SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 44-1-60 (Supp. 2007) and S.C. Code Ann. § 1-23-600(A) (as amended by 2008 S.C. Act No. 334).[2] Petitioners Pee Dee Indian Nation of Upper South Carolina, Carolyn Chavis Bolton, William Heustess, Monroe Heustess, Richard M. Plummer, Jr., and Nick T. McColl (collectively “Petitioners”) challenge the decision of the South Carolina Department of Health and Environmental Control (“Department”) to grant an animal feeding operation permit #19118-AG (“permit”) to Ryan Coleman (“Coleman”) for the operation of a contract hog farm.

The Petitioners are landowners who own real property adjacent to or close to the proposed site, as well as residents and users of natural resources in Dillon County. They argue that the permit should be denied based assertions that the proposed swine facility violates numerous procedural and substantive provisions of DHEC Regulation 61-43, “Standards for the Permitting of Agricultural Animal Facilities,” Part 100, “Swine Facilities,” regarding facility location and design requirements.

After notice to the parties, the court held a hearing on September 18-20, 25, 2007. All parties appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all of the evidence, the court finds that Coleman’s permit should be denied.

MOTION TO DISMISS

On September 25, 2007, after the Petitioners rested their case and part way through the Department’s presentation of evidence, the Department filed a motion to dismiss Petitioners Carolyn Chavis Bolton, William Heustess, Monroe Heustess, Richard M. Plummer, Jr., and Nick T. McColl as parties to this matter. The basis for the Department’s motion was the fact that those particular petitioners did not file a request for a final review conference pursuant to S.C. Code Ann. § 44-1-60(E) after the Department notified the concerned citizens who filed comments during the review period that it was issuing the permit to Coleman. Accordingly, the Department asserts that Petitioners Carolyn Chavis Bolton, William Heustess, Monroe Heustess, Richard M. Plummer, Jr., and Nick T. McColl are not proper parties to this action because they failed to exhaust their administrative remedies.

In response, the Petitioners argue that the Department’s motion is untimely. On June 4, 2007, the court issued a scheduling order requiring that all motions, other than motions in limine, be filed by August 6, 2007. The Department did not file its motion to dismiss until over halfway through the contested case hearing of this matter. Furthermore, the Department has not supplied the court with any reason for failing to file this motion by the deadline. The facts and circumstances argued by the Department were readily available throughout the pendency of this case. The Department contends, however, that its motion is jurisdictional and therefore can be raised at any time in the proceeding.

Lack of subject matter jurisdiction may be raised at anytime during a proceeding and may not be waived. Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 632, 622 S.E.2d 733, 743-44 (Ct. App. 2005), reh’g denied (Dec. 15, 2005), cert. granted (Jan 31, 2007). Subject matter jurisdiction refers to the court’s “power to hear and determine cases of the general class to which the proceedings in question belong.” Majors v. S.C. Securities Comm’n, 373 S.C. 153, 159, 644 S.E.2d 710, 713 (2007); Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994).

While the requirement of exhaustion of administrative remedies is “jurisdictional,” it is not the court’s subject matter jurisdiction that is implicated. Eagle Container Co., LLC, 366 S.C. at 633, 622 S.E.2d at 744 (“[T]he failure to exhaust administrative remedies goes to the prematurity of a case, not subject matter jurisdiction.”) (quoting Ward v. State, 343 S.C. 14, 17 n.5, 538 S.E.2d 245, 246 n.5 (2000)). Accordingly, the question with regard to unexhausted administrative remedies is not whether subject matter jurisdiction exists, but whether the court’s jurisdiction was properly invoked. Proper invocation of jurisdiction may require compliance with statutory conditions precedent—including, for example, statutory deadlines or the exhaustion of administrative remedies. Good v. Kennedy, 291 S.C. 204, 207, 352 S.E.2d 708, 711 (Ct. App. 1987) (stating that a statutory condition precedent is jurisdictional). Unlike subject matter jurisdiction, compliance with a statutory condition precedent may be waivable. See King v. Atl. Coast Line R.R. Co., 86 S.C. 510, ___, 68 S.E. 769, 770 (1910) (finding that the filing of a claim with the individual prescribed by statute was a statutory condition precedent and could be waived).

Pee Dee Indian Nation of Upper South Carolina properly invoked the jurisdiction of the ALC by following required procedures and statutory precedents. This matter was filed on March 20, 2007, and the Department did not raise the issue of failure to exhaust administrative remedies with regard to the remaining Petitioners until September 25, 2007, the final day of the four-day hearing, even though the information was readily available. Accordingly, the court finds that although the individual petitioners did not comply with a statutory prerequisite to file a contested case at the ALC and would have been properly dismissed as parties had that point been timely raised, the Department has waived the failure of the individual petitioners to exhaust their administrative remedies.

