ORDERS:
ORDER AND DECISION
This contested case matter arises from the proposed decision of the South Carolina Department of
Health and Environmental Control ("DHEC") to grant Construction Permit #18,172-AG to Paul
Long for construction of a waste treatment/collection system for a turkey facility in Newberry
County. Petitioners Yancey and Patty Floyd, Tommy and Judy Whitehead, Jimmy and Connie
Morris, and Mr. and Mrs. Luther H. Long oppose the issuance of the permit and requested a
contested case hearing. The contested case was heard on January 16, 1997, before the
Administrative Law Judge Division pursuant to S.C. Code Ann. § 1-23-600(B) (Supp.1996). The
parties presented testimony and introduced exhibits, all of which have been carefully reviewed and
considered. The permit is granted.
STATEMENT OF THE CASE
DHEC issued a proposed state construction permit for a turkey litter waste management system
to Paul Long on October 1, 1996. The permit is necessary for Mr. Long to construct a facility
which will include one turkey brooder house and two turkey grow-out or range houses and will
require the treatment/disposal of approximately 633.6 tons of waste per year. The proposed
permit, which includes twenty-one special conditions, provides for a waste management plan for
the storage and land application of the waste as fertilizer, which will consist of turkey manure,
sawdust and wood shavings from the turkey houses.
Petitioners own land in the vicinity of the proposed site of Paul Long's turkey facility. The
Petitioners presented the following issues for determination:
1. Whether Paul Long complied with all applicable statutes in applying to build the turkey facility.
2. Whether DHEC has properly evaluated the surface contamination which will result from the
disposal of waste produced by the proposed turkey facility.
3. Whether DHEC has properly monitored the contamination level of Beaver Dam Creek, so as to
establish the effect of the runoff into it resulting from the waste disposal from the proposed turkey
facility.
4. Whether the construction of these proposed turkey houses, in addition to the other poultry
houses in the area, will significantly increase the airborne insect problem in the area.
5. Whether the construction of the proposed turkey houses will emit such an offensive odor so as
to make uninhabitable the surrounding houses and decrease the value thereof.
6. Whether DHEC is prepared to properly monitor the waste management plan for the proposed
turkey facility so as to ensure compliance with it.
DISCUSSION
A. DHEC's Authority to Issue the Permit
The proposed project will produce animal wastes in the form of manure and dead turkeys. DHEC
has general responsibility for matters involving human health and environmental protection,
including the handling and disposal of animal wastes, pursuant to the South Carolina Pollution
Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp.1996). Persons are required to
obtain approval of plans for waste disposal systems and acquire a permit for the installation or
operation of disposal systems. S.C. Code Ann. § 48-1-50(10) (1987). Accordingly, a permit to
construct the proposed facility is required from DHEC, and limitations may be imposed upon the
permit. S.C. Code Ann. §§ 48-1-10(12); 48-1-10(4), (5), and (6) (1987). The installation or
operation of the disposal systems are subject to the conditions set forth in the permit. S.C. Code
Ann. §§ 48-1-50(5) and 48-1-90(a) (1987).
Petitioners question whether Mr. Long has complied with all applicable statutes in applying to
build the turkey facility. Petitioners have cited statutes and regulations which are not applicable
to this permit, such as 24 S.C. Code Ann. Regs. 61-9 (Supp.1996), which governs National
Pollutant Discharge Elimination System (NPDES) Permits for "point source" discharges. While
an NPDES permit is required for certain types of concentrated animal feeding operations, Mr.
Long's proposed facility and dry litter system do not meet those criteria. 25 S.C. Code Ann.
Regs. 61-66 (1982), relating to "Industrial Waste Disposal Sites and Facilities," also cited by
Petitioners, has been superseded by the Solid Waste Policy and Management Act of 1991.
Petitioners also cite the South Carolina Solid Waste Policy and Management Act of 1991, S.C.
