ORDERS:
36. Some 16 existing poultry facilities and 1 dairy facility are located within a five mile
radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1.
37. Numerous approved land application sites for animal manure are near and even
directly adjacent to Lake Murray. Pet. Exs. 16, 17, 20, 24 and 25. In addition DHEC’s own
inspection records document a number of troubling known instances of improper manure
management at these same facilities near the Lake, including the improper storage of manure in
uncovered piles- the potential cause of water pollution. Pet. Exs. 21, 22, 23. Mr. John Hare’s
own operations at his existing poultry facility were rated “unsatisfactory” for his improper
manure spreading and for his failure to eliminate bird carcasses from the litter. Pet. Ex. 18.
DISCUSSION
The proposed Hare poultry facility is a potential source of water pollution and a certain
source of odorous air pollution. As the record establishes and the regulatory scheme itself
acknowledges, proper management of the animal waste generated by this facility is essential to
prevent significant environmental harm to surface waters of the state and the human and natural
life which depend thereon. While water pollution risk may be averted by assuring proper animal
waste management, air pollution control depends essentially on the proper siting of such a
facility. Since the discharge of gases and particulates from decomposing animal wastes in the
poultry barns is by design and is certain during routine operations, only distance from objecting
neighbors can protect them from the impact of odorous air pollution.
Air and water pollution concerns underlie much of the consideration in DHEC’s
Agricultural Animal Facility Permitting Regulations, R. 61-43. The regulation specifies
minimum and absolute setbacks for production barns from streams and other waters of the state
and from adjacent property lines and nearby residences. R.61-43.200.80(A). In addition, when
evaluating site selection, DHEC is required to consider factors which are relevant to preventing
or mitigating air and water pollution. R.61-43.200.70(E). Finally, in making permit decisions,
DHEC is affirmatively mandated to control air and water pollution from new or expanded
facilities:
The Department shall act on all permits to prevent, so far as reasonably possible
considering relevant standards under state and federal laws, an increase in
pollution of the waters and air of the State from any new or enlarged sources.
R.61-43.200.70(E). Such considerations are also mandated by the Anti- Degradation
requirements of DHEC’s Water Quality Regulations, R. 61-68 D.
Under such circumstances the Corleys, as adjacent property owners and residents, have
recognized property and liberty interests in the use and enjoyment of their home, their land, the
waters of the state and natural resources in the vicinity of the proposed Hare poultry facility.
Lever v. Wilder Mobile Homes, 283 S.C. 452, 322 S.E.2d 692, 693 (S.C. App. 1984) (It is a
nuisance to use property in such a way that annoying or injurious odors are emitted.) Roach v.
Combined Utility Comm. Of the City of Easley, 290 S.C. 437, 351 S.E.2d 168 (S.C. App. 1986);
Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 ( S.C. 1962). Those interests of
the Corleys are threatened by the proposed permitting of the Hare poultry barns; however the
record indicates no consideration of the Corleys’ interests by DHEC in its review of the Hare
application. No one from DHEC ever contacted the Corleys or visited the Corley property. The
Corleys never received any actual notice of the Hare application or of any opportunity to be
heard, to comment or object to the proposed permit until the permit decision had been made and
this contested case appeal was filed.
1. NOTICE
Facing an agency permitting decision which threatened their property and liberty
interests, the Corleys were entitled to notice and an opportunity to be heard by DHEC before it
made its permit decision. Such administrative due process is guaranteed by Article I, § 22, of the
South Carolina Constitution. Stono River Envtl. Protection Ass'n v. South Carolina Dep't. of
Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
“Administrative agencies are required to meet minimum standards of due process.
S.C. Const. Art. 1 § 3: Smith & Smith, Inc., v. S.C. Public Service Commission,
271 S.C. 405, 247 S.E. 2d 677 (1978). Due process is flexible and calls for such
procedural protections as the particular situation demands. Morrisey v. Brewer,
408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 4884 (1972). In our view,
constitutional due process provisions, apart from the APA, are sufficient to confer
the rights to notice and for an opportunity to be heard. “No person shall be finally
bound by a judicial or quasi judicial decision of an administrative agency affecting
private rights except on due notice and an opportunity to be heard . . . and he shall
have in all such instances the right to judicial review. S. C. Const., Art. 1, Section
22.” Id. at 92, 341.
