SC Administrative Law Court Decisions

This contested case arises from the decision of the South Carolina Department of Health and Environmental Control (Department) to grant State Construction Permit, #18,388-AG, to Jeffrey Davis Broiler Facility (Davis) for the expansion of a chicken broiler facility. Construction of this facility is proposed in Lexington County, South Carolina. Petitioner is a neighboring property owner who seeks denial of the permit. A hearing was held on May 26, 1998, at the Administrative Law Judge Division Offices.

The issue considered was the suitability of the expansion of the current operation which consisted of six chicken broiler houses to a facility consisting of ten houses.

Davis submitted an application and Waste Management Plan with the Department for an expansion to his chicken broiler facility in Lexington County, South Carolina. The site was inspected by the Department and the Natural Resources Conservation Service (NRCS), and a plan was developed for Davis by the United States Department of Agriculture (USDA). The Department's Division of Water Pollution Control reviewed this application 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 "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" manual (December 1, 1994) (guidelines). Notification letters of the proposed construction were sent to landowners whose adjoining property line fell within 1,000 feet of the facility proposed by Davis. The Department issued state construction permit #18,388-AG to Davis on February 3, 1998. Afterwards, Petitioner appealed the issuance of the permit by letter dated February 10, 1998.

The issuance of construction permits for chicken broiler 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 developed guidelines which established the permitting procedures for waste disposal system construction permits. The Department utilized its guidelines in the site evaluation and permitting process.

Petitioner asserts that the permit expanding the Davis broiler facility should be denied because:

1. The expanded facility will constitute a nuisance because it will cause an increase of noxious odors emanating from the facility.

2. The expanded facility will result in harm to a hairdressing business owned by the petitioner's wife and located in their home because of the increased odors from the facility.

The Department and Davis assert that in view of the restrictions on the permit preventing excessive odors the permit is properly granted. Additionally, the Department asserts it complied with all appropriate and available guidance on agricultural facility permitting.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of evidence:

1. Davis seeks to expand his chicken facility currently consisting of six broiler houses to ten houses, each holding a maximum of 25,000 birds for a maximum total of 250,000 birds. The proposed project will produce a substantial amount of waste in the form of manure, litter and dead chickens. Therefore, Mr. Davis must obtain approval of his plans for a waste disposal system and acquire a permit for the installation or operation of the waste disposal system because this waste will be discharged into the environment. See the South Carolina Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (1987 and Supp. 1997).

2. The facility is located in a rural, agricultural area of Lexington County.

3. Notification letters of the proposed construction were sent to all landowners within 1,000 feet of the facility proposed by Davis. DHEC received objections from a number of citizens. After consideration of the objections, DHEC issued a construction permit #18,388-AG for the broiler house expansion to Davis on February 3, 1998 with 21 special conditions. Those conditions are listed and summarized as follows:

Condition 1: Davis must notify the Central Midlands EQC District office when construction is complete 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 Davis can remove any litter from the broiler houses.

Condition 2: Davis must obtain prior approval from the Central Midlands EQC District if any manure is to be land-applied on weekends.

Condition 3: All medical wastes must be disposed of according to DHEC regulations.

Condition 4: Erosion problems must be eliminated from the facility by performing additional grading and filling.

Condition 5: Davis must operate and maintain the system, including all special conditions in accordance with the Waste Management Plan developed by Thomas Stone, NRCS District Conservationist.

Condition 6: Davis must obtain written approval from neighbors if wastes are to be spread on hay or pasture lands within 200 feet of the neighbor's dwelling.

Condition 7: All waste spread on cropland must be disced into the soil within 24 hours after it is applied.

Condition 8: Waste may be applied only when weather and soil conditions are favorable and when prevailing winds are blowing from nearby opposite dwellings. Any waste that contains fly larvae and fly pupae must be disced into the ground immediately or be treated with an approved and effective fly control method. If the waste disposal on a land area creates a fly problem for the community, the owner or applicator will be responsible for the control of all flies resulting from the application of the waste.

Condition 9: Allow a minimum of 4-week recovery period between applications. Sufficient acreage must be available to rotate applications to utilize nutrients in waste for crop production.

