SC Administrative Law Court Decisions

1. Will granting the permit to Gales be improper on the grounds that construction of a waste treatment and collection system for four broiler houses in Clarendon County will produce an unhealthy environment by contributing to the production of dust, flies and odor detrimental to the health of the populace living in the surrounding area?

2. Is a setback of 1,000 feet from the adjacent property lines required for the siting of the broiler houses?

1. Positions of Parties

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

a. General

DHEC issued construction permit # 18,429-AG to Gales on August 20, 1998 to allow Gales to construct and operate a waste treatment and collection system for a broiler house facility. The facility will consist of four houses with approximately 24,000 broilers per house. Each house will accommodate five flocks per year and will allow a total of 480,000 broilers per year.

The facility will be located in a rural area of Clarendon County with the general area of the proposed broiler operation being in an agricultural area. Local zoning and land use requirements do not prohibit the broiler facility.

The broilers will arrive at the barns as chicks and will be removed from the houses at a weight of six pounds which will be reached in about six weeks. The broilers will be raised completely within enclosed houses.

b. Management Plan

The broiler houses will produce litter in the form of manure and the means of disposal of the manure will involve discharging the litter into the environment. Hence, a litter disposal plan is required.

The litter from the houses will be removed and will be land-applied over agricultural cropland and fields as fertilizer. The total waste and litter production from the operation is estimated to be 586 tons per year. To accommodate disposal of waste, Gales submitted a Waste Management Plan prepared by the Natural Resources Conservation Service, U.S. Dept. of Agriculture, for the land application of the manure from the broiler houses. The Waste Management Plan identified potential fields for land application of the waste and established a total acreage of 126.5 acres available for disposing of the litter. Proper disposal will require 114.5 acres.

The waste management plan accommodates sufficient acreage to compensate for 586 tons per year of litter. Of the acreage to be used for disposal of litter, Gales either owns the land or has leases or expects to obtain permission to spread the litter on other land before the waste disposal system is placed into operation. Thus, Gales will have the use of sufficient land or other means of disposal to meet the 586 tons per year litter demand.

c. Health and Nuisance Concerns

DHEC inspected the proposed site upon which Gales intends to place the proposed broiler facility. In granting the permit DHEC relied upon departmental regulations and examined the Waste Management Plan prepared by the Natural Resources Conservation Service. DHEC regulations address (among others) site selection with minimum setback requirements, waste management, manure storage and handling, dead animal disposal, and maintenance and operation of the facility. In granting the permit DHEC imposed twenty-five special conditions designed to govern operation and maintenance of the facility, removal of waste from the facility, and transportation and land application of the waste.

Notification letters of the proposed construction were sent to all landowners within 1,000 feet of the facility proposed by Gales. That notice generated objections to DHEC from residents in the area.

Gales's property will place the four broiler houses approximately 300 feet from the center line of S.C. Highway S-14-25 and 200 to 300 feet from the property line of two adjoining property owners. Two residences are 2,100 feet from the facility, a third is 2,300 feet, and a fourth is 4,500 feet from the proposed location. Any wastes spread on pasture or hay land will be greater than 200 feet from a dwelling, or if spread within 200 feet, will be pursuant to a letter of approval from the tenant or owner of the dwelling.

d. Water Contamination

The general area as a whole is relatively low lying and exhibits the presence of standing water a substantial part of the year. However, the permit prohibits applying waste within 100 feet of watercourses and requires that waste must be immediately spread with incorporation on flood plains allowed only after the danger of major runoff events has past. The permit requires that a lower rate of application must be made on shallow soils to avoid groundwater contamination. Additionally, where slopes are over 300 feet long, terraces or surface drains must be installed to slow the movement of waste over the land.

Further, it is significant that Gales's operation does not involve a water source disposal system and thus presents no significant risk of water pollution to well water. The broiler houses are fully enclosed and will deny contact between the broiler manure in the house and rain water runoff. In summary, when considered as a whole, the operation and maintenance of the broiler facility, the method of spreading, and the method of accumulating manure will not present a danger of improper water runoff or groundwater contamination.

