SC Administrative Law Court Decisions

This matter comes before me upon petition for a contested case hearing filed by Petitioners Rhett and Ann Dobbins, Townville Elementary, Anderson School District Four, and Townville Recreation Association. Petitioners contest the decision of the South Carolina Department of Health and Environmental Control ("DHEC") to grant Construction Permit #18,155-AG to Michael A. Pruitt for construction of a waste treatment/collection system for a broiler facility in Oconee County. By order of this tribunal dated February 19, 1997, Intervenor/ Petitioner status was granted to Denise and John Weathers, Dolly Weeks, Frank and Becky Trutwin, Roy and Dixie Kelly, Ranny and Madaline Ramage, and Ray and Jessie Grant. A contested case hearing was held on February 27, 1997 before the Administrative Law Judge Division, pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1996). The parties presented testimony and introduced exhibits, all of which have been carefully reviewed and considered. The permit is granted.

STATEMENT OF THE CASE

DHEC issued a State Construction Permit for a broiler litter waste management system to Mr. Pruitt on August 21, 1996. The permit is necessary for Mr. Pruitt to construct a facility which will include three broiler houses and will require the treatment/disposal of approximately 586 tons of waste per year. The permit, which includes twenty-one special conditions, provides for a waste management plan and land application of the waste as fertilizer, which will consist of chicken manure, sawdust, and wood shavings from the broiler houses. Petitioners own land in the vicinity of the proposed site of Mr. Pruitt's broiler facility. At the hearing, Petitioners presented the following issues for determination:

1. Whether Mr. Pruitt complied with all applicable statutes in applying for a permit to build the broiler facility?

2. Whether DHEC has properly evaluated the potential for surface and ground water contamination which could result from the disposal of waste produced by the proposed broiler facility?

3. Whether the construction of these proposed broiler houses, in addition to the other poultry houses in the area, will significantly increase the insect problem in the area?

4. Whether the construction of the proposed broiler houses will emit such an offensive odor so as to make the surrounding houses uninhabitable?

5. Whether the construction of the proposed broiler houses will emit such an offensive odor so as to negatively impact education at the Townville Elementary School?

6. Whether DHEC is prepared to properly monitor the waste management plan for the proposed broiler facility so as to ensure compliance?

DISCUSSION

A. DHEC's Authority to Issue the Permit

The proposed project will produce animal wastes in the form of manure and dead broilers. DHEC has general responsibility for matters involving human health and environmental protection, including the handling and disposal of animal wastes, pursuant to the South Carolina Pollution Control Act, codified at S.C. Code Ann. § 48-1-10 (1987 and Supp. 1996). Persons are required to obtain approval of plans for waste disposal systems and acquire a permit for the installation or operation of disposal systems. S.C. Code Ann. § 48-1-50(l0) (1987). Accordingly, a permit to construct the proposed facility is required from DHEC, and limitations may be imposed upon the permit. S.C. Code Ann. §§ 48-1-10(4), (5), (6), and (12) (1987). The installation or operation of the disposal systems is subject to the conditions set forth in the permit. S.C. Code Ann. §§ 48-1-50(5) and 48-1-90(a) (1987).

Petitioners question whether Mr. Pruitt has complied with all applicable statutes in

applying to build the broiler facility. Petitioners have cited statutes and regulations which are not applicable to this permit, such as 24 S.C. Code Regs. 61-9 (Supp. 1996), which governs National Pollutant Discharge Elimination System (NPDES) Permits for "point source" discharges. While an NPDES permit is required for certain types of concentrated animal feeding operations, Mr. Pruitt's proposed facility and dry litter system do not require an NPDES permit.

B. Controlling Authority

In the present case, Mr. Pruitt's broiler houses will produce a substantial amount of waste in the form of manure and dead broilers. Mr. Pruitt is required to obtain approval of his plans for waste disposal systems and acquire a permit for the installation or operation of disposal systems from DHEC because this waste will be discharged into the environment. See [Pollution Control Act] S.C. Code Ann. § 48-1-10 et seq. (1987 and Supp. 1996), specifically §§ 48-1-90 and 48-1-100. DHEC is the state agency charged with administering the Pollution Control Act. S.C. Code Ann. §§ 48-1-50, 48-1-100(B) and (C).

