South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
William Weston, Sr. et al vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
William Weston, Sr., S. Nelson Weston, and Henrietta Willcox

Respondent:
South Carolina Department of Health and Environmental Control and Frank Woods
 
DOCKET NUMBER:
98-ALJ-07-0229-CC

APPEARANCES:
S. Nelson Weston, Jr., Esquire for Petitioners

Samuel Finklea, III, Esquire for Respondent DHEC

Frank Woods, Jr., pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me upon a request for a contested case hearing filed by the Petitioners seeking review of the decision of the South Carolina Department of Health and Environmental Control ("DHEC") to grant Construction Permit #18,414-AG to Frank Woods, Jr. for construction of a chicken broiler facility in Richland County, South Carolina. After notice to the parties, a hearing was conducted on September 18, 1998, at the offices of the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. §§ 1-23-310 and 1-23-600(B) (Supp. 1997). Based upon the testimony and evidence presented in this case, the permit is granted. Any issues raised or presented during the proceeding of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

ISSUES PRESENTED

The Petitioners have presented the following issues for determination:

1. Whether Woods' construction of a chicken broiler facility would negatively impact the surrounding environment by creating fly and odor nuisances and spreading disease to existing wildlife on neighboring properties;

2. Whether the road providing Woods with access to his property is adequate to support the expanded use for commercial vehicles; and

3. Whether the Petitioners' right to hunt on their lands would be restricted or eliminated in order to comply with S.C. Code Ann. § 50-11-356 (Supp. 1997) which prohibits discharging a gun or weapon within 300 yards of a chicken broiler house without permission of the owner.

DISCUSSION

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. 1997). Persons are required to obtain approval of plans for waste disposal systems and to acquire a permit for the installation or operation of disposal systems. S.C. Code Ann. § 48-1-50(10) (1987). In the present case, Mr. Woods' chicken houses will produce a substantial amount of waste in the form of manure and dead chickens. Therefore, Mr. Woods is required to obtain approval from DHEC of his plans for a waste disposal system and acquire a permit for the installation and operation of the waste disposal system because this waste will be discharged into the environment. See South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1997), specifically §§ 48-1-50, 48-1-90 and 48-1-100(B) and (C). Pursuant to the Pollution Control Act, any discharge of waste must be consistent with reasonable standards of purity of air and water resources of the State. S.C. Code Ann. § 48-1-20; cf., South Carolina Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302 (Ct. App. 1987). The installation and operation of the waste disposal system are subject to the conditions set forth in the permit. S.C. Code Ann. §§ 48-1-50(5) and 48-1-90(a) (1987).

The Petitioners generally question whether Woods properly complied with all requirements of the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control," dated December 1, 1994 ("Guidelines") in applying for the Permit for his chicken broiler facility. As a related issue, the Petitioners also generally question whether DHEC reviewed and issued the permit in accordance with criteria set forth in the Guidelines. As stated above, the Pollution Control Act serves as the controlling statutory authority. However, the Pollution Control Act contains no specific standards for the construction of a waste treatment/collection system for a chicken broiler facility. At the time Woods applied for a permit to construct a chicken broiler facility and his application was reviewed by DHEC, no statutory or regulatory criteria existed for determining the conditions for granting permits for the construction of waste treatment/collection systems for chicken broiler facilities.(1) 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). Therefore, provided the construction and operation of Mr. Woods' chicken houses do not pose a threat to the environment or the health and welfare of the citizens of the State, the facility would not be precluded under the Pollution Control Act. In fact, the permit must be issued if it is not in contravention of the Pollution Control Act. S.C. Code Ann. § 48-1-100(A).

An agency decision is required to 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 Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1994). Criteria for permitting are 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 Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

DHEC, based upon its permitting and enforcement experience, considers relevant factors related to the construction and operation of proposed facilities and their impact upon the citizens and environment of the State. These factors are stated in the Guidelines, which provide a framework for the permitting process covering, 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 operation and maintenance of the facility. For site selection, DHEC considers in part: 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.