3. Conclusions of Law

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

a. General Legal Conclusion

On the whole, the permit with restrictions provides an adequate waste disposal and collection system for four broiler houses. Further, considering the permit with the restrictions, on the whole, the permit provides adequate measures to control flies and pests; provides adequate measures to control nuisances from dust, odor, and noise; provides adequate measures to control the times and manner of spreading the manure; and provides adequate measures to control the maintenance and operation of the facility. Thus, with the restrictions, the permit does not present a health or nuisance problem for the populace of the area. Finally, the operation and maintenance of the broiler facility, the method of spreading, and the method of accumulating manure will not present a danger of improper water runoff or groundwater contamination. Accordingly, the permit is proper and is consistent with the authority and responsibilities of DHEC.

b. DHEC Authority and Responsibilities For Broiler Barns and Waste Disposal

DHEC has general responsibilities over matters that present threats, whether real or potential, 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. 1998). As a part of its specific responsibilities, DHEC is authorized to require a party to obtain approval of plans for disposal systems for such wastes. S.C. Code Ann. § 48-1-50(10) (1987). Further, DHEC may grant its approval by the issuance of a permit "under such conditions as it may prescribe . . . for the installation or operation of disposal systems . . ." S.C. Code Ann. § 48-1-50(5) (1987). As a means of underscoring the importance of obtaining prior approval through the permitting process, certain acts are unlawful without a permit. It is unlawful to construct or install a waste disposal system until the plans for such have been submitted to and approved by DHEC through the issuance of a permit. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1998). Further, it is unlawful for a person to discharge wastes into the environment, except in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).

Given the requirement for a waste disposal permit, if Gales's operation seeks to operate a waste disposal system, he must obtain a proper permit. A waste disposal system includes any system for disposing of "sewage, industrial wastes or other wastes." S.C. Code Ann. § 48-1-10(12) (1987). Such terms are broadly defined and are sufficiently inclusive to include dead animals and manure resulting from a broiler facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987). In the instant case Gales seeks to obtain a permit to construct a waste treatment and collection system for four houses that will house a total of 480,000 broilers per year and will produce animal wastes in the form of manure and dead animals. Further, Gales seeks to dispose of the manure and dead animals in a manner that will discharge such into the environment. Accordingly, Gales must obtain a permit from DHEC before he is allowed to construct the facility and DHEC may restrict the permit issued.

i. DHEC Restrictions

The application was reviewed by the DHEC Division of Water Pollution Control under the S.C. Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp.1998), as implemented through regulations promulgated as Regs. 61-43 "Standards for the Permitting of Agricultural Animal Facilities" effective June 26, 1998. Among other things, the regulations address site selection, waste management, manure storage and handling, dead animal disposal, odor and vector abatement, and maintenance and operation of the facility.

Based upon the regulations, DHEC granted the permit but imposed extensive as well as comprehensive restrictions. These conditions are addressed here.

1 Condition 1: Gales must notify the Wateree District Office when construction is complete and the plan is ready to be implemented in order to allow the district office to conduct the final inspection and issue the permit to operate. The permit to operate must be in place before Gales can remove any manure from the broiler barns.

2. Condition 2: Gales must obtain prior approval from the Wateree District Office if any manure or litter is to be land-applied on weekends so as to avoid spreading waste on weekends since most odor complaints associated with these types of facilities occur during the spreading of manure.

3. Condition 3: Gales must dispose of all medical wastes according to regulations since DHEC statutes and regulations prohibit medical waste from being disposed on the ground.

4. Condition 4: Gales must eliminate erosion problems by additional grading and filling. All disturbed areas around the barns must have vegetation or a ground cover to keep soil from washing away. Such a condition is designed to prevent erosion and thus prevent any pollutant discharge into the ground from the barn.

5. Condition 5: Gales must operate and maintain the waste system in accordance with the Waste Management Plan. In short, a violation of the Plan is a violation of the permit.