Moreover, in the particular procedural posture of this case, the failure of the individual petitioners to request a final review conference is not fatal. Because the jurisdiction of this court was properly invoked by Pee Dee Indian Nation of Upper South Carolina, the deficiency of the individual petitioners in failing to request a final review conference could be remedied in this matter by intervention. Since Pee Dee Indian Nation of Upper South Carolina properly followed all procedures and statutory conditions precedent to bring this matter before the ALC, the individual petitioners could be permitted to intervene as proper parties pursuant to ALC Rule 20.[3] Under South Carolina law, a procedural defect that can be easily remedied need not result in dismissal of a matter. See McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987) (recognizing “an overriding rule of civil procedure which says: whatever doesn’t make any difference, doesn’t matter”). Accordingly, the Department’s motion to dismiss Petitioners Chavis Bolton, William Heustess, Monroe Heustess, Richard M. Plummer, Jr., and Nick T. McColl as parties to this matter is denied.

FINDINGS OF FACT

At the contested case hearing, the Petitioners presented the testimony of several of the local residents and provided expert testimony concerning the proposed swine farm’s design and the impact it will have on the area. Respondent Coleman called no witnesses to testify in support of his application and offered no exhibits into evidence. The Department presented several staff witnesses in support of its decision to approve the permit. It did not seek to qualify any of the Department witnesses as experts.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence.

On February 7, 2005, Coleman, the owner and operator of Oak Ridge Swine Farm, filed an application (“Application”) and an Animal Facility Management Plan entitled Comprehensive Nutrient Management Plan (“Management Plan”) for the construction of four swine houses at a proposed site located in rural Dillon County. Before filing the Application, Coleman requested a preliminary site inspection, which was conducted by William F. Stokes, an employee of the Department’s Florence Regional Office on August 28, 2003. Based on the results of that inspection, Stokes notified Coleman in writing on September 3, 2003 that the site appeared to be suitable for a swine facility, and that Coleman could proceed with the planning and design of his facility. The letter also summarized the information that was required to obtain an Agricultural Feeding Operation Permit.

Also prior to filing the Application, Coleman notified all property owners within 1,320 feet of the proposed facility of his intent to apply for an agricultural permit by mailing an Agricultural Facility Public Notice of Intent to Apply for an Agricultural Permit form to each owner. In response to comments from community members opposed to the proposed facility, the Department held a public hearing on May 12, 2005 at Dillon High School in Dillon, South Carolina. During the hearing and after the hearing, the Department accepted written comments regarding the Application.

Brett Caswell, an environmental engineer associate employed by the Department in the Bureau of Water, reviewed the permit application for the Ryan Coleman facility. Caswell approved the application based upon his determination that the facility and the application met the applicable regulations. Caswell is not licensed as a professional engineer, but has passed his Engineer-in-Training examination.

The Management Plan was prepared by employees of the United States Department of Agriculture, National Resources Conservation Service (“NRCS”) in Dillon, South Carolina. The Management Plan is divided into sections, such as manure and wastewater handling and storage, land treatment practices, operation and maintenance, and record keeping. It also contains numerous maps and a site plan. The third page of the Management Plan contains signatures of various employees of NRCS. The signature page states that they have “assisted with the development of the [Management Plan] and certify[] that their element meets all applicable NRCS standards.” (Respt.’s Ex. 3). Caswell testified that the “Manure and Wastewater Handling and Storage” section as well as the “Nutrient Management” portions of the Management Plan were certified by two NRCS engineers. Caswell further stated that the Department interprets signatures on this page to apply to their respective portions of the Management Plan. Henry Gibson, a retired Department employee who consulted with Department staff regarding the permit, supported this position.

The proposed facility will be located in an agricultural area. The fields of the proposed facility are intersected by several watercourses and are divided by a dirt road, Cottingham Drive. Surrounding the southern end of the property is Wash Branch[4] and adjacent to the property is Sweat Swamp. Both of these watercourses drain into the Little Pee Dee River watershed, which is impaired for fecal coliform, a bacterial contaminant. Furthermore, a culvert that flows into Wash Branch runs along Cottingham Drive. The fields slope from between six to two percent from the site of the manure storage pond toward the culvert. The fields consist of Dothan soil and Coxville soil, which is porous and sandy.

The proposed facility will consist of four swine houses that hold a maximum of 3,520 animals at a time. Its normal production live weight is 492,800 pounds. The proposed facility will treat the manure generated by the animals on site by land application in accordance with the schedules and requirements contained in the Management Plan and the conditions attached to the permit. The proposed facility has approximately 81 acres available for land application. It proposes to have a manure storage pond (also referred to in the industry as a “lagoon”) designed to hold 260,000 cubic feet, a capacity based on 150 days of waste storage plus water, normal rainfall and a 25-year storm, plus two feet of freeboard, for a total capacity equivalent to 2.9 million gallons of hog waste per year. This waste is to be land applied with a traveling gun spray irrigation system and “honey wagon”[5] waste transport carts as a “backup.”

