SC Administrative Law Court Decisions

This matter is before the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 et seq. (Supp.1996) upon Petitioner's request for a contested case hearing after Respondent's denial of his request for conversion of a layer lagoon into a swine lagoon.

After notice to all parties, a hearing was conducted on April 27, 1998. Based on the evidence presented, Petitioner's request for conversion is denied. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

Based on the evidence presented, I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

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

Hill Top Farms is a 500 acre farm located in Bishopville, Lee County, South Carolina.

In 1979, Ray Hickson, owner and operator of Hill Top Farms, obtained a construction permit from DHEC to construct a waste treatment system for a no-discharge anaerobic lagoon and land application for wastes generated from 180,000 laying hens.

The waste system, including the lagoon, was constructed in accordance with plans and specifications developed by the U.S. Department of Agriculture Soil Conservation Service (SCS).

At the time SCS designed the waste system, Petitioner inquired and was informed that the system could accommodate waste generated by 5,000 hogs.

DHEC inspected the system and subsequently issued a permit to operate the layer facility.

The construction permit issued to Petitioner on November 16, 1979, designated the project as a no-discharge anaerobic lagoon to treat wastes generated from 180,000 laying hens.

The permit to operate issued to Petitioner on April 28, 1981, authorized a Poultry Waste System to be placed in operation.

Petitioner's facility has never been permitted for swine production.

The lagoon, which has a surface area of approximately nine acres, is completely surrounded by property owned by Hickson.

McGrits Creek flows through Hill Top Farms.

The creek is a perennial stream as designated on a U.S. Geological Survey topographical map. It is a free-flowing stream.

McGrits Creek is located less than 1/4 mile (1,320 feet) from the lagoon.

The facility ceased operation in 1993.

In 1997, Petitioner contacted the Soil Conservation Service (now Natural Resources Conservation Service, "NRCS") to develop a waste management plan for swine production. NRCS would not prepare a plan until DHEC evaluated and approved the site.

Petitioner contacted DHEC for site approval to use the existing lagoon to support hog production. After an inspection by DHEC, Petitioner was informed that the site could not be approved because of its proximity to McGrits Creek, the surface area of the lagoon was greater than four acres, and no synthetic liner existed thereby limiting the maximum tonnage of normal live weight allowable.

Based upon DHEC's refusal to approve the site, NRCS declined to prepare a waste management plan for the site.

On October 15, 1997, Petitioner filed for a contested case hearing before the Administrative Law Judge Division. Both Petitioner and Respondent filed motions for Summary Judgement which were denied.

For purposes of designing a waste treatment system, there is no difference between the physical properties of waste generated by poultry and waste generated by swine.

A lagoon constructed to treat poultry waste may also be used to treat swine waste. Calculations regarding the capacity of the lagoon to treat the various wastes would determine the maximum number of poultry or swine within the facility.

Petitioner contends that the Confined Swine Feeding Operations Act (Act), S.C. Code Ann. §§ 47-20-10 et seq. (Supp. 1997) does not apply to him because his animal waste lagoon was approved, constructed, and operated in 1979 pursuant to state and federal standards at the time. No specific regulations existed for swine facilities when Petitioner received his permit. According to Petitioner, he therefore should be "grandfathered" under the old regulations and issued a permit. Petitioner then contends that if the Act is applicable to his request, DHEC applied inappropriate standards to evaluate his request. His facility was permitted in 1979, therefore it is not a new facility that must adhere to the new regulations.

Petitioner approached the U.S. Department of Agriculture Soil Conservation Service in February, 1979 to request planning assistance with construction of six layer houses, an egg operation and an appropriate waste treatment system in Bishopville, South Carolina. A preliminary site investigation of the proposed poultry no-discharge waste treatment system conducted by the South Carolina Department of Health and Environmental Control (Department). In March, 1979, the Department concluded that Petitioner could proceed with the planning and design of the facility. The Department required Petitioner to submit a waste management plan from an SCS or private engineer to the Department for approval. The Department also advised in the same consent letter, "We would like to stress that the possible future environmental constraints should be kept in mind so that each waste treatment selected initially can be expanded or modified to meet future needs." (DHEC Exhibit 6). Petitioner received a Construction Permit on November 16, 1979 for a no-discharge anaerobic lagoon to treat wastes generated from 180,000 laying hens. On April 28, 1981, Petitioner received his Permit to Operate from the Department after a final inspection. The permit authorized the operation of the "Poultry Waste Treatment" facility.

