to deny the Petitioner permission to construct a septic tank system on the Greenwood County property he desires to purchase is consistent with Sections 44-1-110 and 44-1-140(11), the Pollution Control Act,⁽³⁾ and R. 61-56, and whether the Petitioner relied to his detriment upon letters sent by John V. Marchi to John W. McDill in June and July of 1982; and



• whether the ALJD may order the Department to permit the Petitioner to construct and operate an experimental or alternate system that is either unauthorized or not contemplated by R. 61-56 or to grade the property to accommodate a conventional system.

A. DHEC's Denial of Petitioner's Septic Tank System Permit Application

Based upon the Petitioner's January 25th filing, he has abandoned the first issues. Therefore, no further discussion of this issue is necessary to the disposition of this matter.

B. Construction of an Experimental or Alternate System

The Petitioner stipulated to the accuracy of the Department's findings regarding the soil suitability of lots 10 and 11 during the Department's 1999 inspections. Nevertheless, the Petitioner suggested that the ALJD order the Department to permit him to construct and operate an experimental or alternate system or to permit him to grade the property to accommodate a conventional system. While the Petitioner's suggested systems or grading may be permitted in other jurisdictions, they may be either unpermitted or not contemplated by R. 61-56. Accordingly, the ALJD does not have the authority to order the Department to permit the Petitioner's pursuit of alternatives that may not comply with the Department's regulations. See Triska v. South Carolina Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987); Western Carolina Sewer Auth. v. South Carolina Dep't of Health and Envtl. Control, 98-ALJ-07-0585-CC (Sept. 22, 1999). During closing arguments, however, the Department's attorney stated that "the [Department] staff is certainly willing and able to review any type of alternate system arrangement that the Petitioner or any other property owner wants to present . . . but at the same time, the property owner must keep in mind that we are restricted by the state law as to what can actually be approved. But any type of alternate system of which they are unaware, that someone wants us to consider, we'll be happy to do that."

IV. CONCLUSIONS OF LAW

Based upon these Findings of Fact, I conclude:

1. The ALJD has subject matter jurisdiction in this action. S.C. Code Ann. §§ 1-23-310 to 1-23-400 (1986 & Supp. 1998); S.C. Code Ann. § 1-23-600(B) (Supp. 1998); S.C. Code Ann. § 48-1-150 (1987); see also 25 S.C. Code Ann. Regs. 61-72 § 201(A) (1998); S.C. Code Ann. § 48-1-50(4) (1987).

2. The ALJD Rules govern the adjudication of this matter. ALJD Rule 1.

3. Issues raised during the January 20, 2000 contested case hearing not addressed in this Order and Decision are deemed denied. ALJD Rule 29(C).

4. The Petitioner stipulated to the accuracy of the Department's findings regarding the soil suitability of lots 10 and 11.

5. In his January 25th correspondence, the Petitioner abandoned the issues of whether the Department's decision to deny the Petitioner permission to construct a septic tank system on the Greenwood County property he desires to purchase is consistent with §§ 44-1-110 and 44-1-140(11), the Pollution Control Act, and R. 61-56, and whether the Petitioner relied to his detriment upon letters sent by John V. Marchi to John W. McDill in June and July of 1982.

6. The Department is bound to follow its regulations. Triska v. South Carolina Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987); Western Carolina Sewer Auth. v. South Carolina Dep't of Health and Envtl. Control, 98-ALJ-07-0585-CC (Sept. 22, 1999).

7. The ALJD does not have the authority to order the Department to permit any activity by the Petitioner to construct and install any septic tank system that violates R. 61-56.

8. The Department should be encouraged to honor its commitment made during the hearing to review and consider an alternate system arrangement that the Petitioner may present.

V. ORDER

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

IT IS HEREBY ORDERED that the South Carolina Department of Health and Environmental Control's decision to deny Petitioner Stuart Lake's instant application to construct a septic tank system on lots 10 and 11 in the Freeway Subdivision is affirmed.

FURTHER, the South Carolina Department of Health and Environmental Control is encouraged to honor its commitment made during the hearing to review and consider, within the parameters set forth by State law, an alternate system that the Petitioner may present.

AND IT IS SO ORDERED

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

February 2, 2000

Columbia, South Carolina

1. Appeals Officer

Onsite Wastewater Management Branch

SC DHEC - Division of Environmental Health