Furthermore, “The requirements of due process include notice, an opportunity to be heard in a
meaningful way and judicial review,” Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505
S.E. 598 (Ct. App. 1998), citing Stono River, supra and S.C. Const. Art 1, § 22. (emphasis
added.) DHEC did not provide an opportunity for the Corleys or their neighbors to be heard at
all, much less in a meaningful way.
DHEC’s Joy Shealy acknowledged that the Corleys were identified as adjacent property
owners, along with their address, on the tax map list which was a part of the permit application.
Their names and address were “reasonably ascertainable,” yet no actual notice was provided by
DHEC to the Corleys of the Hare application.
The record here establishes that DHEC failed to provide even the minimal notice required
by its own permitting regulations. As the record establishes, the DHEC Notice of Intent form
fails to provide any significant information as to the size or location of the proposed facility on
the basis of which one could evaluate the threat to one’s interests. In addition, as reflected in the
testimony here, the dismissive characterization by Mr. Hare of his plans and indefinite time table
lulled Mr. Corley into the false understanding that no permit application might ever be made.
Similarly, the notice form posted by DHEC’s district staff contained no information on the
specific location of the proposed barns and described the facility size only in extremely vague
technical terms. Again, the reader is provided inadequate information regarding the impact on
his interests.
In addition to these formal weaknesses, DHEC failed to meet the posting requirements of
its regulation.
R. 61-43.200.60A provides:
The Department shall also post up to four notices on the perimeter of the property
or in close proximity to the property, in visible locations as determined by the
Department. (Emphasis supplied.)
The undisputed testimony of Robert Corley establishes that none of the locations posted by the
DHEC Staff were either on the perimeter of or in close proximity to the subject property. All
were at some distance from the site; one was posted almost three miles away. In addition the
only notice ‘seen’ by Mr. Corley was so far from the public road that it was not ‘visible’ as
required, and was mistaken for a notice regarding the expansion of another poultry facility.
The fact that different notices for various proposed locations were printed on plain white
paper with standard type and were serially posted on the same utility pole off the highway does
not conform with the DHEC regulation. This posting did not constitute public notice.
The consequences of this inadequate notice were significant. No comments or objections
were received by DHEC within the comment period and no public meeting was held in the
community, leading Ms. Shealy to conclude that there were no objections to the proposed
facility. Once Mr. Corley became aware of the application, he quickly obtained 38 signatures of
neighbors, even during a short time frame over the holidays, objecting to the Hare permit on
environmental grounds.
As Ms. Shealy acknowledged, had this petition been received earlier, DHEC would have
conducted a public meeting in the community, at which specific details of the permit would have
been disclosed--including maps of the barn locations--and public comments and objections
solicited. DHEC, in turn, would have considered all such comments and objections in making its
permit decision. R. 61-43.200.60(D), (E), (F), (G). DHEC’s technical review of the Hare permit
application was seriously deficient because of its failure to obtain and consider public objections
to the proposed facility. DHEC’s failure to comply with the posting requirements of its
permitting regulation requires remand of this permit decision.
2. TECHNICAL REVIEW
DHEC’S failure to conduct the technical review required by R. 61-43 likewise compels
reversal of the Hare permit decision. As previously cited, DHEC’s Animal Agricultural
Permitting Regulations require the DHEC staff to evaluate enumerated factors in considering the
proposed site for an animal production facility. R. 61-43. 200.70(F). In addition, DHEC is
mandated to protect against increased air and water pollution in permitting new or expanded
animal production facilities. R.61-43.200.70(E). Because DHEC failed to consider the
enumerated mandatory factors in its siting evaluation, the matter must be remanded.
The testimony of DHEC’s permit reviewer Joy Shealy evidences numerous changes
during DHEC’s technical review of the Hare application. The permit application was originally
for twelve barns. The only DHEC staff who visited the proposed site erroneously approved the
site for all twelve barns, even though the required 400 foot setbacks from adjoining property
could not be achieved at the site. Ms. Shealy, who never visited the site herself, performed the
remaining technical review of the application and approved the permit for five barns only 200
feet from the Corley property line and spring. Although the permit application was adjusted
several times from twelve to nine to five barns, no new application or even new applicant
signatures were obtained for the revisions. Ms. Shealy, or someone else unknown to her, simply
crossed out the old entries and penciled in the new information. No new public notice or notice
to adjacent property owners--including the Corleys--was provided despite the change that moved
the barns 200 feet closer to the Corley property line. Ms. Shealy did not know how far the barns
were from the downgradient stream or the Corley property line or residence. No survey or field
measurements were required. She testified she probably estimated the distance using a ruler on
the tax map, but made no record of the results. Ms. Shealy did not consider soil type to play a
significant role in setback consideration for this permit although the highly erosive soils on the
grade between the barns and the Corley spring make runoff of stormwater and poultry waste
more likely. In the permit review, Ms. Shealy did not look at any planned land use of adjacent
properties in considering setbacks, but only considered the residences.