The testimony presented at trial regarding the construction of the manure storage pond conflicted. The parties agree that the plans propose a lagoon with a synthetic liner and a secondary dike in the event that the primary lagoon overflows. The Respondents assert that the base of the manure storage pond will consist of packed clay, which acts as a natural liner under the synthetic liner. However, nowhere in the Application or the Management Plan is there mention of a packed clay liner.

Furthermore, the Respondents introduced a site plan that differed from the one contained in the Management Plan. (See Respt.’s Ex. 29). This plan provides for different dimensions for the manure storage pond than the original Application contained.[6] The newer plan appears to be
prepared by Murphy Brown, LLC, the integrator[7] for the proposed facility, and is dated May 24, 2005. Caswell testified that NRCS staff provided him with the updated plan. He stated that it is the Department’s position that the new plans remain certified by NRCS even though there are no signatures on the plan and he was unable to identify the initials listed for “approved by” and “drawn by.”

The footprint of the lagoon and land application sites for the proposed facility propose only minimum regulatory setbacks, including the absolute minimum setback from the animal growing areas from the Waters of the State[8] and from ditches and swales draining to the Waters of the State. The proposed lagoon design is such that, in approving the permit, the Department granted the applicant a waiver of the minimum regulatory setback of the storage lagoon from the Waters of the State. Hence, the nearest point of the storage lagoon to Waters of the State is only 360 feet rather than 500 feet.[9]

The nearest point source discharge is located 12.58 miles by land downstream of the proposed facility. The nearest water quality monitoring station is PD-029E, located in the Little Pee Dee River 6.3 miles by land downstream from the facility. The station is impaired based on the presence of fecal coliform bacteria. The nearest surface water intake for drinking water is operated by the Grand Strand Water & Sewer Authority and is located 64.92 miles by land downstream of the proposed facility. The facility is not located in a State-Approved Water Protection Area. The nearest public groundwater supply well is 2.13 miles from the proposed facility. The proposed facility, manure storage pond, and manure utilization areas are all located more than 28 miles outside the federally established flood plain. The proposed facility and its manure utilization areas are not located in a Historic Preservation District, State or National Park, Forest State Designated Area, or State or Federal Research Area.

Several nearby residents testified in opposition to the permit. Based on the evidence presented by the petitioners and nearby landowners, the court finds that many of the nearby residents utilize shallow personal drinking wells. The petitioners collectively expressed concerns that the discharge from the hog farm may contaminate their drinking wells. They also expressed concern over the odors that emanate from swine facilities in general and the effect that this facility will have on the use and enjoyment of their land. Finally, several of the individual petitioners expressed fears of further contamination of the Little Pee Dee River and the impact it will have on the overall community.

The Petitioners also presented several experts who testified about the proposed facility’s design and impact. Dr. David Freedman is a professor of Environmental Engineering and Science at Clemson University. Dr. Freedman is an expert on the environmental impacts of swine facilities, including questions of water quality, movement of contaminants through the soil, the design and operation of waste treatment and manure management systems, and air pollution from such facilities. In Dr. Freedman’s opinion, the Application and accompanying materials are incomplete or deficient in the following areas: (1) the justification for the waiver of the pond setback from the Waters of the State; (2) the prevention of increases in water and air pollution from the facility; (3) the use of a manure management alternative with the least adverse impact on the environment or the best available technology economically achievable; (4) the cumulative impacts on water quality of this and other swine facilities in the area; (5) the use of alternative manure management methods in impaired or nutrient-sensitive watersheds; and (6) plan specifications with supporting details and design calculations for the waste spray application system. Dr. Freedman opined that the facility as designed in the Application fails to meet the regulatory requirements for waiver of the manure storage pond setback from the Waters of the State.

Dr. Freedman specifically testified that the proposed single liner design for the manure storage pond is not adequate to guarantee that waste from the lagoon will “never” reach the Waters of the State, and therefore does not meet the required regulations for such a waiver. Dr. Freedman found no evidence that such a liner would never leak. The liner for the proposed facility is to be installed in sections that must be welded together at the proposed facility. These joints are one of the places where leaks can develop. Dr. Freedman further stated that there are other liner designs that pose less risk of discharge. He testified that the probability that the waste will make its way to the Waters of the State is extremely high, based on the fact that the depth to groundwater at the site is very shallow, and because some of the soils are sandy. Sandy soil may permit contaminants in groundwater to migrate easily down to the underlying clay and then move horizontally, where they would discharge into the adjoining creeks and then into the Little Pee Dee River.