Pursuant to the Pollution Control Act (PCA), any discharge of waste must be consistent with reasonable standards of purity of air and water resources of the State. The PCA is the controlling statutory authority dispositive of the present case. However, the PCA is very general and contains no specific standards for the construction of a waste treatment/collection system for a broiler facility. Furthermore, DHEC has not promulgated any regulations to provide specific permitting criteria for such broiler operations. Therefore, inasmuch as the construction and operation of Mr. Pruitt's broiler houses do not pose a threat to the environment or the health and welfare of the citizens of the State, the facility is not precluded under the PCA. In fact, the permit must be issued if it is not in contravention of the PCA. S.C. Code Ann. § 48-1-100(A).

In the absence of agricultural facility permitting regulations, DHEC attempts to consider all relevant factors related to the construction and operation of the proposed facility and its impact upon the citizens and environment of the State. Based upon its past permitting and enforcement experience, DHEC routinely considers a standard laundry list of factors. Those factors are included in written guidelines published by DHEC entitled "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" (April, 1985), and the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" ("agricultural guidelines") (December, 1994). However, the DHEC agricultural guidelines are not promulgated regulations. Thus, they do not have the force and effect of law, and as such are not binding. See Home Health Serv. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); See also Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983); American Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980).

C. Petitioners' Objections to the Permit

Petitioners complain that existing livestock and poultry operations in the area have contaminated neighboring lands and waters and created odor, rodent, and insect problems. Petitioners fear that the operation of yet another agricultural facility in the region will create additional problems and exacerbate existing ones. Accordingly, Petitioners object to the issuance of the permit and the construction and operation of the proposed broiler facility. Petitioners contend that construction of the broiler houses will significantly increase the airborne insect problem in the area and will emit such an offensive odor so as to make the surrounding houses uninhabitable. They further assert that the area is saturated with such facilities.

While this tribunal is sufficiently satisfied, by the evidence presented, that the proposed facility will not be harmful to the environment or the nearby neighbors, it is less satisfied that the facility will not prove to be a nuisance, per accidens (business or occupation which becomes a nuisance by reason of circumstances, location, surroundings, or manner in which it is conducted).⁽¹⁾ The evidence suggests that Mr. Pruitt's operation will occasionally emit offensive odors that will permeate the area to some degree even if it is properly managed. DHEC concedes this fact. Although the nuisance factor is prevalent throughout DHEC's agricultural guidelines, it is still a non-binding consideration, which cannot be elevated through application of the agricultural guidelines to have the full force and effect of law. See Home Health Serv. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); See also Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983); American Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980). Notwithstanding DHEC's agricultural guidelines, this tribunal does not have jurisdiction to grant relief to an action in equity, such as a nuisance claim.

As Petitioners' contentions center around the potential interference with the use and enjoyment of their property from offensive odors likely to emanate from Mr. Pruitt's operation, rather than the imposition of a threat to their health and welfare, a court of equity is the proper forum to adjudicate such a cause of action.⁽²⁾

Accordingly, this tribunal's consideration of Petitioners' opposition to the issuance of the permit is limited to issues of environmental and health protection and pollution control. Therefore, this tribunal must confine its examination only to those issues specifically related to the construction of a waste treatment and collection system for the storage and utilization of litter from Mr. Pruitt's proposed broiler facility. It is beyond the jurisdictional scope of the Administrative Law Judge Division to intervene in local zoning matters or to enjoin a potential future civil nuisance. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, 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 July 10, 1996, Mr. Pruitt filed with DHEC an Application for a Permit to Construct a Waste Treatment/Collection System and a Waste Management Plan for a broiler facility to be constructed in Oconee County, South Carolina.

2. The proposed broiler facility includes three broiler houses with packed clay floors topped by wood shavings and sawdust.

3. The site was inspected by DHEC and the Natural Resources Conservation Service (NRCS) of the U.S. Department of Agriculture.