Code Ann. §§ 44-96-10 et seq. (Supp.1996); however, the Act specifically excludes from the
definition of "solid waste," the "application of fertilizer and animal manure during normal
agricultural operations." S.C. Code Ann. § 44-96-40(46). Moreover, Mr. Long's permit relates
to waste treatment and collection systems, not disposal facilities. Finally, 25A S.C. Code Ann.
Regs. § 61-100 (Supp.1996) "Non-hazardous Solid Waste Management Planning," cited by
Petitioners, was repealed on May 24, 1996.
B. DHEC Guidelines and Permit Restrictions
As stated above, the South Carolina Pollution Control Act sets forth the controlling principles and
applicable law for the proposed permit. The Act, however, does not contain specific permitting
criteria. In fact, no stated criteria or definition exists in statute or regulation setting forth the
factors to be considered in determining the conditions under which a permit for construction of a
waste treatment/collection system for a turkey facility may or must be granted.
Where a statute provides controlling principles, an administrative agency may exercise a large
measure of discretion within those principles. 1 Am. Jur. 2d Administrative Law § 118 (1962).
An agency decision must be reached utilizing reasoned judgment, be based upon adequate
determining principles and a rational basis, and governed by fixed rules or standards to avoid
being arbitrary. Deese v. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App.
1985). Criteria for permitting is not required to be so specific as to be all inclusive in setting forth
factors to be considered; however, factors must not be arbitrarily limited by unwritten internal
agency policy. See Home Health Services v. S.C. Tax Com'n, S.C. , 440 S.E.2d 375 (1994); See also Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
In the absence of agricultural facility permitting regulations, DHEC attempts to consider all
relevant factors related to the construction and operation of the prosed facility and its impact
upon the citizens and environment of the State. Based upon its past permitting and enforcement
experience, DHEC routinely considers a standard laundry list of factors. Those factors are
included in written guidelines published by DHEC entitled "Environmental Guidelines and
Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in
South Carolina" (April 1985), and the "Agricultural Facility Permitting Requirements of the
Bureau of Water Pollution Control" (December, 1994). The guidelines provide a framework for
the permitting process including, among other things, site selection, waste management, manure
storage and handling, dead animal disposal, potential nuisances caused by odors and vectors such
as flies, and maintenance and operation of the facility. As part of site selection, DHEC considers
in part: the topography of the site; the distance to neighboring residences; cover crops and trees
in the area; prevailing wind directions and the distance to any river, tributary, branch, etc.
Because the DHEC guidelines are not promulgated regulations, they do not have the force and
effect of law. See Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C.
488, 413 S.E.2d 13 (1991). The determination to approve or deny a permit application must be
based upon the individual merits of each application. Since the DHEC guidelines do not have the
force and effect of law, this tribunal must consider all factors and evidence relevant to granting an
agricultural facility permit, and, if necessary, to impose such restrictions to the permit as is
appropriate under the criteria followed. DHEC's guidelines are not an exhaustive or sacrosanct
collection of permit criteria. All reasonable factors not inconsistent with the controlling principles
of the applicable statutory provisions should be considered as evaluative criteria.
Mr. Long's application was considered and approved by DHEC in a reasonable manner consistent
with similar applications. Considering the totality of the evidence submitted relevant to evaluate
site selection and the proposed waste management plan, the proposed permit with the
incorporated restrictions is reasonable.
C. The Petitioners' Objections to the Permit
Petitioners complain that existing livestock and poultry operations in the area have contaminated
neighboring lands and waters and created odor, rodent, and insect problems. Petitioners fear that
the operation of yet another agricultural facility in the region will create additional problems and
exacerbate existing ones. Accordingly, Petitioners object to the issuance of the permit and the
construction and operation of the proposed turkey facility. Petitioners claim that construction of
the turkey houses will significantly increase the airborne insect problem in the area and will emit
such an offensive odor so as to make uninhabitable the surrounding houses and decrease the value
of their property. They claim the area is saturated with such facilities.
This Court's consideration of the Petitioners' opposition to the issuance of the permit is limited to
issues of environmental and health protection and pollution control. This Court must confine its
examination only to those issues specifically related to the construction of a waste treatment and
collection system for the storage and utilization of litter from Paul Long's proposed
turkey facility. It is beyond the scope of the Administrative Law Judge Division to intervene in
local zoning matters or to enjoin a potential future civil nuisance.
