SC Administrative Law Court Decisions

This contested case matter arises from the decision of the South Carolina Department of Health and Environmental Control (Department) to grant State Construction Permit, #17,955.AG, to Benny Shirley (Shirley) for the construction of a turkey grow-out facility in Kershaw County, South Carolina. Petitioner, James A. Alexander, an adjacent landowner, seeks denial of the permit. A hearing was held on January 18, 1996, at the Administrative Law Judge Division Offices, Edgar A. Brown Building, Columbia, South Carolina, during which the parties presented testimony and introduced exhibits, all of which have been carefully reviewed. Upon motion made, Ann Shirley, wife of Benny Shirley, by consent was made a party. The issue considered was the suitability of the location of the four turkey grow-out houses adjacent to Petitioner's property.

The permit is granted with the conditions incorporated herein.

STATEMENT OF THE CASE AND DISCUSSION

Shirley submitted an application and Waste Management Plan with the Department for a turkey grow-out facility to be constructed in Kershaw County, South Carolina. The site was inspected by the Department and the Soil Conservation Service (SCS), and a plan was developed for Shirley by the United States Department of Agriculture (USDA). This application was reviewed by the Department's Division of Water Pollution Control under the S.C. Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1995), S.C. Code Regs. § 61-9 (Supp. 1995), and the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" manual (April 1985) (guidelines and procedures manual). Notification letters of the proposed construction were sent to all landowners, including Petitioner, whose adjoining property line fell within 1,000 feet of the facility proposed by Shirley. In response to this letter, Petitioner and his wife Charlotte B. Alexander, submitted to the Department an objection to the proposed construction. After consideration of Petitioner's objection, the Department issued state construction permit #17,995-AG to Shirley on September 25, 1995. Petitioner was given notice by letter of the Department's decision concerning this permit and Petitioner filed a request for a contested case hearing with the Department. The Department timely filed this case with the Administrative Law Judge Division.

The issuance of construction permits for turkey grow-out facilities is governed by the S.C. Pollution Control Act ("PCA"), S.C. Code Ann. §§ 48-1-10, et seq. (Supp. 1994). Under the authority of §§ 48-1-30 and 48-1-100(B), the Department promulgated Regulation 61-9 which establishes the permitting procedures for waste disposal system construction permits and developed a manual on guidelines and procedures to utilize in seeking permits. The Department utilized its guidelines and procedures manual in the site evaluation and permitting process.

Petitioner asserts a number of reasons for denial of the permit. First, he asserts that the facility (buildings) should not be located as close to his property as authorized in the permit. In support thereof, he argues that in the guidelines and procedures manual, the Department has established a standard distance of 1000 feet from the facility to an adjoining property line; further, that the houses to be built in this instance are only 300 feet from the line. Also, he argues additional inconsistencies with the guidelines established in the manual by the Department in the issuance of the permit as follows:

1. Failure to consider odors, dust and contaminates in the air. See p. 8, section a and p. 9, section h;

2. Distance of the facility from dwellings on adjacent property. See p. 9, section b; and,

3. Distance of the facility of 300 feet from the center line of the public road. See p. 9, section c.

Henry Gibson, agricultural consultant to the Department, who was qualified as an expert witness in agricultural wastewater treatment facilities and concentrated animal growing operations, testified that while he was an employee of the Department, he co-authored the guidelines and procedures manual. Further, he testified that the prevailing winds from the facility would carry odors in an opposite direction from Petitioner's property. Also, he stated that the distances as outlined in the manual between the facility and its property boundary line and from a highway are only guidelines; that where conditions warrant permits may be issued with less distance than those recommended. Although odors cannot be entirely eliminated, he testified they could be minimized. For example, manure from the turkey houses will normally be scraped up and spread on fields within a two to three day period. If not, it must be collected on a concrete pad and covered with black plastic until able to be spread.

Ann Shirley, owner of approximately 2000 acres with her husband, Benny Shirley, testified that most of the manure would be spread on their crop land and pasture lands, some of which surround their residence; however, all of the tracts are some distance from Petitioner's property.⁽¹⁾

Finally, Petitioner claims the construction permit should be denied because the operation of the facility would increase the number of flies and odors in the area, lessening the value of his farm property.

FINDINGS OF FACT

I make the following findings of fact, considering the burden of the Petitioner to establish his case by a preponderance of the evidence and, taking into account the credibility of the witnesses:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties.

3. Shirley filed with the Department an application and a waste management plan for a permit to construct a turkey grow-out house facility on properties he and/or his wife, Ann Shirley, own in Kershaw County, South Carolina.

4. The waste management plan for Shirley was developed by the Soil Conservation Service, an agency of the federal government.

5. The Department's Division of Water Pollution Control deemed the application complete and reviewed the construction permit application and waste management plan under its appropriate statutes and guidelines.

6. All adjacent property owners, including Petitioner, whose adjoining property line falls within 1,000 feet of the proposed facility, were notified by letter of the proposed construction.

7. The letters written to nearby property owners were utilized as a means to provide notice to them of the proposed facility and for the Department to consider and mitigate potential problems with the construction and operation of the agricultural waste management system. The 1000 feet guideline may be affected by the terrain of the property where the facility will be located, water courses, buildings in the area and zoning requirements.