Further, Dr. Freedman testified that the portions of the liner above the liquid waste level that are exposed to the sun will be subject to deterioration and cracking from ultraviolet radiation, which can result in manure leaks through the liner and into the soil.

The proposed facility’s construction calls for a plumbing system, constructed of concrete, to connect the swine-growing barns to the waste storage lagoon, allowing the flushing of swine waste with the assistance of gravity to flow from below the slotted floors on which the hogs live to the storage lagoon. Cracks in the concrete over which the waste flows or leaks are potential pathways for swine waste to enter groundwater. There are no specifications in the plans to seal the concrete to mitigate this potential leakage.

The Application contains an Emergency Action Plan that acknowledges a number of waste-management system failure modes, including lagoon overflow, runoff from waste-application fields, leakage from waste pipes and sprinklers, leakage from the flushing system or the housing and solid separators, and leakage from the base or sidewall of the lagoon. In Dr. Freedman’s opinion, the plans for the proposed facility also fail to properly provide for the placement of groundwater monitoring wells because there was no prior determination of the direction of groundwater flow. He testified that the proposed facility’s design calls for only a single well on each side of the lagoon and that there is a reasonable likelihood that a very narrow plume of groundwater contamination from a small liner leak will escape detection without adequate well spacing. In addition, he stated that the permit requirement for only annual well sampling is not adequate to ensure that waste contaminants never reach the Waters of the State.

The secondary dike lagoon is to be of identical design as the primary dike. Accordingly, in Dr. Freedman’s opinion, the same events that might cause a failure of the primary dike would have an equal likelihood of causing failure in the secondary dike.

In Dr. Freedman’s opinion, the open lagoon sprayfield technology proposed does not represent the manure management technology with the least adverse impact on the environment, nor does it represent the best available technology economically achievable. Furthermore, Dr. Freedman testified that the open lagoon sprayfield design proposed here will increase air and water pollution. The American Society of Agricultural Engineers has published a list of known contaminants that are released from swine waste storage lagoons, including hydrogen sulfide, ammonia, and a large number of sulfurous compounds called mercaptans. Mercaptans are malodorous compounds, detectable at extremely low concentrations. Other extremely bad-smelling compounds in decomposing animal manure include volatile fatty acids such as acetic, propionic, butyric, isobutyric, and isovaleric acids. Methane will also be emitted from the lagoon at the proposed facility.

Dr. Freedman also opined that the proposed facility setbacks from the neighboring church are inadequate to protect it from nuisance odors. Given the unusually high incidence of temperature inversions and air stagnation in this part of the state, due to meteorological conditions associated with the location of the Appalachian Mountains and the Atlantic Ocean, air pollution and odors travel horizontally rather than vertically and can move significant distances.

Dr. Freedman believes that the setback on the southeastern corner of the sprayfield adjacent to the dirt road, Cottingham Drive, is inadequate. A culvert along that road adjoins the sprayfield so that any runoff from the field will enter the ditch, which drains directly to the nearby creek. Any hog waste, which is high in fecal coliform, that enters the creek has a chance of traveling downstream to the monitoring station located on the Little Pee Dee River, which is already impaired for fecal coliform.

In Dr. Freedman’s opinion, there will be an adverse cumulative impact on water quality in the area from this facility in light of the many other swine facilities already in the area. Murphy Brown, the integrator of this location, reported that it has 52 facilities under contract in South Carolina, for a total of 229,146 swine. Fourteen of these facilities are in Dillon County. Each time a new facility is added, nutrients and other pollutants are added to the watershed.

The Petitioners also offered the testimony and opinions of Dr. Steven B. Wing, an associate professor of Epidemiology in the School of Public Health at the University of North Carolina–Chapel Hill. The court qualified Dr. Wing as an expert on the environmental and human health effects of the proposed facility. The Respondents offered no evidence regarding the human health effects of swine farms generally or the proposed facility specifically.

Dr. Wing conducted a field study in which he found that residents around swine facilities reported an excess occurrence of several respiratory and gastro-intestinal symptoms, including headaches, excessive coughing, runny nose, vomiting, mucus-membrane irritation, and irritation of the eyes and nose. They also reported excess times when they were unable to open their windows or even go outside during nice weather. The study was published in a peer-reviewed scientific journal of the National Institute of Environmental Health Sciences, Environmental Health Perspectives.

Another study by Dr. Wing was published in the peer-reviewed journal, Archives of Environmental Health. This study found that for each increase in the concentration of hydrogen sulfide, there was an increase in the odor level reported.