While DHEC's authority is broad, in the absence of a duty related to the health and welfare of the
public, neither DHEC nor the Administrative Law Judge Division is charged with the
responsibility of establishing the land use mix within an area. Land use decisions are primarily the
responsibility of the local zoning authority, which exercises wide discretion in decision-making. See Bear Enterprises v. County of Greenville, ___S.C.___, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). In the instant case,
Mr. Long's proposed facility is located in a rural, agricultural area largely devoted to farming and
livestock.
The special conditions in the permit give some protection to adjoining landowners from nuisances
that may result from the turkey operation and require immediate abatement of any nuisance
created. Several special conditions contained in the permit are included in order to prevent fly
and odor nuisances from occurring. Special Condition Eight requires
Mr. Long to apply waste only when prevailing winds are blowing away from nearby dwellings,
and provides for fly control. This condition also controls potential fly problems by avoiding land
application of manure during periods when soil and weather conditions may create potential fly
problems, such as applying waste onto wet soil. Additionally, this condition requires that waste
with fly larvae and pupae must be immediately disked into the ground or treated with a fly control
method. Under the permit, it is Mr. Long's responsibility to control flies.
In addition, Special Condition Eleven requires Mr. Long to practice good sanitation in the turkey
houses by removing and immediately disking into soil any wet manure to remove potential fly and
odor problems. Special Condition Fourteen contains provisions for avoiding fly and odor
problems by requiring that if waste is stockpiled on site for more than 3 days, it must be placed on
a concrete pad or other acceptable means and covered with black plastic to prevent fly breeding.
Finally, Special Condition Seventeen requires Mr. Long to abate any complaints resulting from
flies and odors within a time frame designated by DHEC. Mr. Glenn Shealy of DHEC's Central
Midlands Environmental Quality Control testified that the site evaluation by DHEC demonstrated
that Mr. Long's proposed turkey houses are located in an area where prevailing winds will carry
any naturally-occurring odors in an easterly direction away from the Petitioners. In addition, the
site is surrounded on at least three sides by a natural tree buffer which will block and divert wind
above and away from neighbors' homes and divert any odors.
DHEC should respond immediately to any complaints regarding fly and odor problems and must
require immediate action by Mr. Long to correct them. While nuisances should be avoided, the
primary control afforded by the permitting process is to prevent unsanitary conditions which may
create health or environmental hazards. Complaints to DHEC about nuisances created by the
facility could result in administrative sanctions. Additionally, if Petitioners are harmed by the
operation of the facility, adequate remedies are available through the civil courts of this State.
The special conditions in the permit address the environmental concerns raised. Petitioners
question whether DHEC has properly evaluated the surface contamination which would result
from waste disposal from the turkey facility. The facility is a "no-discharge" waste system which
will land-apply the litter from the turkey houses onto fields as fertilizer after the turkey houses are
cleaned out once a year. The proposed facility will not have a waste disposal system or lagoon
located on-site. The waste management plan prepared by the NRCS, which is specifically
incorporated into the permit, includes nine concerns to be addressed in operation and maintenance
of the waste management system. Special Condition Ten of the permit restates the waste
management plan procedures for applying waste. It also incorporates the setback for not applying
waste within 100 feet of watercourses, requires the farmer to immediately spread and incorporate
the manure on floodplain areas after the danger of major runoff is past, requires the farmer to use
lower rates of application on shallow soils to avoid groundwater contamination, and provides that
on slopes over 300 feet long, terraces or surface drains should be installed to slow the movement
of waste over land. The purpose of this special condition is to avoid the potential for
groundwater or surface water contamination. In addition, Special Condition Sixteen requires the
farmer to dispose of dead birds in a manner approved by DHEC. Petitioners presented no
reliable, probative evidence that DHEC has not properly evaluated the surface contamination
resulting from the waste disposal from the proposed turkey facility.