6. Condition 6: Gales may not spread waste within 200 feet of a property line if there is an inhabited dwelling within 1,000 feet. This condition avoids creating an odor nuisance during spreading on pasture or hay land.

7. Condition 7: If Gales spreads manure on cropland he must have the manure disked in within 24 hours of application to avoid creating odors and to avoid potential fly nuisances.

8. Condition 8: Gales must apply the waste only when weather and soil conditions are favorable and prevailing winds are blowing away from nearby opposite dwellings. This condition seeks to limit fly problems by avoiding fields when soil and weather conditions would create problems, such as applying waste onto wet soil. Waste with fly larvae and pupae must be disced into the ground immediately or treated with a fly control method.

9. Condition 9: Gales must allow a minimum 4-week recovery period between applications of waste on the land so as to avoid over-fertilizing and to avoid potential groundwater concerns.

10. Condition 10: Gales may not apply waste within 100 feet of watercourses, must immediately spread and incorporate manure on flood plains after the danger of major runoff events is past, must use lower rates of application on shallow soils to avoid groundwater contamination, and, on slopes over 300 feet long, must install terraces or surface drains to slow the movement of waste over the land. These measures avoid the potential for groundwater or surface water contamination.

11. Condition 11: Gales must promptly repair leaking waterers inside the barns and practice good sanitation to reduce fly problems and prevent runoff from inside the houses. This condition keeps the manure dry, reduces fly problems, prevents run-off, and prevents the occurrence of "hot spots" from wet manure sitting in litter. Further, wet manure must be removed and immediately disposed of by land application and discing into the soil. Also, any spillage during transportation must be immediately cleaned up.

12. Condition 12: Gales must keep specific information at the facility for DHEC's review and inspections by the Wateree District Office personnel. The Waste Management Plan requires soil sampling results and requires Gales to track the amount of solids removed from the facility to determine whether the facility is producing a significantly greater amount of manure than the Waste Management Plan included. If yes, then the Plan is amended to reflect what is actually going on at the site. Gales is required to identify the fields used for manure application and to assure that he is not putting all the waste in one spot. Gales must record the dates of land application of the waste, keep records of the mortality rate of the broilers, and record where the dead broilers are disposed.

13. Condition 13: Gales must use all sanitary precautions in collecting, storing, transporting, and spreading wastes to ensure the wastes are not spilled, the wastes are properly covered during storage and transport, and he is operating in accordance with the Waste Management Plan and the permit.

14. Condition 14: To reduce fly and odor problems, if waste is stockpiled more than three days prior to spreading the waste on land, the litter must be stored on a concrete pad or other acceptable means covered with black plastic to prevent fly breeding. The cover keeps water away from the manure and discourages fly breeding and odors. The plastic must be cut at the top to vent it to allow ammonia gases to escape with the vent hole covered with screen wire to keep flies and insects out.

15. Condition 15: Gales is again directed to cover the waste during transport.

16. Condition 16: Gales must dispose of dead broilers consistent with DHEC directions, and must call the DHEC 24 hour emergency number for directions in event of a massive die-off.

17. Condition 17: Gales must abate any transport nuisance at the facility such as complaints from dust, odor, flies, noise, surface or groundwater degradation, within a time frame set by DHEC.

18. Condition 18: Gales must operate and maintain the facility in a manner that avoids discharges into the environment in any fashion contrary to the Waste Management Plan, and if Gales abandons the facility, DHEC must be notified immediately.

19. Condition 19: At all times Gales must maintain an all-weather access road to the facility to enable DHEC to reach the site for operation and maintenance inspections.

20. Condition 20: Gales must secure a permit to operate prior to operating the facility.

21. Condition 21: Gales must obtain written approval from DHEC before making any changes in operational procedures which includes, among others, a change in ownership, increase in the number of animals housed, and changes in waste treatment.

22. Condition 22: Gales may not cause an undesirable level of odor at the facility and if such occurs, Gales is responsible for abating the odor to the satisfaction of DHEC.

23. Condition 23: Gales must report to DHEC on an annual basis the waste sampling results, soil monitoring results, and application rates for the waste utilization areas.