Since the DHEC agricultural guidelines in place at the time Woods' application was evaluated are not promulgated regulations, they do not have the force and effect of law, and are not legally binding. See Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983); American Bus Ass'n v. United States 627 F.2d 525, 529 (D.C. Cir. 1980). As a result, the decision to approve or deny a permit application must be based upon the individual merits of each application. This tribunal must consider all factors and evidence relevant to granting an agricultural facility permit. Moreover, DHEC's guidelines are not an exhaustive collection of permit criteria. Rather, all reasonable factors not inconsistent with the controlling principles of the applicable statutory provisions should be considered as evaluative criteria.

The DHEC Division of Water Pollution Control reviewed the application under the S.C. Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 & Supp. 1996), as implemented through the Guidelines, which are published and made available to the public. The DHEC staff utilized these written guidelines in determining whether and with what restrictions to issue the permit to Woods. Based upon the Guidelines, DHEC granted the permit but imposed extensive as well as comprehensive restrictions. Mr. Woods' application was in accordance with appropriate permitting criteria and evaluated and issued by DHEC in accordance with all relevant criteria in a reasonable manner consistent with other applications.

Petitioners' Specific Objections to the Permit

The Petitioners object to the issuance of the Permit on a number of specific grounds. The Petitioners allege that Permit conditions regarding the land application of waste from Mr. Woods' chicken facility cannot or will not prevent a negative environmental impact on their neighboring properties and existing wildlife. The Petitioners also claim that Woods lacks adequate access to the sites of operation of the chicken houses since the current access road is inadequate for commercial vehicles. The Petitioners are also concerned about potentially violating S.C. Code Ann. § 50-11-356 (Supp. 1997) by discharging a firearm within three hundred yards of a broiler house without Woods' permission.

A. Environmental Concerns - Fly and Odor Nuisances and Wildlife Diseases

The Petitioners allege that operation of the facility and the land application of waste generated by Mr. Woods' chicken facility will result in nuisances from flies and odors and disease to wildlife. However, the Petitioners have not produced any evidence to demonstrate that the operation of the facility would result in fly and odor nuisances. Additionally, the Special Conditions contained in the Permit give protection to adjoining landowners from nuisances that may result from the chicken operation. Several special conditions in the Permit are included specifically to prevent fly and odor nuisance from occurring and require immediate abatement of any nuisance created. Condition 11 requires Woods to practice good sanitation in the chicken houses by removing and immediately disking into the soil any wet manure to prevent potential fly and odor problems. Condition 14 contains provisions for avoiding fly and odor problems by requiring that waste stockpiled on site for more than three days be placed on a concrete pad or other acceptable means and covered with black plastic to prevent fly breeding. Moreover, Condition 17 requires Woods to abate any complaints resulting from flies and odors within a time frame designated by DHEC.

The evidence shows that Woods' chicken houses are located in an area where a line of trees will act as a natural buffer to block and divert winds carrying odors above and away from neighboring land and residences. The evidence further demonstrates that DHEC responds promptly to complaints regarding fly and odor problems from agricultural facilities and can require immediate action by Woods to correct any potential problems. The testimony of the DHEC witness demonstrates that complaints to DHEC about nuisances created by the facility could result in administrative sanctions or even revocation of Woods' permit. The evidence shows that proper management of the facility is a primary factor in prevention and reduction of odors and flies from a chicken operation. Mr. Woods testified that he is aware of the Permit Conditions governing operation and maintenance of his facility and intends to abide by those Conditions. The testimony of the DHEC witness demonstrates that proper operation and management of the facility are significant factors in preventing and decreasing any nuisance from flies and odors from the facility.

Mr. Woods' facility is located in a rural, agricultural area largely devoted to farming and wildlife. Toms Creek and Weston Pond, located in the vicinity, are over 600 feet from the proposed facility. There is no danger of water contamination from the operation of the facility. In the evidence of this case, no persuasive testimony demonstrates a health danger to the residents or wildlife of the area due to the construction and operation of a waste treatment system and utilization of litter from the proposed facility. Further, the nuisance concerns about odor and flies are all subject to sufficient and extensive limitations in the permit granted by DHEC. Accordingly, the creation of an unhealthy environment does not serve as a valid basis for denying the permit request. This tribunal is satisfied that the proposed facility will not be harmful to the environment or the neighbors. Since Petitioners' contentions center around the potential interference with the use and enjoyment of their property from offensive odors and flies which may emanate from Mr. Woods' chicken facility, rather than the imposition of a threat to their health, circuit court may be the appropriate forum for relief.