Dr. Wing discussed four general sources of air pollution from a swine facility. One source is the swine-confinement buildings designed to ventilate air pollutants to protect the health and growth rate of the animals. Large fans blow dust and gasses into the outside environment. Dust includes dander or decayed skin from the hogs, as well as dried feces. Antibiotic-resistant bacteria are also a part of the organic dust from the building. The shells of certain bacteria, endotoxins, cause inflammation of the airways, which are also emitted from the building. The second source of air pollution is the fecal-waste pits or storage lagoons where waste undergoes anaerobic decomposition producing chemicals such as ammonia, hydrogen sulfide, and methane, as well as many chemicals that have high odorant capacity, including acids, mercaptans, and cresols. A third source is the spray fields. Large versions of a common lawn sprayer are used to spray a mixture of feces, urine, and the water used to flush the barns, as well as the chemicals produced during the anaerobic decomposition. These create air pollution when sprayed. The fourth source is from swine deaths. Carcasses may be stored onsite for fairly long periods of time, during which time they begin to decompose. In Dr. Wing’s opinion, the proposed facility would increase the air pollution, and will be injurious to human health.

Published studies in medical literature document that workers in animal confinement buildings that are exposed to the gasses and particulates experience very well-defined deficits in respiratory function and symptoms. Particularly, the workers experience a condition called organic toxic dust syndrome, a flu-like condition.

Francis Laval Green also testified on behalf of the Petitioners. Green is employed as a technical assistance provider for the Rural Community Assistance Project of Roanoke, Virginia. Green worked as the first Department District Director for the Pee Dee region, including Dillon County. The court qualified Green as an expert in the environmental effects of swine facilities, including water quality; the movement of contaminants through the soil; and the design and operation of waste treatment systems, including the aerobic and anaerobic treatment of waste. Based on Green’s experience with the Department, plans for a waste treatment facility would need a professional engineer’s signature, which the proposed facility’s design plan does not have.

Green testified that the design drawing notes in the Application for the soil element upon which the liner is to be installed fail to include the term “clay.” Merely compacting a layer of soil that does not have a clay or colloidal fraction will not provide the barrier to moisture movement that clay has. In Green’s opinion, the design specification in the Application will not provide an adequate barrier for waste movement into groundwater. Proper specifications should include a number of elements that are absent from the proposed design, including excavation of the site down to mineral soil; selection of suitable clay borrow material; and testing of such material to assure proper liquid limits, plasticity, and grain size. He recommended that a lab test should be performed to establish that the clay material meets compaction and density specifications, and that installation should then include field verification of such density and compaction specifications. Tighter clay has a conductivity that is a thousand times less than sand.

Green testified that the soil in the proposed facility’s site is too close to sensitive areas and that the facility should be located as far as possible from streams so as to mitigate the possibility of waste flowing into the streams. The soil in that area has a water table that could be right at the surface during wet winter periods. If there were a spill or leakage during the late fall to late spring, when the ground is wetter from greater rainfall, waste would flow to Wash Branch or Sweat Swamp either on the surface or through the groundwater. In Green’s opinion, the Department should not relax the setback requirements for this proposed site; rather, the Department should require the maximum setbacks. Further, Green testified that the proposed manure storage pond liner system is inadequate to prevent hog waste from ever entering groundwater at the site and migrating to Waters of the State.

The Department presented several staff witnesses in support of its decision to approve the permit. William F. Stokes was formerly the Department regional agricultural inspector until his retirement. He conducted the preliminary site inspection of the proposed facility in 2003. Stokes made no measurements, but rather relied on a county tax map and ruler to estimate the setback distances. At the time of this preliminary visit, Stokes did not know that the lagoon could not meet the minimum regulatory setback of 500 feet from the Waters of the State. This preliminary inspection did not include soil borings or an analysis of whether the lagoon could meet the minimum separation from the seasonal high water table.

Paul C. Martin is employed by the Department’s Bureau of Air Quality (“BAQ”). Martin initially assessed the proposed facility as a poultry facility with a dry manure management system, rather than a swine facility with a wet lagoon and sprayfield system. The permit was issued based on Martin’s assessment of the air pollution potentially produced by a dry poultry facility. Martin testified that in July 2007, after the permit had been granted by the Department, the proposed location was re-assessed as a swine facility and approved.

Martin testified that ammonia, nitrous oxide, and methane are not regulated under state or federal law as either criteria pollutants or air toxic pollutants. Documents from the Environmental Protection Agency (“EPA”) indicate that particulate matter emitted from animal feeding operations would be negligible and below the Department’s threshold of one pound per hour for industrial sources of air emissions. Hydrogen sulfide would be the only other regulated pollutant emitted from animal production operations using a wet manure system. At this time, neither South Carolina nor the EPA has established an air quality modeling and permitting program for animal feeding operations. Therefore, “documentation concerning air quality impacts at swine finishing operations remains very limited in both breadth and scope.” (Respt.’s Ex. 24).