24. Condition 24: Gales must provide the nutrient content of the waste to all persons who accept the waste.

25. Condition 25: This condition identifies the nutrients and constituents for which dry animal wastes must be analyzed.

ii. Petitioner's Objections

When viewed in light of the extensive restrictions and conditions imposed upon Gales's facility, petitioners' objections do not warrant denial of the permit.

-- Health & Environment --

The petitioners assert the broiler houses will create excessive odor, dust, and flies to the detriment of the area and especially to the medical conditions of those living in the area. While certainly DHEC is principally charged with assuring the health of the public, DHEC is not charged with the responsibility of establishing the land use mix within an area. Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). Thus, the mere location of the broiler facility adjacent to neighboring properties is not a sufficient basis by itself to deny the permit.

In the evidence of this case, no persuasive testimony demonstrates a health danger to the residents of the area due to the broiler houses. The concerns over odor, dust and the presence of flies are all subject to sufficient and extensive limitations in the permit granted by DHEC. Accordingly, the creation of an unhealthy environment is not a valid basis for denying the permit request.

-- Water Contamination --

It is true that standing water is common on the areas near the broiler houses. However, a series of ditches is in place to control water run-off and the evidence does not establish that contamination is likely. First, the permit prohibits applying waste within 100 feet of watercourses. Thus, application of manure will not present a significant danger. Second, the permit requires that a lower rate of application must be made on shallow soils to avoid groundwater contamination. Third, the operation is a dry disposal system presenting no significant risk of water pollution to well water. Finally, the broiler houses are fully enclosed and will deny contact between the broiler manure in the house and rain water runoff.

Based on all the evidence, the operation and maintenance of the broiler facility, the method of spreading, and the method of accumulating manure will not present a danger of improper water runoff or groundwater contamination.

1. Positions of Parties

The petitioners assert the applicable law requires that the barns be placed no closer than 1,000 feet to neighbors' property lines. From their view, since the broiler houses will be within a distance of 200 to 300 feet from the neighboring property line, the permit should be denied. DHEC and Gales, however, assert the existing regulations do not impose a 1,000 foot setback. Thus, DHEC and Gales argue the location is proper.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

Gales's property will place the four broiler houses approximately 300 feet from the center line of S.C. Highway S-14-25 and 200 to 300 feet from the property line of two adjoining property owners. Two residences are 2,100 feet from the facility, a third is 2,300 feet, and a fourth is 4,500 feet from the proposed location. DHEC conducted a preliminary site inspection on May 7, 1998 and Gales submitted the completed written permit application on June 23, 1998. DHEC staff issued the permit on August 20, 1998.

Petitioner Colburn owns the adjacent 100-acre tract to the west of the Gales site. The Colburns intend to construct a family residence on the property but they have not indicated where they intend to build their residence on the 100 acres or how close it will be to the property line.

DHEC's method of examining permit requests for animal waste disposal facilities has involved both guidelines and regulations.

Prior to June 26, 1998, in its review of requests for permits to construct broiler house facilities, DHEC utilized guidelines as stated in a December 1, 1994 document entitled, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" (the guidelines). The guidelines reference a 1,000 foot setback from the property line as "standard" for the location of agricultural facilities.

Under the guidelines, DHEC has approved permits with setbacks less than 1,000 feet. See Foley v. South Carolina Department of Health and Environmental Control, 95-ALJ-07-0054-CC, June 1995; Alexander v. South Carolina Department of Health and Environmental Control. et al, 95-ALJ-07-0656-CC, June 29, 1996; Floyd. et al. South Carolina Department of Health and Environmental Control. et al, 96-ALJ-07-0439-CC, February 20, 1997; Willis v. South Carolina Department of Health and Environmental Control. et al, 98-ALJ-07-0107-CC, July 29, 1998. However, in at least two instances the DHEC Board found that a setback of 1,000 feet was necessary. See DHEC's October 8, 1998 orders from the appeal of DHEC and Wells v. Haley Farms, et al, ALJ No. 97-ALJ-07-0198-CC and Town of Silverstreet, et al. v. DHEC and ISE Newberry, Inc., ALJ No. 97-ALJ-07-0358-CC.