In Ms. Shealy’s view, because the Hare poultry facility was deemed a ‘no-discharge’ farm
with almost no potential for discharge, the requirement of the regulation to consider proximity to
other known point source discharges and potential non-point discharges might not be applicable.
Despite the location of some sixteen existing poultry facilities and one dairy facility within a five
mile radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1, DHEC
made no evaluation of the proximity of the proposed facility to these other known “potential
nonpoint sources” of animal waste water pollution, contrary to DHEC regulation R.61-43.200.70(F)(6). Nor did DHEC perform the mandatory evaluation of the “(C)lassification or
impairment of adjacent waters,” as required by R.61-43.200.70(F)(4), reasoning that Lake
Murray was simply too far away, and that the Hare facility was presumed to be ‘no discharge.’
The record establishes the close connection between the proposed site and the waters of the Lake
by direct stream flow of only about 2 miles.
DHEC must comply with the mandatory considerations enumerated in its own
regulations. Where DHEC regulation R.61-43.200.70(F) states that DHEC “shall” evaluate
specified factors, it is error for it to fail to do so. DHEC must abide by its own standards and
may not act arbitrarily in failing to follow its own guidelines and requirements. See, 330
Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538, 540 (S.C.
App. 1992); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.
2d 531, 533 (S.C. 1987); S.C. Code Section 1-23-380(A)(6)(f). Moreover, adherence to its own
regulations in the consideration of permit applications is the cornerstone of reasoned
decisionmaking. “A decision is arbitrary if it is without a rational basis, is based alone on one’s
will and not upon any course of reasoning and exercise of judgement, is made at pleasure,
without adequate determining principles, or is governed by no fixed rules or standards.” Deese v.
South Carolina State Board of Dentistry, 332 S.E.2d 539 at 541, 286 S.C. 182 (S.C.App. 1985).
The ASAE, American Society of Agricultural Engineers, recommends a minimum
setback of animal production facilities from neighboring residences of at least one quarter mile
and a mile from more concentrated residential areas. The Corley residence will be less than the
1/4 mile setback from the Hare poultry barns recommended by the ASAE. On the face of this
undisputed evidence that the Hare poultry will, by design, discharge air pollution into the
environment only 200 feet from the Corley property and 1000 feet from the Corley home, DHEC
can not establish that it has complied with the regulatory mandate to prevent an increase in air
pollution as required by R.61-43.200.70(E):
The Department shall act on all permits to prevent, so far as reasonably possible
considering relevant standards under state and federal laws, an increase in
pollution of the waters and air of the State from any new or enlarged sources.
The evidence establishes, to the contrary, that the Hare permit- with absolutely no air pollution
control and a site too close to the Corleys- will inevitably cause an increase in air pollution. For
this reason as well the Hare poultry permit must be remanded.
CONCLUSIONS OF LAW
1. By a preponderance of the reliable and probative evidence on the whole record I conclude
that the Petitioners have established that the review of the proposed Hare Poultry Facility permit,
No. 18,757-AG was inadequate.
2. I conclude that the Department has failed to provide Petitioners constitutionally adequate
notice and opportunity to be heard. Stono River Envtl. Protection Ass'n v. South Carolina Dep't.
of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
3. I conclude that the Department has failed to meet the posting requirements of regulation
R. 61-43.200.60A based on its failure to post notices of the application and opportunity to object
on the perimeter of the property or in close proximity to the property, in visible locations.
4. I conclude that the Department has failed to conduct an adequate technical review of the
Hare permit application and, in particular, has failed to evaluate the factors enumerated in
regulation R.61-43.200.70(F) or to assure that the facility will not increase air pollution as
designed contrary to regulation R.61-43.200.70(E).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, I remand the proposed
State Animal Feeding Operation Permit No. 18,757-AG, dated December 11, 2002, for the
construction and operation of five (5) broiler houses to John and Lois Hare in Saluda County,
South Carolina, to DHEC for further review and notice consistent with this order.
IT IS SO ORDERED.