Martin further testified that the BAQ ran a trial study by imputing information regarding the proposed facility into the federal EPA AERMOD dispersion modeling system program using emissions factors from academia and the Iowa Department of Natural Resources (“Iowa DNR”) in lieu of official emission factors from the EPA or the state of South Carolina. (See Respt.’s Ex. 24). According to the report by the Iowa DNR, a passive-ventilated swine finishing operation would generate approximately 7.7 x 10⁶ grams-per-second of hydrogen sulfide per animal. Applying this rate to the facts in the Application—and (1) assuming a standard temperature of 70 degrees Fahrenheit and no building wash-down, and (2) applying standard terrain-based industrial receptors at fifty meters along the property boundary, 100 to 500 meters, and 250 to 1000 meters—the model produced a maximum 24-hour concentration of hydrogen sulfide of 1.24 micrograms per cubic meter at the property-line receptor closest to the houses. This concentration is significantly below South Carolina’s ambient air toxic standard of 140.00 micrograms per cubit meter for hydrogen sulfide. Further, Martin testified that PM₁₀ (particulate matter ten) is regulated on a statewide basis and that no area in the state is currently out of attainment. Based on this, Martin testified that under the relevant state and federal environmental standards the BAQ determined that none of the ambient air standards would be exceeded as a result of permitting the proposed facility and that no additional requirements or setback distances were necessary to meet any air quality issues.

The Department also offered the testimony of John W. Wright.[10] Wright is employed by the Department in the Bureau of Water, Groundwater Quality Section. In February 2006, Wright visited the proposed facility site and noted from the soil maps and based on some excavation tests that the seasonal high water table is relatively shallow at the site. Accordingly, Wright determined that the initial dead animal burial site could not meet the two-foot separation requirement from the shallow high water table. Wright considered a new burial location for emergencies and found it to be marginal, stating that groundwater monitoring would be required if it were used for mass burial. He therefore recommended use of an offsite rendering service for dead animal disposal.

Viewing the totality of the evidence presented by the parties, the court finds the documents and testimony presented by the Petitioners to be compelling and finds that the design of the facility and the Application are flawed in certain ways. The evidence of the Department witnesses, who were not offered as experts and whose experience and qualifications in any event do not equal those of the Petitioners’ experts in the specific fields pertinent to environmental impacts of swine farming, are insufficient to overcome the evidence presented by the Petitioners. Based on the collective testimony of the Petitioners’ experts, the court finds that the lagoon as designed does not ensure that discharge will never enter the Waters of the State.

LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. Jurisdiction and Review

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 1-23-600(A) (as amended by 2008 S.C. Act No. 334) and S.C. Code Ann. § 44-1-60 (Supp. 2007). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990). In presiding over this contested case, the court serves as the finder of fact and makes a de novo determination regarding the matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2007); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).

The Petitioners, as the parties challenging the Department’s decision to issue the permit in this matter, bear of the burden of proof. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue). Therefore, the Petitioners must demonstrate by a preponderance of the evidence that the Department’s decision to grant the permit at issue is contrary to the applicable regulatory criteria. S.C. Code Ann. § 1-23-600(A)(6) (as amended by 2008 S.C. Act No. 334); see also Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

2. Swine Farms

The permitting of swine facilities is governed by the Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (2008), and the Confined Swine Feeding Operations Act, S.C. Code Ann. § 47-20-165 (Supp. 2007). Under the Pollution Control Act, the Department is charged with abating, controlling, and preventing pollution by maintaining “reasonable standards of purity of the air and water resources of the State, consistent with the public health, safety and welfare of its citizens, maximum employment, the industrial development of the State, the propagation and protection of terrestrial and marine flora and fauna, and the protection of physical property and other resources.” S.C. Code Ann. § 48-1-20 (2008). The Confined Swine Feeding Operations Act, which was enacted in 1996 to authorize the Department to develop a comprehensive regulatory scheme for the permitting of swine facilities, also requires that the regulations promulgated therefrom “shall be based upon an evaluation of the impact upon the interests of the environment and agribusiness.” S.C. Code Ann. § 47-20-165(D)(2) (Supp. 2007).

The regulations promulgated pursuant to S.C. Code Ann. § 48-20-165 are contained in 24A S.C. Code Ann. Regs. 61-43, Part 100 (Supp. 2007) (“Part 100”). Part 100 details requirements for the permit application and Department review; it also provides requirements for the location and operation of the facility in general. Specifically at issue in this matter are the provisions dealing with Department review, the siting of the manure storage lagoon and the sprayfields, and potential discharge from the facility.

Regulation 61-43 defines a swine facility as

an agricultural facility where swine are confined and fed or maintained for a total of forty-five days or more in a twelve-month period and crops, vegetative, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. Structures used for the storage of swine manure from swine in the operation also are part of the swine facility.