While before June 26, 1998, DHEC applied guidelines for its review, after that date DHEC began reviewing requests for permits under newly promulgate Regs. 61-43. Gales' permit, granted on August 20, 1998, was reviewed by DHEC under Regs. 61-43. Gales' permit seeks to construct four broiler houses 200 to 300 feet from the adjoining property line.

3. Conclusions of Law

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

A. Minimum setback requirement

Regulations in effect on June 26, 1998, require a setback of 200 feet from the property line of the adjacent property to the animal growing area. 24A S.C. Code Ann. Regs. 61-43.200.80.A(5) (Supp. 1998). This distance is a minimum siting requirement, and DHEC may require additional setback distances on a case-by-case basis. 24A S.C. Code Ann. Regs. 61-43.200.80.A(8) (Supp. 1998). Further, the minimum required setback can be reduced by written consent of the adjoining property owner. 24A S.C. Code Ann. Regs. 61-43.200.80.A(9) (Supp. 1998).

In the instant case, while Gales' permit application was dated June 23, 1998, the actual evaluation of the permit application took place after the new regulations became effective on June 26, 1998. In addition, the DHEC staff did not issue the permit until August 20, 1998. Accordingly, DHEC properly subjected the application to the new regulations.

Consistent with the new regulations, DHEC examined the property in light of the minimum setback requirement of 200 feet. 24A S.C. Code Ann. Regs. 61-43.200.80.A(5) (Supp. 1998). Further, in the instant case, DHEC has not elected to require an additional setback distance even though it has the discretion to require such. 24A S.C. Code Ann. Regs. 61-43.200.80.A(8) (Supp. 1998). Further, no adjoining property owner has given written consent to reduce the minimum setback required by the regulation, as allowed under Reg. 61-43.200.80.A(9) (Supp. 1998). Therefore, the minimum setback requirement for Gales' broiler houses is 200 feet from the property line.

B. Petitioner's objections

1. Requirement of 1,000 foot setback

Petitioners disagree with the minimum setback being 200 feet. Rather, they claim that a minimum setback of 1,000 feet is required for Gales' broiler houses. Petitioners' base their claim upon three distinct arguments. First, Petitioners argue that a minimum 1,000 foot setback is required by the 1994 guidelines. Second, Petitioners maintain that the Board's rulings in Haley Farms and Silverstreet sufficiently endorse the 1,000 foot setback referenced in the guidelines so as to render the new regulations ineffective to authorize the issuance of a permit with a lesser setback. Third, Petitioners assert that the General Assembly has "prohibited relaxation of the setback standard." I find these arguments must fail.

a. Effect of 1994 guidelines

Petitioners argue that a 1,000 foot setback is required by the 1994 guidelines since those guidelines are binding on DHEC. I disagree.

To be legally binding, the 1994 guidelines (the document that expresses the 1,000 foot distance) would have to be promulgated as regulations. See S.C. Code Ann. § 1-23-10(4) (Supp. 1998); see also Home Health Service, Inc. v. South Carolina Tax Comm'n, 312 S.C 324, 440 S.E.2d 375 (1994). It is undisputed that these guidelines were not promulgated as regulations. Therefore, the guidelines can have no legally binding effect and may be used only for the purpose for which they were originally intended to be used, i.e., as guidelines. See Town of Silverstreet, et al. v. DHEC and ISE Newberry, Inc., 97-ALJ-07-0358-CC (May 29, 1998).

b. Effect of prior DHEC Board rulings

Petitioners argue that in light of DHEC's Board decisions in Haley Farms and Silverstreet, the new regulations do not authorize the Gales' permit where the proposed site "fails to conform to the guidelines' 1,000 foot setback standard as more recently endorsed by the DHEC Board . . ." Further, the Petitioners imply that a reading of DHEC's decisions to the effect that the guidelines are not binding leads to the conclusion that DHEC's decisions are arbitrary. I disagree.

i. Haley Farms and Silverstreet

A minimum 1,000 foot setback is not a binding standard for the permitting of animal facilities in South Carolina and a proper reading of the Board's rulings in Haley Farms and Silverstreet does not transform the guidelines to that of a legally binding requirement. While superficially the Board's ruling in the Haley Farms case could be read to establish a 1,000 foot setback as a requirement,⁽¹⁾ such a reading cannot be adopted in light of the Board's ruling in Silverstreet rendered on the same day as Haley Farms.