In 1997, Petitioner requested a permit to convert the existing layer lagoon into a swine lagoon. The Department denied the request because the lagoon does not meet certain criteria of the Confined Swine Feeding Operations Act of 1996 ("Act"). In a letter dated September 25, 1997, the Department denied the request on the following bases:

1. The lagoon is within 1320 feet of waters of the state. McGrits Creek is approximately 1100 feet from the lagoon as measured on USGS topographical map Bishopville West.

2. The lagoon has a surface area of greater than 4 acres. The Act limits the surface area of swine lagoons to a maximum of 4 acres. [S.C. Code Ann. § 47-20-60(A) (Supp. 1997).]

3. There is no synthetic liner so the facility would be limited to a maximum of 420,000 pounds of normal live weight at any one time. [S.C. Code Ann § 47-20-60(B) (Supp. 1997).]

The Act was enacted in 1996 in response to pollution problems caused by spills from hog waste lagoons, fouled creeks, rivers and ground water and the possibility of several major hog companies moving into the state. Trula Mitchell, South Carolina Gets Tough on Swine Farmers, 5 S.C. Envtl. L.J. 201, 201 (1997). It contains stricter standards for all new swine facilities, as well as all expansions of existing swine facilities and new waste utilization areas for existing swine facilities. The Act required the Department to promulgate regulations for the permitting of confined swine feeding operations. These new regulations became effective June 26, 1998. They are entitled "Standards for the Permitting of Agricultural Animal Facilities", and establish criteria, procedures and standards for the issuance of permits for swine facilities. These regulations were not in place when Petitioner applied to convert of his layer facility lagoon to a swine lagoon. However, the regulations demonstrate the intent of the General Assembly in promulgating the Confined Swine Act and therefore can be used now in determining what standards Petitioner should be held to for his new permit application. S.C. Code Regs. 61-43 (1998). There were no standards exclusively for swine facilities when Petitioner received his layer lagoon permit. All of the paperwork associated with its construction states that the lagoon area was permitted to accommodate the waste of laying hens only. Petitioner contends that the lagoon has at various times since 1979 serviced chickens, quail and hogs. However, the lagoon has never been permitted by the Department for use with any animal other than laying hens.

Petitioner's application for conversion of his layer lagoon to a swine lagoon constitutes a new swine facility and must comply with the Act and its associated regulations. Testimony of the Department expert, Marion Sadler, explained that "the Department considers any facility not already permitted for swine that seeks to convert to a swine facility to be a new swine facility under the Act". The regulations do not specifically define "new" facility. They do, however, set out in detail what steps must be taken by facilities permitted prior to July 1, 1996. The only type of swine facility that does not need to apply for a new permit under the regulations is an existing swine facility with a permit issued by the Department before July 1, 1996 that is not expanding and has been fully operational since receiving its permit. S.C. Code Regs. 61-43 § 100.10(C)(1) (1998). All other swine facilities must either apply for a new permit or make sure their facility meets all regulatory requirements. S.C. Code Regs. 61-43 § 100.10(C) (1998). Petitioner's facility does not meet the criteria of an existing permitted swine facility. Petitioner contends that the lagoon has been in operation since 1979. The Department stated in its answer that Petitioner's facility has not been operational since 1993. The source of the information was not revealed. However, Petitioner did not rebut this statement in his answer or at the hearing. If the lagoon has been out of operation more than two years, that fact alone would require Petitioner to apply for a permit adhering to the new regulations. S.C. Code Regs. 61-43 § 100.10 (1998). The lagoon does not meet any criteria of a "deemed permitted swine facility" (a swine facility permitted before July 1, 1996), so it must be considered a new swine facility seeking a permit.