4. A waste management plan, dated July 2, 1996, was developed for Mr. Pruitt's facility by the NRCS.

5. The NRCS waste management plan was incorporated into the permit application.

6. All adjacent property owners whose property lines fall within 1,000 feet of the proposed facility were sent notification letters of the proposed construction. Several of the adjacent property owners objected and this contested case followed.

7. The DHEC Bureau of Water Pollution Control deemed the application complete and reviewed the application and waste management plan under applicable statutes and agricultural guidelines.

8. The application and waste management plan were reviewed by the DHEC Bureau of Water Pollution Control, pursuant to the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-l -10 et seq. (1987 and Supp. 1996), and the informal guidelines compiled in the following DHEC publications: "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" (April, 1985) and the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" (December, 1994).

9. Petitioners filed objections to the proposed construction permit with DHEC.

l 0. On August 21, 1996, following review of the application and waste management plan and after consideration of Petitioners' objections, DHEC issued State Construction Permit #l8, 155-AG to Mr. Pruitt in accordance with the waste management plan prepared by NRCS, subject to twenty-one special conditions imposed by DHEC and incorporated into the proposed permit.

11. Several Petitioners were given notice by certified mail of DHEC's decision to issue the permit and were advised of their right to request a contested case hearing. Accordingly, Petitioners filed a request for a contested case hearing.

12. Upon receipt of Petitioners' Request for Contested Case Hearing, DHEC transmitted the matter to the Administrative Law Judge Division.

13. A hearing on the merits was conducted on February 27, 1997, and notice of the time, date, location, and subject matter of the hearing was given to all parties.

14. Mr. Pruitt seeks to construct three broiler houses that will house approximately 96,000 broilers per batch.

15. The proposed facility will produce approximately 6.0 batches of broilers annually.

16. The proposed operation will produce animal waste in the form of manure and dead broilers.

17. The proposed operation will produce approximately 586.0 tons of waste annually.

18. The litter will be removed from each of the houses after each flock is raised.

19. In accordance with the permit's waste management plan, litter removed from a range house must be either immediately land-applied as fertilizer or stored on site for future land application.

20. The proposed waste management plan developed for Mr. Pruitt by NRCS provides for land application of the animal wastes. Even though special condition fourteen of the permit addresses the proper method for stockpiling waste, DHEC does not require that Mr. Pruitt emplace, as a condition to the permit, the means for such stockpiling, which is a very likely eventuality. Also, special condition sixteen addresses dead broiler disposal without any specificity. The necessity for such disposal is inherent with a broiler facility. Provisions should be in place to provide a step-by-step disposal method.

21. The waste management plan requires the use of 313.4 acres of hay land, pasture, and cropland for application of the litter from the proposed broiler operation.

22. Mr. Pruitt has the use of adequate acreage for land application of the 586 tons of waste to be produced annually by his broiler facility. The property identified for land application in the waste management plan can accommodate 1440.6 tons of manure per year using the optimum application rates.

23. Petitioners Ranny and Madaline Ramage live closest to the proposed facility. Their residence is approximately 400 feet from the proposed broiler facility.

24. Petitioners Denise and John Weathers live approximately 800 feet from the proposed facility.

25. Petitioners Frank and Becky Trutwin live approximately 980 feet from the proposed broiler facility.

26. Petitioners Roy and Dixie Kelly reside more than 1000 feet from the location of the proposed broiler facility.

27. Petitioners Rhett and Ann Dobbins' residence is located approximately one third of a mile from the proposed facility and 300 yards from the Pruitt property line.

28. Petitioner Dolly Weeks' residence is located approximately 624 feet from the proposed facility.

29. Petitioners Ray and Jessie Grant's residence is located approximately 411 feet from the proposed facility.

30. The Townville Elementary School building is approximately 1900 feet from the proposed facility.

31. Petitioners oppose the issuance of the permit on the grounds that the proposed broiler facility will decrease the use and enjoyment of their property and may cause harm to the environment.

32. The permit conditions provide adequate measures to control the times and manner for land-applying the manure.

33. The permit conditions provide adequate measures for maintaining records required to be kept by the operation for monitoring by DHEC.