Carolyn C. Matthews,
Administrative Law Judge
May 4, 2004
Columbia, SC 36. Some 16 existing poultry facilities and 1 dairy facility are located within a five mile
radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1.
37. Numerous approved land application sites for animal manure are near and even
directly adjacent to Lake Murray. Pet. Exs. 16, 17, 20, 24 and 25. In addition DHEC’s own
inspection records document a number of troubling known instances of improper manure
management at these same facilities near the Lake, including the improper storage of manure in
uncovered piles- the potential cause of water pollution. Pet. Exs. 21, 22, 23. Mr. John Hare’s
own operations at his existing poultry facility were rated “unsatisfactory” for his improper
manure spreading and for his failure to eliminate bird carcasses from the litter. Pet. Ex. 18.
DISCUSSION
The proposed Hare poultry facility is a potential source of water pollution and a certain
source of odorous air pollution. As the record establishes and the regulatory scheme itself
acknowledges, proper management of the animal waste generated by this facility is essential to
prevent significant environmental harm to surface waters of the state and the human and natural
life which depend thereon. While water pollution risk may be averted by assuring proper animal
waste management, air pollution control depends essentially on the proper siting of such a
facility. Since the discharge of gases and particulates from decomposing animal wastes in the
poultry barns is by design and is certain during routine operations, only distance from objecting
neighbors can protect them from the impact of odorous air pollution.
Air and water pollution concerns underlie much of the consideration in DHEC’s
Agricultural Animal Facility Permitting Regulations, R. 61-43. The regulation specifies
minimum and absolute setbacks for production barns from streams and other waters of the state
and from adjacent property lines and nearby residences. R.61-43.200.80(A). In addition, when
evaluating site selection, DHEC is required to consider factors which are relevant to preventing
or mitigating air and water pollution. R.61-43.200.70(E). Finally, in making permit decisions,
DHEC is affirmatively mandated to control air and water pollution from new or expanded
facilities:
The Department shall act on all permits to prevent, so far as reasonably possible
considering relevant standards under state and federal laws, an increase in
pollution of the waters and air of the State from any new or enlarged sources.
R.61-43.200.70(E). Such considerations are also mandated by the Anti- Degradation
requirements of DHEC’s Water Quality Regulations, R. 61-68 D.
Under such circumstances the Corleys, as adjacent property owners and residents, have
recognized property and liberty interests in the use and enjoyment of their home, their land, the
waters of the state and natural resources in the vicinity of the proposed Hare poultry facility.
Lever v. Wilder Mobile Homes, 283 S.C. 452, 322 S.E.2d 692, 693 (S.C. App. 1984) (It is a
nuisance to use property in such a way that annoying or injurious odors are emitted.) Roach v.
Combined Utility Comm. Of the City of Easley, 290 S.C. 437, 351 S.E.2d 168 (S.C. App. 1986);
Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 ( S.C. 1962). Those interests of
the Corleys are threatened by the proposed permitting of the Hare poultry barns; however the
record indicates no consideration of the Corleys’ interests by DHEC in its review of the Hare
application. No one from DHEC ever contacted the Corleys or visited the Corley property. The
Corleys never received any actual notice of the Hare application or of any opportunity to be
heard, to comment or object to the proposed permit until the permit decision had been made and
this contested case appeal was filed.
1. NOTICE
Facing an agency permitting decision which threatened their property and liberty
interests, the Corleys were entitled to notice and an opportunity to be heard by DHEC before it
made its permit decision. Such administrative due process is guaranteed by Article I, § 22, of the
South Carolina Constitution. Stono River Envtl. Protection Ass'n v. South Carolina Dep't. of
Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
“Administrative agencies are required to meet minimum standards of due process.
S.C. Const. Art. 1 § 3: Smith & Smith, Inc., v. S.C. Public Service Commission,
271 S.C. 405, 247 S.E. 2d 677 (1978). Due process is flexible and calls for such
procedural protections as the particular situation demands. Morrisey v. Brewer,
408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 4884 (1972). In our view,
constitutional due process provisions, apart from the APA, are sufficient to confer
the rights to notice and for an opportunity to be heard. “No person shall be finally
bound by a judicial or quasi judicial decision of an administrative agency affecting
private rights except on due notice and an opportunity to be heard . . . and he shall
have in all such instances the right to judicial review. S. C. Const., Art. 1, Section
22.” Id. at 92, 341.