Petitioners also question whether DHEC has properly monitored the contamination level of
Beaver Dam Creek so as to establish the effect of the runoff resulting from the waste disposal.
Mr. Shealy testified that Beaver Dam Creek was located at least 1,000 to 1,500 feet away from
the proposed barns and that any nonpolluted runoff which might occur from Mr. Long's facility
would be dissipated over land and would not affect any body of water. In addition, Mr. Shealy
testified that Mr. Long's proposed turkey facility would not produce polluted runoff since no
waste would be disposed or discharged on the site, or come into contact with the soil for more
than three days under the permit. As previously set forth, Mr. Gibson testified that the special
conditions of the permit and the waste management plan specifically address avoidance of
potential surface water and groundwater pollution. In addition, Special Condition Eighteen
requires Mr. Long to operate and maintain the facility to avoid discharges into the environment.
The Petitioners did not present any reliable, probative evidence that DHEC has failed or will fail
to properly monitor Beaver Dam Creek or that Mr. Long's facility will likely result in polluted
runoff to the Creek. The waste management plan and proposed permit adequately addresses all
applicable pollution protection considerations.
Finally, the Petitioners question whether DHEC is prepared to properly monitor the waste
management plan for the facility to ensure compliance. Mr. Gibson testified that DHEC ensures
compliance with the permit through Special Condition Twelve, which requires the farmer to
maintain records at his facility for review by DHEC personnel during routine operation and
maintenance inspections. These records include soil tests on all areas where manure has been
applied every two years, the amount of solids removed from the facility, identification of the fields
where the manure is land-applied, record of the dates of land application of the waste, records of
the mortality rate of the turkeys, and the location where the dead turkey are disposed. Mr. Shealy
testified that DHEC's Central Midlands Environmental Quality Control conducts routine operation
and maintenance inspections of facilities in Newberry County to ensure that the facility is
complying with the permit and the waste management plan by inspecting the records the farmer is
required to maintain at his facility. The Petitioners presented no evidence that DHEC would not
properly monitor Mr. Long's compliance with his waste management plan.
FINDINGS OF FACT
By a preponderance of the evidence, I find the following facts:
(1) On September 25, 1996, Paul Long filed with DHEC an Application for Permit to Construct a
Waste Treatment/Collection System and a Waste Management Plan with DHEC for a turkey
facility to be constructed in Newberry County, South Carolina.
(2) The proposed turkey facility includes 3 (three) turkey houses, consisting of one brooder house
and two range houses with a concrete perimeter and packed clay floors topped by wood shavings
and sawdust.
(3) The site was inspected by DHEC and the Natural Resources Conservation Service (NRCS) of
the U.S. Department of Agriculture.
(4) A waste management plan dated September 19, 1996 was developed for Paul Long's facility
by the NRCS.
(5) The NRCS waste management plan was incorporated into the permit application.
(6) All adjacent property owners whose property line falls within 1,000 feet of the proposed
facility were sent notification letters of the proposed construction. None of these adjacent
property owners objected to the issuance of the permit.
(7) The DHEC Bureau of Water Pollution Control deemed the application complete and reviewed
the application and waste management plan under DHEC statutes and informal guidelines.
(8) The application and waste management plan were reviewed by the DHEC Bureau of Water
Pollution Control pursuant to the South Carolina Pollution Control Act, S.C. Code Ann. §§
48-1-10 et seq. (1987 and Supp.1996), and the informal guidelines compiled in the following
DHEC publications: "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle,
Other Animal Operations and Peach Packers in South Carolina" (April 1985) and the
"Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control"
(December, 1994).
(9) Petitioners, none of whom own property located within 1,000 feet of Mr. Long's proposed
facility, filed objections to the proposed construction permit with DHEC.
(10) On October 1, 1996, following review of the application and waste management plan and
after consideration of the Petitioners' objections, DHEC issued a state construction permit,
#18,172-AG, to Paul Long in accordance with the waste management plan prepared by NRCS,
subject to 21 special conditions imposed by DHEC and incorporated into the proposed permit.