B. Access Road Concerns

The Petitioners additionally object to Woods' proposed use of the existing access road. The Petitioners do not dispute Woods' current permissive use of the access road. Rather, Petitioners claim that the existing access road is inadequate for future use by commercial vehicles. Several special conditions in the permit give protection to adjoining landowners from damages to the access road that may result from the chicken operation. Condition 20 of Woods' permit provides that Woods must maintain an all-weather access road to his chicken broiler facility at all times. Condition 15 requires that the body of all vehicles transporting waste shall be wholly enclosed, or shall at 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 materials or liquids. Additionally, Condition 11(a) requires Woods to take immediate steps to clean up any waste spilled during transport. Petitioners may report any violations of these permit conditions to DHEC. However, Petitioners' objections to the proposed uses of the access road seem to concern the law of easements rather than Woods' inability to comply with the permit conditions issued by DHEC. The Administrative Law Judge Division lacks jurisdiction to address the issues of whether Mr. Woods access to the property is allowed by virtue of an easement and whether the Petitioners have the right to deny commercial vehicles access to Wood's property.

C. Discharge of Firearms Concerns

The Petitioners also object to any restrictions which might be imposed on their right to hunt on their land adjoining Woods' property in order to comply with S.C. Code Ann. § 50-11-356 (Supp. 1997). Section 50-11-356 prohibits discharging a gun or weapon within 300 yards of a chicken broiler house without permission of the owner. Petitioners routinely hunt wildlife on their property and have deer stands located within approximately 200 feet of their property line. Testimony indicates that Woods proposes to construct his broiler houses approximately 300 feet from the nearest property line. However, no evidence was offered to show the precise proposed location of Woods' broiler houses in relation to the Petitioners' property lines. Woods testified that he is willing to grant permission to the Petitioners to hunt within 900 feet of the chicken broiler houses as long as the discharge of weapons does not negatively impact the chickens. This tribunal finds that Section 50-11-356 requires a 900 foot buffer between chicken broiler facilities and locations where firearms are discharged. Therefore, as an additional condition to his permit, Woods shall ensure that the chicken houses are not constructed within 300 yards (900 feet) of the Petitioners' property line(s). Failure to comply with this condition will subject Woods' permit to administrative sanctions including revocation.

FINDINGS OF FACT

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

1. On March 1, 1998, Frank Woods, Jr. filed with DHEC an application for a permit to construct a Waste Treatment/Collection System and a Waste Management Plan for a chicken facility.

2. The proposed chicken facility will consist of four broiler houses.

3. The proposed chicken facility will be located in a rural area of Richland County.

4. The general area of the proposed chicken operation is an agricultural area. Local zoning and land use requirements do not prohibit the chicken broiler facility.

5. Tom's Creek is approximately 600 feet from Wood's property. The proposed facility is more than 200 feet from and any water course or well.

6. Mr. Woods' site was inspected on December 5, 1997, and preliminary site approval was granted on December 9, 1997. Woods was also given authority to proceed with the planning and design of the waste treatment system.

7. The Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) prepared a waste management plan, dated February 18, 1998, for Mr. Woods' facility which met the guidelines established by DHEC.

8. The NRCS Waste Management Plan (Plan) was incorporated into the permit application.

9. The DHEC Bureau of Water deemed the application complete and reviewed the application and waste management plan 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.

10. Petitioners, who own land or reside in the vicinity of the proposed site, filed objections to the proposed construction permit with DHEC.

11. This proposed facility consists of four broiler houses to house 28,500 birds per house for a maximum of 114,000 birds. The chickens will be raised completely within enclosed houses on sawdust and wood shavings, producing dry litter.

12. The proposed operation will produce waste in the form of dry litter consisting of chicken manure, sawdust and wood shavings, and dead chickens.

13. The litter will be removed from the growout houses once each year. The land application of waste will be done on various tracts of land (approximately 100 acres) in Richland County owned by Mr. Woods and 60 acres owned by Mr. Robert W. Harmon. The litter will be removed from the houses and taken to the tracts indicated in the Waste Management Plan.