Condition 10: When applying waste, follow the procedures below:

a. Do not apply "wastes" closer than 100 feet to waterways, streams, lakes, wells, springs, or ponds.

b. Spread and immediately incorporate manure on flood plains after danger of major runoff events is past.

c. Use lower rates of application on shallow soils over bedrock to reduce possible pollution of groundwater.

d. On slopes over 300 feet long in cropland, install terraces or surface drains to trap sediment and increase flow time to outlet.

Condition 11: Repair any leaking waters promptly and practice good sanitation to prevent or 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, applied to the land and disced in if needed to eliminate the fly problem. Should any spillage occur during the transportation of the waste, the owner/operator shall take immediate steps to clean up the waste.

Condition 12: Keep written logs and make them available for DHEC to review. The logs must contain the following information:

a. Davis will have a soil test performed annually on all the areas that waste has been applied. This soil test must monitor for nitrogen, potassium, and phosphorous.

b. An estimate of the amount of solids and/or liquids removed from the individual facility.

c. A listing identifying upon which site the solids and/or liquids were land applied and the amount applied.

d. The date when solids and/or liquids were applied.

e. The number of birds which died per month.

f. Record where and how dead birds were ultimately disposed.

Condition 13: Use all sanitary precautions in the collection, storage, transportation, and spreading of wastes.

Condition 14: Wastes shall not be stockpiled more than three (3) days prior to spreading unless it is stored on a concrete pad and/or other acceptable means covered with black plastic to prevent fly breeding. A four (4) inch diameter hole should be cut in the plastic at the top of the pile and vented with screen wire to let the gases escape. Soil should cover the edges of the plastic to secure it down.

Condition 15: The body of all vehicles transporting waste shall be wholly enclosed, or shall at all times, while in transit, be kept covered with a canvas cover provided with eyelets and rope tie-downs, or any other approved method which will prevent blowing or spillage of loose material or liquids.

Condition 16: Dead birds must disposed in a disposal pit as detailed in the waste management plan or in another manner approved by the Department. If a massive die-off occurs, Davis must notify the Department's twenty-four hour number at once.

Condition 17: Any nuisance generated at this facility that results as a transport nuisance (dust, odor, flies, noise, surface and groundwater degradation) must be abated within a time frame designated by DHEC.

Condition 18: The waste management system must be operated and maintained in accordance with State and Federal law so as to prevent discharges to the environment. Should this waste management plan fail to function as intended, then additional control or treatment of the wastes may be required. Also, Davis agrees that should conditions such as abandonment and/or expansion occur, the Department will be notified immediately.

Condition 19: The permit may be transferred to another party only under the following conditions:

(a) Davis must notify DHEC of the proposed transfer at least thirty (30) days in advance of the proposed transfer date;

(b)A written agreement must be submitted to DHEC between the existing and new permittee containing a specific date for the transfer of permit responsibility, coverage, and liability for violations up to that date and thereafter.

Condition 20: Davis must maintain an all-weather access road to the facility at all times.

Condition 21: Davis must secure an approval to operate prior to placing facility in operation.

4. DHEC's expert witness, Henry Gibson, testified that he participated in the drafting of the Agricultural Facilities Permitting Regulations, to be codified at S.C. Code Regs. 61-43. He further testified that these regulations were in their final form and had "clocked out" of the legislature, and would become effective upon their publication in the State Register in June of 1988. The Davis permit application would have been granted had the new regulations been used to evaluate the application.

5. Davis submitted a Waste Management Plan prepared by the Natural Resources Conservation Service, U.S. Dept. of Agriculture, for the land application of manure which will consist of dry litter from the broiler houses. This system is called a "dry litter facility" because the manure the animals produce is deposited on the concrete floor of the houses and absorbed by dry sawdust. The birds are raised in completely closed houses. There is no direct discharge to the ground or surface water from the buildings themselves. The watering system in the houses is designed to avoid spillage.

Davis plans to dispose of the manure and the sawdust by scraping the concrete floor of the houses annually and applying the litter in an agronomically sound manner over agricultural cropland and fields as fertilizer. Dead animals will be disposed of by disposal pit unless an alternate method is approved. The total waste production from the operation is estimated to be 1525 tons per year.