Furthermore, “The requirements of due process include notice, an opportunity to be heard in a
meaningful way and judicial review,” Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505
S.E. 598 (Ct. App. 1998), citing Stono River, supra and S.C. Const. Art 1, § 22. (emphasis
added.) DHEC did not provide an opportunity for the Corleys or their neighbors to be heard at
all, much less in a meaningful way.
DHEC’s Joy Shealy acknowledged that the Corleys were identified as adjacent property
owners, along with their address, on the tax map list which was a part of the permit application.
Their names and address were “reasonably ascertainable,” yet no actual notice was provided by
DHEC to the Corleys of the Hare application.
The record here establishes that DHEC failed to provide even the minimal notice required
by its own permitting regulations. As the record establishes, the DHEC Notice of Intent form
fails to provide any significant information as to the size or location of the proposed facility on
the basis of which one could evaluate the threat to one’s interests. In addition, as reflected in the
testimony here, the dismissive characterization by Mr. Hare of his plans and indefinite time table
lulled Mr. Corley into the false understanding that no permit application might ever be made.
Similarly, the notice form posted by DHEC’s district staff contained no information on the
specific location of the proposed barns and described the facility size only in extremely vague
technical terms. Again, the reader is provided inadequate information regarding the impact on
his interests.
In addition to these formal weaknesses, DHEC failed to meet the posting requirements of
its regulation.
R. 61-43.200.60A provides:
The Department shall also post up to four notices on the perimeter of the property
or in close proximity to the property, in visible locations as determined by the
Department. (Emphasis supplied.)
The undisputed testimony of Robert Corley establishes that none of the locations posted by the
DHEC Staff were either on the perimeter of or in close proximity to the subject property. All
were at some distance from the site; one was posted almost three miles away. In addition the
only notice ‘seen’ by Mr. Corley was so far from the public road that it was not ‘visible’ as
required, and was mistaken for a notice regarding the expansion of another poultry facility.
The fact that different notices for various proposed locations were printed on plain white
paper with standard type and were serially posted on the same utility pole off the highway does
not conform with the DHEC regulation. This posting did not constitute public notice.
The consequences of this inadequate notice were significant. No comments or objections
were received by DHEC within the comment period and no public meeting was held in the
community, leading Ms. Shealy to conclude that there were no objections to the proposed
facility. Once Mr. Corley became aware of the application, he quickly obtained 38 signatures of
neighbors, even during a short time frame over the holidays, objecting to the Hare permit on
environmental grounds.
As Ms. Shealy acknowledged, had this petition been received earlier, DHEC would have
conducted a public meeting in the community, at which specific details of the permit would have
been disclosed--including maps of the barn locations--and public comments and objections
solicited. DHEC, in turn, would have considered all such comments and objections in making its
permit decision. R. 61-43.200.60(D), (E), (F), (G). DHEC’s technical review of the Hare permit
application was seriously deficient because of its failure to obtain and consider public objections
to the proposed facility. DHEC’s failure to comply with the posting requirements of its
permitting regulation requires remand of this permit decision.
2. TECHNICAL REVIEW
DHEC’S failure to conduct the technical review required by R. 61-43 likewise compels
reversal of the Hare permit decision. As previously cited, DHEC’s Animal Agricultural
Permitting Regulations require the DHEC staff to evaluate enumerated factors in considering the
proposed site for an animal production facility. R. 61-43. 200.70(F). In addition, DHEC is
mandated to protect against increased air and water pollution in permitting new or expanded
animal production facilities. R.61-43.200.70(E). Because DHEC failed to consider the
enumerated mandatory factors in its siting evaluation, the matter must be remanded.
The testimony of DHEC’s permit reviewer Joy Shealy evidences numerous changes
during DHEC’s technical review of the Hare application. The permit application was originally
for twelve barns. The only DHEC staff who visited the proposed site erroneously approved the
site for all twelve barns, even though the required 400 foot setbacks from adjoining property
could not be achieved at the site. Ms. Shealy, who never visited the site herself, performed the
remaining technical review of the application and approved the permit for five barns only 200
feet from the Corley property line and spring. Although the permit application was adjusted
several times from twelve to nine to five barns, no new application or even new applicant
signatures were obtained for the revisions. Ms. Shealy, or someone else unknown to her, simply
crossed out the old entries and penciled in the new information. No new public notice or notice
to adjacent property owners--including the Corleys--was provided despite the change that moved
the barns 200 feet closer to the Corley property line. Ms. Shealy did not know how far the barns
were from the downgradient stream or the Corley property line or residence. No survey or field
measurements were required. She testified she probably estimated the distance using a ruler on
the tax map, but made no record of the results. Ms. Shealy did not consider soil type to play a
significant role in setback consideration for this permit although the highly erosive soils on the
grade between the barns and the Corley spring make runoff of stormwater and poultry waste
more likely. In the permit review, Ms. Shealy did not look at any planned land use of adjacent
properties in considering setbacks, but only considered the residences.