24A S.C. Code Ann. Regs. 61-43, Part 50(NNN) (Supp. 2007). Furthermore, since the proposed facility’s normal production live weight is 492,800 pounds, the proposed swine facility is classified as a Small Swine Facility. See S.C. Code Ann. Regs. 61-43, Part 50(III). The regulations require that “[t]he lagoon, treatment system, or manure storage pond shall be designed by a professional engineer or a NRCS engineer and the construction shall be certified by the design engineer.” 24A S.C. Code Ann. Regs. 61-43, Part 100.90(A) (Supp. 2007).

The regulations provide that at a minimum, a swine facility—excluding the lagoon, treatment system, manure storage pond, or manure utilization areas—must be 200 feet from a potable well. Further, the regulations require that a lagoon, treatment system, manure storage pond, or manure utilization areas must be five hundred feet from a public or private human drinking water well. 24A S.C. Code Ann. Regs. 61-43, Part 100.80(A)(1) & (2) (Supp. 2007). A small swine lagoon, treatment system, or manure storage pond must be at least five hundred feet from Waters of the State.[11] 24A S.C. Code Ann. Regs. 61-43, Part 100.80(A)(7) (Supp. 2007). However, this distance may be reduced by up to two hundred feet if “the permittee implements a design to control the discharge from a failed lagoon, treatment system or manure storage pond so that it never enters waters of the State and the designer, either a NRCS employee or a registered engineer, certifies that the system has been constructed as specified.” 24A S.C. Code Ann. Regs. 61-43, Part 100.80(A)(9) (Supp. 2007) (emphasis added). The Department may increase the minimum setback requirements on a case-by-case basis. 24A S.C. Code Ann. Regs. 61-43, Part 100.80(G) (Supp. 2007). In determining whether to increase the setbacks, the Department is to consider various factors such as geography and soil types on the site, classification or impairment of adjacent waters, location in a watershed, and slope of the land. 24A S.C. Code Ann. Regs. 61-43, Part 100.70(H) (Supp. 2007).

Additionally, when determining whether to issue a permit for a swine facility, the Department must consider the cumulative impacts of the facility. 24A S.C. Code Ann. Regs. 61-43 Part 100.70(E) (Supp. 2007). The Department must reasonably seek “to prevent . . . an increase in pollution of the waters and air of the State from any new . . . sources.” 24A S.C. Code Ann. Regs. 61-43 Part 100.70(F) (Supp. 2007). Furthermore, the Department shall act “so as to prevent degradation of water quality due to the cumulative and secondary effects of permit decisions.” 24A S.C. Code Ann. Regs. 61-43 Part 100.70(G) (Supp. 2007). Department “permit decisions shall ensure that the swine facility and manure treatment and utilization alternative with the least adverse impact on the environment be utilized.” Id. However, small swine facilities are only required to “use the best available technology economically achievable for the handling, storage, processing, treatment, and utilization of manure.” Id. (emphasis added).

3. Conclusions

a. Waiver of the Setback from the Manure Storage Pond to Waters of the State

The Petitioners contend that the Department violated several provisions of Regulation 61-43, Part 100, in its approval of the siting of Coleman’s facility. Specifically, the Petitioners challenge the proximity of the swine lagoon to Waters of the State. As stated above, swine lagoons must be at least five hundred feet from Waters of the State. The distance may be reduced by up to two hundred feet only if “the permittee implements a design to control the discharge from a failed lagoon, treatment system or manure storage pond so that it never enters waters of the State . . . .” 24A S.C. Code Ann. Regs. 61-43, Part 100.80(A)(7), (9) (Supp. 2007) (emphasis added).

As designed, the lagoon at the proposed facility will be less than 500 feet from Waters of the State. The Department granted this waiver based on the fact that swine facilities are classified as “no discharge facilities” and because the lagoon’s design calls for a synthetic liner rather than merely a compacted dirt liner. The Petitioners’ experts assert that synthetic liners may develop leaks through faulty seams, from sun damage, or from the agitator and that once these leaks develop, the discharge will quickly flow to the Waters of the State based on the sandy composition of the soil and the flow patterns. Accordingly, they assert that not only is there no proof that the discharge will never enter the Waters of the State, it is likely that discharge will enter Waters of the State.

In response, the Department first contends that a leak in a synthetic liner is highly unlikely and, if one develops, the base of the lagoon will consist of compacted clay preventing discharge from flowing to Waters of the State. Second, the Department asserts that “never” does not actually mean “never” when read with the entire regulatory scheme because other sections acknowledge that some leakage will occur. The Department believes that zero leakage is a goal rather than a requirement. The testimony of Department employees formed the bases of their contentions.