(11) Petitioners were given notice by certified mail of DHEC's decision to issue the permit and
were advised of their right to request a contested case hearing, which they did.
(12) Upon receipt of the Petitioner's Request for Contested Case Hearing, DHEC transmitted the
matter to the Administrative Law Judge Division.
(13) A hearing on the merits was conducted on January 16, 1997, and notice of the time, date,
location, and subject matter of the hearing was given to all parties.
(14) Paul Long seeks to construct one turkey brooder house and two turkey range houses that
will house approximately 16,000 turkeys per batch.
(15) The proposed facility will produce approximately 3.3 batches of turkeys annually.
(16) The turkeys will be brought into the brooder house as poults and raised to a weight of about
six pounds in six to eight weeks. At that time, the turkeys and the litter from the brooder house
will be divided and moved into the two range houses where the turkeys will be raised until they
reach a weight of 31 pounds at approximately 18 weeks of age.
(17) The proposed operation will produce animal wastes in the form of manure and dead animals.
(18) The proposed operation will produce approximately 633.6 tons of waste annually.
(19) The litter will be removed from each of the range houses once a year.
(20) In accordance with the permit's waste management plan, litter removed from a range house
must be either immediately land-applied as fertilizer or stored on site for future land application.
(21) The proposed waste management plan developed for Paul Long by NRCS provides for
storage and land application of the animal wastes.
(22) No land application of manure will occur on the site of the proposed facility.
(23) The waste management plan requires the use of 341 acres of hayland, pasture, and cropland
for application of the litter from the proposed turkey operation.
(24) Paul Long has the use of adequate acreage for land application of the 633.6 tons of waste to
be produced annually by his turkey facility. The land identified for land application in the waste
management plan could utilize 1,092 tons of manure per year using the optimum application rates
and 1,401 tons of manure per year using the maximum rates.
(25) The closest watercourse, Big Beaver Dam Creek, is located approximately 1,500 feet from
the proposed turkey facility.
(26) Mr. and Mrs. Luther Long are the closest Petitioners who actually reside on their property.
Their residence is located over 2,000 feet from Mr. Long's proposed turkey facility.
(27) Petitioners Jimmy and Connie Morris own property adjacent to Paul Long's proposed turkey
facility, located approximately 1,600 feet from the proposed turkey facility. While the Morrises
do not currently reside on their property, they have a cabin on their property which is located over
1,900 feet from the proposed turkey facility.
(28) Petitioners Yancey and Patty Floyd own land and reside 2,800 feet from the location of the
proposed turkey facility.
(29) Petitioners Tommy and Judy Whitehead own property and reside over one mile (6,000 feet)
from the location of the proposed turkey facility.
(30) Petitioners oppose the issuance of the permit on the grounds that the proposed turkey facility
will decrease the use and enjoyment of their property and may cause harm to the environment.
(31) During the site evaluation, waste management plan review, and application consideration
process, DHEC utilized internally formulated interpretive guidelines which address site selection,
waste management, manure storage and handling, dead animal disposal, water pollution control,
nuisances caused by odors and vectors such as flies, and operation and maintenance of the facility.
(32) The location of the Mr. Long's proposed facility was approved by DHEC pursuant to the
internally formulated interpretive guidelines based on a number of factors, including the rural,
agricultural community surrounding the proposed turkey houses, distance from neighboring
inhabited dwellings, distance from watercourses, the location on adequately drained land, and the
isolated location of the site within a natural tree buffer.
(33) Based upon the above factors, DHEC incorporated 21 special conditions into the
construction permit designed to protect the environment and to ensure proper operation of the
waste management facility.
(34) The permit conditions provide adequate measures to control the times and manner for
land-applying the manure.
(35) The permit conditions provide adequate measures to control the maintenance and operation
of the facility.
(36) The permit conditions provide adequate measures for maintaining records required to be kept
by the operation for monitoring by DHEC.
(37) The permit conditions provide adequate measures to protect the environment by setting forth
requirements for storage and land application of the manure.
(38) The permit conditions provide adequate measures to control future changes in the operation
of the facility.