In Ms. Shealy’s view, because the Hare poultry facility was deemed a ‘no-discharge’ farm
with almost no potential for discharge, the requirement of the regulation to consider proximity to
other known point source discharges and potential non-point discharges might not be applicable.
Despite the location of some sixteen existing poultry facilities and one dairy facility within a five
mile radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1, DHEC
made no evaluation of the proximity of the proposed facility to these other known “potential
nonpoint sources” of animal waste water pollution, contrary to DHEC regulation R.61-43.200.70(F)(6). Nor did DHEC perform the mandatory evaluation of the “(C)lassification or
impairment of adjacent waters,” as required by R.61-43.200.70(F)(4), reasoning that Lake
Murray was simply too far away, and that the Hare facility was presumed to be ‘no discharge.’
The record establishes the close connection between the proposed site and the waters of the Lake
by direct stream flow of only about 2 miles.
DHEC must comply with the mandatory considerations enumerated in its own
regulations. Where DHEC regulation R.61-43.200.70(F) states that DHEC “shall” evaluate
specified factors, it is error for it to fail to do so. DHEC must abide by its own standards and
may not act arbitrarily in failing to follow its own guidelines and requirements. See, 330
Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538, 540 (S.C.
App. 1992); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.
2d 531, 533 (S.C. 1987); S.C. Code Section 1-23-380(A)(6)(f). Moreover, adherence to its own
regulations in the consideration of permit applications is the cornerstone of reasoned
decisionmaking. “A decision is arbitrary if it is without a rational basis, is based alone on one’s
will and not upon any course of reasoning and exercise of judgement, is made at pleasure,
without adequate determining principles, or is governed by no fixed rules or standards.” Deese v.
South Carolina State Board of Dentistry, 332 S.E.2d 539 at 541, 286 S.C. 182 (S.C.App. 1985).
The ASAE, American Society of Agricultural Engineers, recommends a minimum
setback of animal production facilities from neighboring residences of at least one quarter mile
and a mile from more concentrated residential areas. The Corley residence will be less than the
1/4 mile setback from the Hare poultry barns recommended by the ASAE. On the face of this
undisputed evidence that the Hare poultry will, by design, discharge air pollution into the
environment only 200 feet from the Corley property and 1000 feet from the Corley home, DHEC
can not establish that it has complied with the regulatory mandate to prevent an increase in air
pollution as required by R.61-43.200.70(E):
The Department shall act on all permits to prevent, so far as reasonably possible
considering relevant standards under state and federal laws, an increase in
pollution of the waters and air of the State from any new or enlarged sources.
The evidence establishes, to the contrary, that the Hare permit- with absolutely no air pollution
control and a site too close to the Corleys- will inevitably cause an increase in air pollution. For
this reason as well the Hare poultry permit must be remanded.
CONCLUSIONS OF LAW
1. By a preponderance of the reliable and probative evidence on the whole record I conclude
that the Petitioners have established that the review of the proposed Hare Poultry Facility permit,
No. 18,757-AG was inadequate.
2. I conclude that the Department has failed to provide Petitioners constitutionally adequate
notice and opportunity to be heard. Stono River Envtl. Protection Ass'n v. South Carolina Dep't.
of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
3. I conclude that the Department has failed to meet the posting requirements of regulation
R. 61-43.200.60A based on its failure to post notices of the application and opportunity to object
on the perimeter of the property or in close proximity to the property, in visible locations.
4. I conclude that the Department has failed to conduct an adequate technical review of the
Hare permit application and, in particular, has failed to evaluate the factors enumerated in
regulation R.61-43.200.70(F) or to assure that the facility will not increase air pollution as
designed contrary to regulation R.61-43.200.70(E).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, I remand the proposed
State Animal Feeding Operation Permit No. 18,757-AG, dated December 11, 2002, for the
construction and operation of five (5) broiler houses to John and Lois Hare in Saluda County,
South Carolina, to DHEC for further review and notice consistent with this order.
IT IS SO ORDERED.
Carolyn C. Matthews,
Administrative Law Judge
May 4, 2004
Columbia, SC |