In Silverstreet the Board explicitly established that the 1,000 foot measurement was not binding. In that decision, the Board agreed with the conclusions of law of the ALJD. Those conclusions unequivocally held that the guidelines were merely guidelines having no binding effect. In deciding that "[t]he facility shall be no closer than 1000 feet of an adjacent property line" the Board appears to have found a lack of substantial evidence supporting the setback utilized by the ALJ in his Findings of Fact. As such, the Board upheld the issuance of the permit but added an additional restriction based upon the circumstances of that case. Therefore, it is likely that the Board applied the same interpretation in both Haley Farms and Silverstreet, i.e., that the guidelines' reference to the 1,000 foot setback is not a binding requirement.

Further, to interpret the Board's rulings in Haley Farms and Silverstreet as an attempt to establish a binding norm does not make the guidelines binding but rather renders the guidelines invalid. That invalidity is reached since any such position would have to be promulgated as a regulation to have a legally binding effect in other cases. See S.C. Code Ann. § 1-23-10(4) (Supp. 1998); see also Home Health Service, Inc. v. South Carolina Tax Comm'n, 312 S.C 324, 440 S.E.2d 375 (1994). It is undisputed that the guidelines were not promulgated as a regulation, and therefore they can have no legally binding effect.

Finally, and in any event, the permits in Haley Farms and Silverstreet were issued prior to the effective date of the new regulations. Those regulations, not the guidelines, are controlling in the instant case.

ii. Arbitrariness

True, an agency cannot act arbitrarily in failing to follow established practices. Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992). However, nothing in Haley Farms or Silverstreet suggests DHEC is acting in an arbitrary fashion in the instant case.

First, the permits in Haley Farms and Silverstreet were issued prior to the effective date of the new regulations. Unlike Haley Farms and Silverstreet, the permit in the instant case was issued after the new regulations went into effect. Accordingly, the fact that the results in the instant case are different from Haley Farms and Silverstreet is not the result of arbitrariness but rather is the result of the application of the new regulations.

Second, past decisions demonstrate no arbitrariness is present in the instant case. As discussed previously, Haley Farms and Silverstreet were both decided based on the unique facts of those cases which led to the determination of a need for a 1,000 foot setback. In a similar vein, DHEC has examined other permits in which the unique facts of those cases resulted in setbacks less than 1,000 feet. See Foley v. South Carolina Department of Health and Environmental Control, 95-ALJ-07-0054-CC, June 1995; Alexander v. South Carolina Department of Health and Environmental Control. et al, 95-ALJ-07-0656-CC, June 29, 1996; Floyd. et al. South Carolina Department of Health and Environmental Control. et al, 96-ALJ-07-0439-CC, February 20, 1997; Willis v. South Carolina Department of Health and Environmental Control. et al, 98-ALJ-07-0107-CC, July 29, 1998. The totality of cases and decisions by DHEC shows that DHEC is not acting "arbitrarily in failing to follow its own guidelines and requirements" in issuing the Gales permit.

c. Prohibition on relaxation of setback requirement

Petitioners assert that the General Assembly has expressly required that the new regulations be at least as stringent as the existing guidelines. Petitioners cite S.C. Code Ann. § 47-20-160 (Supp. 1998) in support of their assertion. However, contrary to Petitioners' assertion, the referenced statute is not applicable to poultry facilities but only applies to confined swine feeding operations.

Section 47-20-160 (Supp. 1998) states the following:

(A) The department shall promulgate regulations for this chapter by January 1, 1998, and submit a report on its progress by January 1, 1997.