(39) The permit conditions provide adequate measures to control and to abate potential nuisances
from flies, pests, and odor.
(40) The proposed facility is a dry-litter disposal system presenting no serious risk of water
pollution.
(41) DHEC routinely inspects facilities to ensure compliance with the permit and waste
management plan.
(42) DHEC has the authority to inspect facilities in response to complaints and to require
immediate abatement of nuisances.
(43) DHEC has the authority to enforce compliance with the permit and waste management plan,
including the imposition of administrative sanctions.
(44) A permit to operate the facility must be secured by Paul Long within ninety (90) days of the
completion of construction of the system.
(45) The permit to operate will include the same terms and conditions as the construction permit.
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.1996).
(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. South
Carolina Dept. of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App.
1989).
(3) 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).
(4) 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).
(5) 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).
(6) It is unlawful to construct or install a waste disposal system prior to approval of a waste plan
and issuance of a permit by DHEC. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1996).
(7) The discharge of animal wastes into the environment must only be done in compliance with a
permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).
(8) 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).
(9) "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals
and manure resulting from a turkey facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987).
(10) DHEC is principally charged with assuring the health and welfare of the public by controlling
air and water pollution, and while DHEC's authority is broad, in the absence of a duty related to
the health and welfare of the public, DHEC is not charged with the responsibility of establishing
the land use mix within an area. See S.C. Code Ann. § 48-1-20 (1987).
(11) Land use decisions are primarily the responsibility of zoning authorities who exercise wide
discretion in decision making. See Bear Enterprises v. County of Greenville, ___S.C.___, 459
S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).
(12) The guidelines utilized by DHEC are reasonable and were fairly applied in the application
review process for Paul Long's permit application.
(13) The issuance of construction permits for turkey facilities is governed by the South Carolina
Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp.1996) (PCA). Under
the PCA, it is unlawful for any person to discharge wastes into the environment of this State
except as in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90 (1987).
(14) The PCA requires that a permit be acquired before disposing of the waste generated by the
facility. S.C. Code Ann. § 48-1-100(A) (Supp.1996).
(15) S.C. Code Ann. § 48-1-100 (Supp.1996) provides in part:
A person affected by the provisions of this chapter or the rules and regulations adopted by
the department desiring to make a new outlet or source, for the discharge of sewage,
industrial waste or other wastes, or the effluent therefrom, or air contaminants, into the
waters or ambient air of the State, first shall make an application to the Department for a
permit to construct and a permit to discharge from the outlet or source. If after appropriate
public comment procedures, as defined by department regulations, the department finds that
the discharge from the proposed outlet or source will not be in contravention of provisions
of this chapter, a permit to construct and a permit to discharge must be issued to the
applicant.
(16) S.C. Code Ann. § 48-1-30 (1987) authorizes the promulgation of regulations to implement
the Pollution Control Act, to govern DHEC's procedure with respect to meetings, hearings, filing
of reports, the issuance of permits and all other matters relating to procedure. As of this date, no
regulations detailing guidelines and procedures for agricultural facility permitting and the waste
disposal systems for those facilities, have been adopted by the General Assembly.
(17) No stated criteria or definition exists in statute or regulation setting forth the specific factors
to be considered in determining the conditions under which a permit for construction of a waste
treatment/collection system for a turkey facility may or must be granted.
(18) A regulatory body possesses not only expressly conferred powers but also those powers
necessarily inferred or implied to enable it to effectively carry out its duties. City of Rock Hill v.
South Carolina Department of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327
(1990); Carolina Water Service, Inc. v. South Carolina Pub. Serv. Comm'n, 272 S.C. 81, 248
S.E.2d 924 (1978).
(19) Where a statute provides controlling principles, an administrative agency may exercise a
large measure of discretion within those principles. 1 Am. Jur. 2d Administrative Law§ 118
(1962).
(20) DHEC's powers 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).
(21) An agency decision must be reached utilizing reasoned judgment and be based upon adequate
determining principles and a rational basis. Deese v. State Board of Dentistry, 286 S.C. 182, 332
S.E.2d 539 (Ct. App. 1985).