The court concludes that Petitioners have proven by a preponderance of the evidence that discharge from the swine lagoon for the Coleman facility as designed may enter Waters of the State. Accordingly, the lagoon design does not satisfy the requirements of Regulation 61-43, Part 100.80(A)(9). The Petitioners presented the testimony of multiple experts establishing that it is likely that discharge will reach Waters of the State. See Berkeley Elec. Coop., Inc. v. S.C. Public Serv. Comm’n, 304 S.C. 15, 20, 402 S.E.2d 674, 677 (“Where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative value.”). Furthermore, the Department’s argument that “never” does not actually mean never is without merit. The dictionary defines “never” as: not ever, at no time, not in any degree, and not under any condition. Merriam-Webster, http://www.merriam-webster.com/dictionary/ never (last visited Aug. 13, 2008). While the Department is correct that at least one section of the regulatory scheme for swine farms indicates that minor discharge is allowed, see 24A S.C. Code Ann. Regs. 61-43, Part 100.90(C) (Supp. 2007), this section does not encompass swine farms where the setbacks have been reduced. The setbacks in the regulations serve as a buffer to prevent discharge from entering the Waters of the State. When the setbacks are reduced, the regulations clearly require a more stringent standard. The court therefore concludes that the word “never” in the regulation means precisely what it says. Wade v. State, 348 S.C. 255, 559 S.E.2d 843 (2002) (stating that a “court must apply the plain meaning of a statute where its language is unambiguous and conveys a clear meaning” unless the statute’s interpretation leads “to absurd results not intended by the Legislature”) (internal citations omitted); Neal v. Brown, 374 S.C. 641, 649 S.E.2d 164 (Ct. App. 2007) (stating that “[i]f a statute's terms are clear, the court must apply the terms according to their literal meaning” unless “it would lead to a result so plainly absurd that it could not possibly have been intended by the Legislature”) (internal citations omitted).

Furthermore, the court concludes that the Petitioners proved that it is more likely than not that the updated design plans were not designed by an NRCS engineer or a professional engineer as required by 24A S.C. Code Ann. Regs. 61-43, Part 100.90(A) (Supp. 2007). Caswell testified that he received these plans from someone at NRCS; however, the plans indicate that they were prepared by the integrator, Murphy Brown, LLC. Additionally, they do not contain the signature of an identifiable professional engineer or NRCS engineer; rather, they contain initials that no witness was able to identify. Accordingly, the court cannot determine who actually designed the updated lagoon plans. Caswell’s testimony that he received them from NRCS is insufficient for this court to find that the plans satisfy the regulatory standard.

b. Water Quality, Air Quality, and Odor

The Petitioners also assert that the proposed site provides inadequate separation distances or other conditions necessary to protect downwind receptors, as well as surface and groundwater, from increases in air and water pollution and nuisance odors. In support of their argument, the Petitioners offered expert testimony. The experts testified that swine facilities release contaminants into the air, such as hydrogen sulfide, ammonia, and mercaptens, which will cause the neighboring residents to experience nuisance odors and increase air pollution. Further, the experts stated that runoff from the sprayfields will flow in the nearby Pee Dee River watershed, which is already impaired for fecal coliform. The nearby residents also expressed concerns that this facility may contaminant their personal drinking well water.

The court concludes that the Petitioners have presented insufficient evidence to establish that the Department erred in granting the permit on these grounds. The siting of the proposed facility exceeds the minimum required distances from the property of nearby residents and their personal drinking wells. While facilities of this nature generally produce odors and particulates, there was insufficient evidence presented that the operation and management practices of this facility, individually or combined with other nearby facilities, will exceed current state or federal ambient air standards. Moreover, the court concludes that the Petitioners have failed to show that the additional design recommendations offered by their experts are required by the regulatory standard for small swine facilities. See 24A S.C. Code Ann. Regs. 61-43 Part 100.70(G) (Supp. 2007).

The purpose of the Pollution Control Act and the Confined Swine Feeding Operations Act is to balance the interest of agricultural business and industrial development with the interests of the environment. Mindful of this statutory purpose and based on the evidence presented, the court finds that the Department erred in granting the permit for the facility as designed. Although the facility proposes to use additional protections in the construction of its swine lagoon, such as the synthetic liner and secondary dike, the court cannot conclude that Coleman’s design complies with the conditions of the regulatory setback waiver that requires that discharge will never enter Waters of the State. See 24A S.C. Code Ann. Regs. 61-43 Part 100.80(A) (Supp. 2007).

ORDER

Accordingly, the court concludes that the Petitioners have proven by a preponderance of the evidence that the Department erred in granting the permit. Therefore, it is hereby

ORDERED that the Department shall deny Coleman’s Application for an animal feeding operation permit.

IT IS SO ORDERED.

____________________________________

PAIGE J. GOSSETT

Administrative Law Judge

August 14, 2008

Columbia, South Carolina