ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-310
to 400 (Supp. 1998); S.C. Code Ann. §44-1-140(11) (Supp. 1998); and S.C. Code Reg. 61-56. The
Petitioner in this matter, Doris Mims (Mims), requested a contested case hearing to review the
Respondent's, South Carolina Department of Health and Environmental Control (DHEC or Department)
denial of her request to construct an individual sewage treatment and disposal system on her property.
A contested case hearing was held in this matter on February 23, 2000 at the Administrative Law Judge
Division, 1205 Pendleton Street, Columbia, South Carolina. Notice of the time, date, location, and nature of
the hearing was timely sent to all parties.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to the parties in a timely
manner.
2. The Administrative Law Judge Division has personal and subject matter jurisdiction in this matter.
3. Mims and her husband received Lot 85, Greenwood Acres, Dorchester County, South Carolina by deed
dated January 26, 1968.
4. Mims submitted an application on August 2, 1999 to the DHEC-Dorchester County Health Department
for permission to construct an individual sewage treatment and disposal system on her property in
Greenwood Estates.
5. After Mims submitted the application for a septic tank, David Struthers and Peter Dunlap,
environmentalists with the health department, inspected the property and determined there was no suitable
plan for an individual sewage treatment and disposal system installation.
6. On August 20, 1999, Struthers and Dunlap made a follow-up visit to the property and determined that no
individual sewage treatment and disposal system could be installed on the property because of a high water
table.
7. Mims made a request for an administrative appeal to the Department via a letter dated September 7, 1999.
8. After receiving Mims' request for an administrative appeal, an appeals officer notified her that he desired
to conduct an administrative review and a site evaluation to make a final staff determination concerning the
suitability of the property for an individual sewage treatment and disposal system. This final evaluation
reaffirmed the previous findings that the location was not suitable for any type of septic tank system.
9. Mim's property has a seasonal high water table less than six (6) inches below the natural ground surface.
Mim's property also has a restrictive clayey subsoil at shallow depths from one (1) to five (5) inches below
the natural ground surface.
CONCLUSIONS OF LAW
Based upon these Findings of Fact, I conclude as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction over this case pursuant to S.C.
Const. Art. 1, § 22; S.C. Code Ann. §§ 1-23-310 to 400 (Law. Co-op. 1986 and Supp. 1998); S.C. Code
Ann. § 1-23-600 (B) (Supp. 1998); and S.C. Code Ann. § 48-1-150 (Law. Co-op. 1987).
2. S.C. Code Ann. § 44-1-140 states: "The Department of Health and Environmental Control may make,
adopt, promulgate and enforce reasonable rules and regulations from time to time requiring and providing:
(11) For the regulation of the methods of disposition of garbage or sewage and any like refuse matter in or
near any village, town or city of the State, incorporated or unincorporated."
3. S.C. Code Ann. §§ 44-55-610 through 44-55-860 and Reg. 61-56 set forth the minimum soil requirements
to construct and operate an individual sewage treatment and disposal system. S.C. Code Reg. 61-56 §§
V(B) and (C) provide that DHEC may only issue a permit if "the maximum seasonal high water table
elevation is not less than six inches below the bottom of the proposed soil absorption trenches or alternates
system," and "the depth to rock and other restrictive horizons is greater than one foot below the bottom of
the proposed absorption trenches or alternate system."
4. The Department may deny an application for an individual sewage treatment and disposal system permit
when conditions of an inspected property fail to correspond with the above-stated requirements. S.C. Code
Ann. § 48-1-50(5) (Law. Co-op. 1987); see also South Carolina Dept. Of Health and Environmental Control
v. Armstrong, 293 S.C. 209, 214, 359 S.E.2d 302, 304-305 (Ct. App. 1987) (quoting Carter v. South
Carolina Coastal Council, 281 S.C. 204, 204, 314 S.E.2d 327, 329 (1984) (supporting the proposition that
DHEC may exercise the state's police power to prohibit the use of land in such a way that it endangers the
public health). All of the requirements of the Regulations must be met before a septic tank permit may be
issued. If any of the requirements cannot be satisfied, the permit application must be denied in order to
safeguard the public health and to protect the environment.
5. Mims' land is not suitable for an individual sewage treatment and disposal system because it does not meet
the minimum requirements of S.C. Code Ann. Reg. 61-56. Mims' land does not have a barrier of six inches
or more between the bottom of the proposed system's drain lines and the maximum level of the seasonal high
water table.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the South Carolina Department of Health and
Environmental Control correctly denied Mims' permit to construct an individual sewage treatment and
disposal system.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
March 23, 2000
Columbia, South Carolina |