The Waste Management Plan (Plan) calculated the total acreage required for disposing the litter anticipated to be produced by the facility. Using recommendation application rates, only 325 acres of land will be required for the proper disposal of the litter. However, the Plan identifies 507 acres in specific fields available for land-applying the 1525 tons of litter to be produced per year. Davis owns all the land upon which the Plan designates for the spread the litter. Therefore, Davis will have more than sufficient acreage to meet the 1525 ton per year manure demand.

6. The permit provides an adequate waste disposal system for the proposed broiler house expansion.

7. In granting the permit, DHEC relied upon departmental guidelines and examined the Waste Management Plan prepared by the Natural Resources Conservation Service. DHEC guidelines address site selection, waste management, manure storage and handling, dead animal disposal, nuisances caused by odors and vectors such as flies, and maintenance and operation of the facility. DHEC personnel inspected the proposed site upon which Davis intends to place the proposed broiler facility. Notification letters of the proposed construction were sent to all landowners within 1,000 feet of the facility proposed by Davis.

8. The facility will be sited on property owned entirely by Davis. The site is surrounded by tree and vegetative buffers that will aid in dispersion and reduction of any dust and odors transported away from the broiler houses.

9. In granting the permit DHEC imposed 21 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. Those conditions are included to give protection to adjoining landowners from nuisances that may result from the chicken operation and require immediate abatement of any nuisance created. Special conditions in the Permit are specifically included to prevent fly and odor nuisances from occurring. For example, Condition Eleven requires Mr. Davis to immediately disk-in any wet manure into the soil to prevent potential fly and odor problems. Condition Fourteen contains requiring that if waste is stockpiled on site for more than three days, it must be placed on a concrete pad or other acceptable means and covered with black plastic to prevent fly breeding. Moreover, Condition Seventeen requires Mr. Davis to abate any complaints resulting from flies and odors within a time frame designated by DHEC.

10. There are three homes within 1000 feet of the property itself, including Petitioner's. Furthermore, Davis owns an 18.6 acre tract of farmland adjacent to the present facility. This tract is situated between the facility and the Petitioner's property, and is designated on the Waste Management Plan as receiving field # 14 for the dry litter from the Davis facility. Fly, dust and odor problems will be greatest when the litter is removed and in places where it is land-applied. Therefore, Respondents DHEC and Davis stipulated to eliminating waste disposal on field #14 from the Plan. If the farmland located between the Davis facility and Petitioner's property is eliminated as a receiving field for the dry litter from the Davis facility, the Waste Management Plan would still provide more than adequate acreage for land application of the litter. Moreover, a Special Condition of the permit provides that any wastes spread on pasture or hay land must be spread more than 200 feet from a dwelling, or if spread within 200 feet, the permittee must obtain a letter of approval from the tenant or owner of the dwelling.

11. Davis is currently permitted and operates a poultry facility consisting of six houses, each containing a maximum 25,000 birds. This permit was granted in 1995. There is another poultry facility adjacent to Petitioner's property, owned by Leonard Padgett. This facility has also been in operation for several years. Petitioner has never complained to the Department about odors or flies, or other nuisance problems from either the Davis or the Padgett facilities nearby.

12. DHEC concedes that Mr. Davis' operation will occasionally emit offensive odors that will permeate the area to some degree even if it is properly managed. However, complaints to DHEC about nuisances created by the facility could result in administrative sanctions or even revocation of Mr. Davis' permit. Proper management of the facility is a primary factor in prevention and reduction of odors and flies from a chicken operation. If the facility is operated and managed according to the permit and the 21 special conditions, any nuisance from flies and odors from the facility will be minimized.

13. The permit restrictions provide adequate measures to control flies and pests; dust and noise; the maintenance and operation of the facility; and the time and manner of "land applying" the litter. Furthermore, the permit as written, with the additional restrictions eliminating field #14, adequately controls the odor or nuisance problem for the populace in the area.

14. There are no major water bodies in the immediate vicinity of the Davis facility. The proposed broiler houses are enclosed, and will prevent contact between the litter in the house and rain-water runoff. There will not be any discharge directly from the houses.