34. The permit conditions provide adequate measures to control future changes in the operation of the facility.

35. The permit conditions provide adequate measures to control the maintenance and operation of the facility. Also, the permit conditions provide measures to minimize and to abate potential nuisances from flies, pests, and odor. However, even if the facility is properly managed, it will likely omit offensive odors that will occasionally permeate Petitioners' community.

36. The proposed facility is a dry-litter disposal system presenting no serious risk of water pollution.

37. DHEC routinely inspects facilities to ensure compliance with the permit and waste management plan.

38. DHEC has the authority to inspect facilities in response to complaints and to require immediate abatement of nuisances.

39. DHEC has the authority to enforce compliance with the permit and waste management plan, including the imposition of administrative sanctions.

40. A permit to operate the facility must be secured by Mr. Pruitt within ninety (90) days of the completion of construction of the system.

41. The permit to operate will include the same terms and conditions as the construction permit.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following, as a matter of law:

1. The Administrative Law Judge Division has jurisdiction over the issuance of environmental permits pursuant to S.C. Code Ann. § 1-23-600(E) (Supp. 1996).

2. The standard of proof in weighing the evidence and making a decision on the merits of a contested case hearing is a preponderance of the evidence. National Health Corp. v. S.C. Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. DHEC has general responsibility over matters relating to the health of the people of the State, including the handling and disposal of animal wastes. S.C. Code Ann. § 48-1-100(C) (Supp. 1996).

4. DHEC is authorized to require a party to obtain approval of plans for disposal systems for animal wastes. S.C. Code Ann. § 48-1-50(10) (1987).

5. DHEC may grant its approval by the issuance of a permit "under such conditions as it may prescribe . . . for the installation or operation of disposal systems . . . ." S.C. Code Ann. § 48-1-50(5) (1987).

6. It is unlawful to construct or install a waste disposal system prior to approval of a waste plan and issuance of a permit by DHEC. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1996).

7. The discharge of animal wastes into the environment may only be done in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).

8. A waste disposal system includes any system for disposing of "sewage, industrial wastes or other wastes." S.C. Code Ann. § 48-1-10(12) (1987).

9. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a broiler facility. S.C. Code Ann. §§ 48-1-10(4), (5), and (6) (1987).

10. DHEC is principally charged with assuring the health and welfare of the public by controlling air and water pollution. While DHEC's authority is broad, in the absence of a duty related to the health and welfare of the public, DHEC is not charged with the responsibility of establishing the land use mix within an area. See S.C. Code Ann. § 48-1-20 (1987).

11. Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).

12. The issuance of construction permits for broiler facilities is governed by the South Carolina Pollution Control Act, codified at S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1996) (PCA). Under the PCA, it is unlawful for any person to discharge wastes into the environment of this State except as in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90 (1987).

13. The PCA requires that a permit be acquired before disposing of the waste generated by the facility. S.C. Code Ann. § 48-1-l00(A) (Supp. 1996).

14. S.C. Code Ann. § 48-1-100 (Supp. 1996) provides in part:

A person affected by the provisions of this chapter or the rules and regulations adopted by the department desiring to make a new outlet or source, for the discharge of sewage, industrial waste or other wastes, or the effluent therefrom, or air contaminants into the waters or ambient air of the State, first shall make an application to the Department for a permit to construct and a permit to discharge from the outlet or source. If after appropriate public comment procedures, as defined by department regulations, the department finds that the discharge from the proposed outlet or source will not be in contravention of provisions of this chapter, a permit to construct and a permit to discharge must be issued to the applicant.

15. S.C. Code Ann. § 48-1-30 (1987) authorizes the promulgation of regulations to implement the PCA, to govern DHEC's procedure with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure. As of this date, no regulations detailing guidelines and procedures for agricultural facility permitting and the waste disposal systems for those facilities have been adopted by the General Assembly.

16. No stated criteria or definition exists in the statute or regulation setting forth the specific factors to be considered in determining the conditions under which a permit for construction of a waste treatment/collection system for a broiler facility may or must be granted.