(B) The department shall promulgate regulations for siting and managing animal feeding operations with a capacity of 420,000 pounds of normal production of animal live weight or less at any one time, including land application of waste. The regulations must be at a minimum as protective as the department's current guidelines.

The language "regulations for this chapter" refers to Chapter 20 which is entitled "Confined Swine Feeding Operations." Further, the regulations that are to be "as protective as the department's current guidelines" are those regulations that address "siting and managing animal feeding operations" where "animal" is defined as "a domesticated animal belonging to the porcine species." S.C. Code Ann. § 47-20-10(2) and (3). "Porcine" means "of, relating to, or suggesting swine." Merriam-Webster OnLine: WWWebster Dictionary 1999; http://www.m-w.com/dictionary.htm (30 June 1999). Thus, § 47-20-160 (Supp. 1998) does not address poultry and Petitioners' assertion must fail.

2. Equal protection and due process claims

Petitioners also argue that DHEC's failure to extend to them the same benefit of the 1,000 foot setback as was extended to the adjoining property owners in Haley Farms and Silverstreet denies them equal protection and due process of law. I disagree.

"The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment." Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). In a similar manner, protection from governmental action under the due process clause is invoked only when the governmental action is arbitrary. Flemming v. Nestor, 80 S.Ct. 1367 (1960). Accordingly, if the instant case presents factors unlike those of other decided cases, DHEC's actions in this case do not address similarly situated parties nor can the action taken be found arbitrary.

Here the Petitioners have not shown that they are similarly situated to the adjoining landowners in those cases in which a 1,000 foot setback was imposed (Haley Farms and Silverstreet). Further, the Petitioners have not shown DHEC's decision in the instant case is the result of arbitrary action. In Haley Farms and Silverstreet, the Board based their rulings on the unique factors relevant to a determination in each case. Accordingly, the differences in the circumstances of those cases from the instant case demonstrate that neither equal protection nor due process is violated.

In Silverstreet, the neighboring landowners were contesting the construction of eight caged layer houses estimated to produce on an annual basis 15,500 tons of poultry waste from 960,000 laying chickens. In the instant case, the number of chickens (480,000) and the amount of waste (586 tons) is far less than that addressed in Silverstreet. Further, unlike the instant case, Silverstreet also involved an egg-washing facility to be operated in conjunction with the layer houses. The DHEC Board could have considered such factors in deciding that a 1,000 foot setback was needed.

The instant case is also unlike the Haley Farms matter. There one of the neighboring landowners, Haley, owned a tomato growing and packing business employing approximately 300 people during the annual harvest. The business was threatened by the perception of customers that the proximity of the broiler facility would pose a significantly increased risk of salmonella contamination. Such biological contamination was shown to be a concern in the produce industry. The likelihood of odors depositing in the tomato boxes, which, if detected by customers would cause them to reject the product, also threatened Haley's livelihood. Several produce buyers testified that they would cease business with Haley if a nearby broiler facility were permitted. The testimony demonstrated that the permitting of the broiler facility in such close proximity to the tomato farm would have devastated Haley's business. Additionally, there was evidence of the permit applicant's previous noncompliance with permit conditions for his existing facilities. None of these factors are present in the instant case.

Based on the foregoing, I find that the granting of a construction permit to Gales with a setback less than 1,000 feet will not result in disparate treatment of similarly situated persons in violation of the equal protection clause. Likewise, I find that issuance of the permit with the designated setback does not constitute arbitrary governmental action in violation of the due process clause.

IV. ORDER

Based upon the facts and law as established in this decision, DHEC is ordered to grant Construction Permit # 18,429-AG.

IT IS SO ORDERED.

_____________________________

RAY N. STEVENS

Administrative Law Judge

DATED: July 2, 1999

Columbia, South Carolina

1. See Board's Final Order dated October 8, 1998 ("[t]he Board reaches this decision based upon the fact that the facility is less than one thousand feet from an adjoining property line, in contravention of the Board's interpretation of the 'one thousand foot standard' setback requirement established in the Department's Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control.")