15. 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 also requires that a lower rate of application must be made on shallow soils to avoid groundwater contamination. Furthermore, where slopes are over 300 feet long, terraces or surface drains must be installed to slow the movement of waste over the land.

16. 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.

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

1. DHEC has general responsibilities over matters that present threats, whether real or potential, to the health of the people of the State with such threats including the handling and disposal of animal wastes. S.C. Code Ann., § 48-1-100(C) (Supp. 1997).

2. 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).

3. 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).

4. 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.1997).

5. It is unlawful for a person to discharge wastes into the environment of the State except in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).

6. 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).

7. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a chicken broiler facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987).

8. DHEC is principally charged with assuring the health and welfare of the public by controlling air and water pollution.

9. The 1994 DHEC guidelines, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Site Selection Criteria," set forth that "Factors that could have an effect on site selection," in part, are:

b. distance from dwellings (public and /or private) on adjacent property, transport nuisance, i.e.: odor, dust, noise, etc.;

d. distance from the lot line of the site on which the production unit is located; (1,000 ft. standard). NOTE: All property owners within 1,000 ft. are asked to sign a form stating their approval/ disapproval of the facility (Appendix B)

10. The 1994 DHEC guidelines, the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Nuisances" states under the "Source" heading that: "[o]dors from buildings with confined animals can be a significant nuisance. This can result in community complaints registered against the owner. . . . If manure accumulates, odors increase and become more offensive." Under the heading, "Procedures That Will Minimize Odor Complaints," the permitting requirements state that nuisance odors can be virtually eliminated by employing "[p]roper site selection, correct design of the waste handling and disposal system, and keen management skills. . . ." Specifically, "[a] good site selection takes into consideration the location of neighbors when planning the placement of the buildings and manure handling facilities."

11. DHEC was mandated to promulgate regulations to implement the Pollution Control Act, to govern DHEC's procedure with respect to the issuance of permits and all other matters relating to procedure. S.C. Code Ann. §48-1-30 (Rev. 1987). The 1994 Permitting Requirements 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). At the time the permit was granted in this case, no regulations detailing guidelines and procedures for agricultural facility permitting, and the waste disposal systems for those facilities, had been adopted by the General Assembly. Therefore, in the absence of duly authorized regulations, this Court may consider any and all relevant evidence in deciding whether a permit was properly or improperly granted. In other words, the determination to approve or deny a permit application must be based upon the individual merits of each application. For example, the distance of the proposed expansion and disposal fields from adjacent property lines is one of the site selection criteria to be considered along with the topography of the site, the distance to neighboring residences and

institutions, cover crops and trees in the area, prevailing wind directions, and the distance to any drinking water wells, rivers, tributaries, or other water bodies.

Although no regulations governing agricultural facility permits had been promulgated at the time of Mr. Davis' application for the permit in this case, pending regulations have now been finalized and became effective upon publication in the June, 1998 State Register. Pending regulations, like DHEC's guidelines, lack the force of law and cannot be the sole basis for approving a permitting decision. However, South Carolina Courts have found, in zoning situations, that a plan's compliance or non-compliance with a pending ordinance can be considered as a factor in reviewing that permitting decision. In Sherman v. Reavis, 273 S.C. 542, 257 S.E.2d 735 (1979), the South Carolina Supreme Court found that a zoning board could deny a zoning application that was repugnant to finalized zoning ordinances that were pending but not yet effective. By analogy, evidence showing that a proposed use of agricultural property is not repugnant to a set of pending regulations is relevant to show that the permit should have been granted.

12. Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,388-AG should not be issued. The permit was properly applied for by Davis and reviewed by DHEC under all appropriate statutes.

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

DHEC shall grant State Construction Permit #18,388-AG to Davis with the following modifications: the Waste Management Plan is amended to eliminate the use of the 18.5 acre tract of farmland, lying between the Davis facility and the Petitioner's property, identified in the NRCS Waste

Management Plan as field #14, as an area designated to receive the dry litter from the proposed facility. All litter disposal must be done offsite.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

Columbia, South Carolina

July 29, 1998