17. A regulatory body possesses not only expressly conferred powers but also those powers necessarily inferred or implied to enable it to effectively carry out its duties. Captain's Quarters Motor Inn v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991); City of Rock Hill v. S. C. Dep't of Health and Envtl. Control, 302 S.C. 161, 394 S.E.2d 327 (1990); Carolina Water Serv., Inc. v. S.C. Pub. Serv. Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).

18. DHEC's powers are construed liberally when the powers concern the protection of the health and welfare of the public. City of Rock Hill v. S. C. Dep't of Health and Envtl. Control, 302 S.C. 161, 394 S.E.2d 327 (1990); City of Columbia v. Bd. of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

19. In determining whether a rule should be promulgated as a regulation, courts look to the actions of the agency, not the label the agency gives. See Columbia Broadcast System, Inc. v. United States, 316 U.S. 407 (1942). Whether a particular agency proceeding announces a rule or a general policy statement depends upon whether the agency action establishes a "binding norm." Home Health Serv. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994). If the rule acts as a "binding norm" and gives the agency no discretion in its application, the rule is an invalidly enacted regulation. See Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983); American Bus Ass'n v. United States, 627 F.2d 525, 529 (1980).

20. DHEC's agricultural guidelines for the issuance of agricultural facility permits are not promulgated regulations and, therefore, do not have the force and effect of law. See Home Health Serv. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994).

21. DHEC placed special conditions in Mr. Pruitt's permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent discharges into the environment. Some of the other conditions are as follows: (1) manure cannot be stored on-site prior to land application for more than three days unless the manure is stockpiled on a concrete pad or other acceptable means and covered by black plastic; (2) manure should be land-applied only when weather and soil conditions are favorable and when prevailing winds are blowing from nearby opposite dwellings; (3) good sanitation should be practiced and leaking waters should be repaired to reduce fly problems; (4) wastes wet enough to cause fly or other problems will be removed from the houses; (5) dead broilers must be disposed of in a manner approved by DHEC; (6) cleanup of any spillage occurring during transport of the waste; (7) during land application, waste cannot be applied within 100 feet of watercourses, must be immediately spread and incorporated into floodplain areas after the danger of major runoff is past; (8) lower rates of application must be used on shallow soils to avoid groundwater contamination' and terraces or surface drains should be installed on slopes over 300 feet long to slow the movement of waste over land; and waste land-applied to cropland is to be disked in immediately. If in the future Petitioners are harmed by the operation of the facility, adequate remedies are available in the courts of this State.

22. Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,155-AG should not be issued. The permit was properly applied for by Mr. Pruitt and reviewed by DHEC under all appropriate statutes.

23. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied pursuant to the Rules of Procedure for the Administrative Law Judge Division, Rule 29(B).

ORDER

IT IS THEREFORE ORDERED that State Construction Permit #18,155-AG be issued as written to Mr. Pruitt for construction of a waste treatment/collection system for a broiler facility and that the stay of the permit is hereby vacated.

IT IS FURTHER ORDERED that the issuance of Permit #18,155-AG is conditioned on Mr. Pruitt constructing a storage facility or implementing other means acceptable to DHEC to store waste that cannot be immediately land-applied; and, DHEC shall develop a plan for the disposal of dead broilers for implementation consistent with the terms of the permit.

AND IT IS SO ORDERED.

____________________________________

JOHN D. GEATHERS

Administrative Law Judge

June 3, 1997

Columbia, South Carolina

1. O'Cain v. O'Cain, __ S.C. __, 473 S.E.2d 460, 466 (1996).

2. In a South Carolina case and cases of other jurisdictions involving nuisance cause of actions concerning poultry, hog, and cattle production, a court of equity was the initial forum. See O'Cain v. O'Cain, __ S.C.__, 473 S.E.2d 460 (1996); Weinhold v. Wolff, 555 N.W.2d 454 (1996); Durham v. Britt, 117 N.C.App. 250, 451 S.E.2d 1 (1994); Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); Griffin v. Newman, 217 Ga. 533, 123 S.E.2d 723 (1962).