(22) In determining whether a rule should be promulgated as a regulation, courts look to the
actions of the agency, not the label the agency gives. Columbia Broadcast System, Inc. v. United
States, 316 U.S. 407 (1942); see also Owen Industrial Products, Inc. v. South Carolina
Department of Health and Environmental Control, C.A. #91-CP-40-1444 (1992). Whether a
particular agency proceeding announces a rule or a general policy statement depends upon
whether the agency action establishes a "binding norm." Home Health Service, Inc. v. South
Carolina Tax Com'n, 312 S.C. 324, 440 S.E.2d 375 (1994). If the rule acts as a "binding norm"
and gives the agency no discretion in its application, the rule is invalidly enacted regulation. American Bus, 627 F.2d at 529.
(23) Criteria for permitting is not required to be so specific as to be all inclusive in setting forth
factors to be considered; however, factors must not be arbitrarily limited by unwritten internal
agency policy. See Home Health Services v. S.C. Tax Com'n, S.C. , 440 S.E.2d 375 (1994); See also Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
(24) DHEC's guidelines for the issuance of agricultural facility permits are not promulgated
regulations and, therefore, do not have the force and effect of law. See Captain's Quarters Motor
Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
(25) DHEC's consideration of the evaluative criteria contained in its guidelines to agricultural
permit applications is reasonable in the absence of any specific regulations on the subject, so long
as the guidelines are not in contravention of or beyond the authority granted by the Pollution
Control Act and are not used as an inflexible binding norm, eliminating agency discretion. American Bus, 627 F.2d at 529.
(26) Because no specific regulation governs the boundaries and requirements of a permit
applicable to this particular situation, and because the DHEC guidelines do not have the force and
effect of law, this tribunal must consider all relevant evidence and materials in deciding whether
to grant an agricultural facility permit, including but not limited to the factors and criteria
contained in the DHEC guidelines.
(27) The determination to approve or deny a permit application must be based upon the individual
merits of each application. All reasonable factors not inconsistent with the controlling principles
of the applicable statutory provisions should be considered as evaluative criteria.
(28) The following factors were considered in site selection: the topography of the site; the
distance to neighboring residences; cover crops and trees in the area; prevailing wind directions;
and the distance to any river, tributary, branch, etc.
(29) The special conditions contained in the permit give Petitioners considerable protection in that
they, among other things, require that any nuisance may require additional controls and that the
waste management system must be properly operated and maintained so as to prevent discharges
into the environment. The special conditions also expressly include: manure cannot be stored on
site prior to land application for more than three days unless the manure is stockpiled on a
concrete pad or other acceptable means and covered by black plastic; manure should be
land-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; wastes wet enough to cause fly or other problems will
be removed from the houses; dead turkeys must be disposed of in a manner approved by DHEC;
cleanup of any spillage occurring during transport of the waste; during land application, waste
cannot be applied within 100 feet of watercourses, must be immediately spread and incorporated
into floodplain areas after the danger of major runoff is past; lower rates of application must be
used on shallow soils to avoid groundwater contamination, and terraces or surface drains should
be installed on slopes over 300 feet long to slow the movement of waste over land; and waste
land-applied to cropland is to be disked in immediately. If in the future Petitioners are harmed by
the operation of the facility, adequate remedies are available in the courts of this State.
(30) Petitioners have failed to show by a preponderance of the evidence that State Construction
Permit #18,172-AG should not be issued. The Permit was properly applied for by Paul Long and
reviewed by DHEC under all appropriate statutes.
(31) Any issues raised in the proceedings or hearing of this case but not addressed in this Order
are deemed denied pursuant to the Rules of Procedures for the Administrative Law Judge
Division, Rule 29(B).
ORDER
IT IS HEREBY ORDERED that State Construction Permit #18,172-AG be issued as written to
Paul Long for construction of a waste treatment/collection system for a turkey grow-out facility
and that the stay of the Permit is hereby vacated.
AND IT IS SO ORDERED.
____________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 20, 1997
Columbia, South Carolina |