8. Other agricultural waste management facilities exist in South Carolina which have been issued permits and which are located less than 1000 feet from the property lines of adjacent property owners.

9. Each landowner contacted was asked to submit a "no contest" letter to the Department. On March 6, 1995, Petitioner and his wife signed a form objecting the Department issuing a permit authorizing construction of the turkey grow-out houses. Their objection was based upon concerns about accumulation of flies, offensive odors, proximity of the facility to their property line and heavy truck traffic.

10. On September 25, 1995, the Department determined that a Permit to Construct (Permit No. 17,955-AG) should be issued to Shirley. The permit allows the construction of four turkey grow-out houses and the treatment of waste generated by 73,125 turkeys. Twenty (20) special conditions attached to the permit set forth requirements relating to the disposal of the waste and other sanitary conditions to abate odors and flies.

11. The location of the grow-out houses are approximately 300 feet from Alexander's property line boundary with Shirley.

13. With respect to Petitioner, the Department considered his objection based upon the current use of his property which is tree farming and agricultural. Further, it considered the location of the grow-out houses which is in a rural, agricultural community in Kershaw County.

14. If the facility is operated as designed and permitted, it would not create a public nuisance. The odors and fly infestation would be minimal. Odors occur when turkeys are moved and manure is spread. Turkeys are moved about every three to four months. About two to three days is required to move them. Odors may also occur during the transportation of the waste, when the houses are cleaned once a year, during the transportation of waste and when waste is spread.

15. There is no potential for groundwater contamination in the operation of the turkey grow-out operation. Also roll-up curtains will be installed on all sides of each building to prevent rain from blowing in.

16. Petitioner, together with his siblings, own a 170.17 acre tract to the north of the proposed turkey grow-out facility. Petitioner and his wife own an approximate 14 acre tract on the northeast boundary of the 170 acre tract on which their residence is situate.

17. To the northeast of the turkey grow-out facility and within approximately 300 feet is the St. Stevens Baptist Church. The church filed no objection with the Department nor sent any representative to the hearing to object to the granting of the permit.

18. Shirley will spread the waste on properties owned by him and his wife which are distant from the lands owned by Petitioner, his wife and his siblings.

19. The location of the turkey grow-out houses, while approximately 300 feet from Petitioner's adjoining boundary line, was chosen based on a number of factors and considerations, including distance from adjoining neighbors. Its proposed location is not impermissibly close to Petitioner's property.

CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude, 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. 1995).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. National Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. The issuance of construction permits for turkey grow-out facilities is governed by the S.C. Pollution Control Act (PCA), codified at S.C. Code Ann. §§ 48-1-10, et seq. (Supp. 1995). Under the PCA, it is unlawful for any person to dispose of wastes into the environment of this State except in compliance with a permit issued by the Department. S.C. Code Ann. § 48-1-90 (Rev. 1987).

4. The S.C. Pollution Control Act requires that a permit be acquired before disposing of waste generated by a facility. S.C. Code Ann. § 48-1-90 (Rev. 1987).

5. S.C. Code Ann. § 48-1-100(A) (Supp. 1995) provides in part:

A person affected by the provisions of this chapter or the rules and regulations adopted by the department [who desires to dispose of waste into the environment of this State] first shall make application to the Department for a permit to construct and a permits to discharge from the outlet or source. If, after appropriate public comment procedures, as defined in departmental regulations, the department finds that the discharge from the proposed outlet or source will not be in contravention of the provisions of this chapter, a permit to construct and a permit to discharge must be issued to the applicant.

6. In accordance with S.C. Code Ann. §§ 48-1-30 and 48-1-100(B), the Department promulgated S.C. Code Regs. 61-9 (Supp. 1995), issued the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" manual in April 1985, and issued the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" in December 1994. The regulation and guidelines explain the application, permitting procedures, criteria, and standards for a state construction permit.

7. In the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control", page 15, one of the factors utilized for site selection is the distance from the lot line of the site on which the production unit is located. This standard distance is 1000 feet. All property owners within 1000 feet are asked to sign a form stating their approval or disapproval of the proposed facility.

8. The Special Conditions contained in the Permit give protection to adjoining landowners in that they require, among other things, that any nuisance may require additional controls. These include: manure should be applied only when weather and soil conditions are favorable and when prevailing winds are blowing from nearby opposite dwellings; good sanitation should be practiced and leaking waters should be repaired to reduce fly problems and prevent runoff from inside the houses; any wastes wet enough to cause fly or other problems will be removed from the houses; clean up of any spillage occurring during transportation of the waste; and, waste that is spread on cropland is to be disced immediately. If, in the future, Petitioner is harmed by the operation of the facility, adequate remedies are available in the courts of this State.

9. Petitioner has failed to show by a preponderance of the evidence that Construction Permit # 17,955-AG should not be issued. The construction permit was properly submitted by Shirley and reviewed by the Department under all appropriate statutes, regulations and guidelines.

ORDER

IT IS HEREBY ORDERED, that State Construction Permit # 17,955-AG be issued as written to Benny Shirley for a turkey grow-out facility and that the stay of the permit is hereby vacated.

AND IT IS SO ORDERED.

__________________________

MARVIN F. KITTRELL

Chief Judge

Columbia, South Carolina.

January 29, 1996

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Fn. 1: On Petitioner's Exhibit #1, the tracts are outlined or circled in red.