Petitioner argues that there is no rational basis to accord swine waste stricter regulatory treatment than other animal waste because the biological and chemical components of the waste and the breakdown of the component parts are the same. The powers of an agency such as DHEC are construed liberally when the powers concern the protection of the health and welfare of the public. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987). Courts must look to the intent of the General Assembly as well as the agency's interpretation when reviewing an administrative rule or regulation. The intent of the regulations is stated clearly in the first purpose. "To protect the environment and the health and welfare of citizens of South Carolina..." S.C. Code Regs.61-43 § 100.10(A). The regulation of swine feeding operations is well within the police powers of the state. "...In the exercise of police power, the State is ordinarily to be governed only by considerations of what is for the public welfare." City Council of Charleston v. Werner, 38 S.C. 488, 493, 17 S.E. 33, 38 (1893). Statutes and municipal ordinances calculated to better the health, safety, and welfare of the people have long been recognized to be within the police power. Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955). Government is imbued with a power to legislate for protection of public health, welfare and morals that has no well defined limits, but it must be as extensive as necessities that call for its use. South Carolina Department of Revenue and Taxation v. Rosemary Coin Machine, Inc., 331 S.C. 234, 500 S.E.2d 176 (1998). The differing treatment between swine wastes and other animal waste is an appropriate exercise of the police power of the state when the stricter regulation of swine waste is to prevent the threat of contamination of the public waters and the public health. If the Department allowed anyone to convert a non-swine facility into a swine facility without adhering to the regulations, it would undermine the intent of the legislation. Petitioner's lagoon must comply with all regulations relating to swine feeding operations before his permit will be considered.

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

The Administrative Law Judge Division has jurisdiction over the issuance of environmental permits pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1997).

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. South Carolina Dept. of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

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

The powers of an agency such as DHEC are construed liberally when the powers concern the protection of the health and welfare of the public. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

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

The Confined Swine Feeding Operations Act's purpose is to amend Title 47 of the South Carolina Code relating to Animals, Livestock, and Poultry, by classifying confined swine feeding operations separately, and providing for the promulgation of specific regulations for these operations. 1996 S.C. Acts 460.

The Act requires DHEC to act on all permits so as to prevent degradation of water quality due to cumulative and secondary effects of permitting decisions. S.C. Code Ann. § 47-20-90(B) (Supp. 1997).

The minimum separation distance required between a lagoon and a waste storage pond and waters of the state is 1,320 feet (one-fourth mile). S.C. Code Ann. § 47-20-20(6) (Supp. 1997).

"Waters of the State" as defined by S.C. Code Ann. § 47-20-10(15) includes perennial streams.

McGrits Creek is a perennial stream and is therefore considered "waters of the State".

The Act limits the surface area of swine lagoons to a maximum of four acres. S.C. Code Ann. § 47-20-60(A) (Supp. 1997).

Lagoons for animal feeding operations with a capacity for more than 420,000 pounds of normal production animal live weight [approximately 3000 adult swine] at any one time must have an acceptable liner. S.C. Code Ann § 47-20-60(B) (Supp. 1997).

All existing swine facilities with permits issued by the Department before July 1, 1996 do not need to apply for a permit as they are deemed permitted unless they have been closed for more than two years. S.C. Code Reg.61-43 § 100.10(C)(1) (1998).

All other swine facilities must either apply for a new permit or make sure their facility meets all regulatory requirements. S.C. Code Reg.61-43 § 100.10(C) (1998).

"...In the exercise of police power, the State is ordinarily to be governed only by considerations of what is for the public welfare." City Council of Charleston v. Werner, 38 S.C. 488, 493, 17 S.E. 33, 38 (1893).

Statutes and municipal ordinances calculated to better the health, safety, and welfare of the people have long been recognized to be within the police power. Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955).

Government is imbued with a power to legislate for protection of public health, welfare and morals that has no well defined limits, but it must be as extensive as necessities that call for its use. South Carolina Department of Revenue and Taxation v. Rosemary Coin Machine, Inc., 331 S.C. 234, 500 S.E.2d 176 (1998).

The lagoon at Hill Top Farms currently does not meet the requirements of the Confined Swine Feeding Operations Act and the regulations promulgated thereto. Based upon the size of the lagoon and its proximity to McGrits Creek, the site is not suitable for the design of a swine waste treatment system.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Petitioner's application for conversion of a lagoon within a Poultry Waste Treatment System to a lagoon for the treatment of swine wastes is denied.

AND IT IS SO ORDERED.

____________________________________

ALISON RENEE LEE

Administrative Law Judge

January 11, 1999

Columbia, South Carolina.