14. In accordance with the Waste Management Plan, litter removed from a growout house must be either immediately land-applied as fertilizer or stored on site for future land application.

15. Petitioners' property is used primarily for timber operations, farming, and hunting.

16. Petitioners routinely hunt wildlife on their property and have deer stands located within approximately 200 feet of their property line.

17. Woods proposes to construct his broiler houses approximately 300 feet from the nearest property line. No evidence indicated the precise location of Woods' broiler houses in relation to Petitioners' property lines.

18. The distance to the nearest property line containing a residence is approximately 1,800 feet.

19. On March 26, 1998, following review of the application and waste management plan and after consideration of Petitioners' objections, DHEC issued State Construction Permit #18,414-AG to Mr. Woods in accordance with the waste management plan prepared by NRCS, subject to twenty-one Special Conditions imposed by DHEC and incorporated into the proposed permit.

20. The twenty-one Special Conditions incorporated into the Permit are designed to protect the public health and environment and to ensure proper operation and maintenance of the facility. These conditions provide adequate measures to control the operation and maintenance of the facility.

21. The Permit Conditions provide adequate measures for maintaining records required to be kept by the operation for monitoring by DHEC.

22. The Permit Conditions provide measures to control, minimize and to abate potential nuisances from flies, pests, and odor.

23. DHEC routinely inspects agricultural facilities to ensure compliance with permits and waste management plans.

24. DHEC has the authority to inspect agricultural facilities in response to complaints and to require immediate abatement of nuisance conditions.

25. DHEC has the authority to enforce compliance with Mr. Woods' permit and waste management plan, including the imposition of administrative sanctions and modification or revocation of the permit.

26. The permit to operate the facility will include the same terms and conditions as the Construction Permit.

CONCLUSIONS OF LAW

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

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

2. The standard of proof in weighing the evidence and making a decision on the merits of a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dep't. of Health and Envtl. 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 (Supp. 1997).

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) (Supp. 1997).

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) (Supp. 1997).

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. 1997).

7. The issuance of construction permits for agricultural facilities is governed by the South Carolina Pollution Control Act, codified at S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1997). Under the Pollution Control Act, 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 (Supp. 1997).

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) (Supp. 1997).

9. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals 9nd manure resulting from a chicken facility. S.C. Code Ann. §§ 48-1-10(4), (5), and (6) (Supp. 1997).

10. DHEC is principally charged with assuring the health and welfare of the public by controlling air and water pollution. 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 (Supp. 1997).

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, 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).

12. 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. Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991); City of Rock Hill v. S. C. Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990); Carolina Water Serv., Inc. v. South Carolina Pub. Serv. Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).

13. 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).

14. DHEC's powers are construed liberally when the powers concern the protection of the health and welfare of the public. City of Rock Hill v. S. C. Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990); City of Columbia v. Bd. of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

15. An agency decision must be reached utilizing reasoned judgment and be based upon adequate determining principles and a rational basis. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

16. 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, Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Captain's Quarters Motor Inn, Inc. v. S. C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

17. DHEC's agricultural guidelines for the issuance of agricultural facility permits are not promulgated regulations and, therefore, do not have the force and effect of law. See Home Health Serv. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994).

18. DHEC's consideration of the evaluative criteria contained in its guidelines for 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 Ass'n v. United States, 627 F.2d 525, at 529 (D.C. Cir. 1980).

19. The informal guidelines utilized by DHEC are reasonable and were fairly applied in the application review process for Mr. Woods' permit application.

20. DHEC placed twenty-one Special Conditions in Woods's Permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent discharges into the environment. Some of the other conditions are as follows: (1) 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; (2) manure should be land-applied only when weather and soil conditions are favorable and when prevailing winds are blowing from nearby opposite dwellings; (3) good sanitation should be practiced and leaking waters should be repaired to reduce fly problems; (4) wastes wet enough to cause fly or other problems will be removed from the houses; (5) dead chickens must be disposed of by pit burial unless otherwise specified; and (6) cleanup of any spillage occurring during transport of the waste. If Petitioners are harmed by the operation of the facility in the future, adequate remedies are available in the courts of this State.

21. Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,414-AG should not be issued. The permit was properly applied for by Mr. Woods and properly reviewed by DHEC under all appropriate statutes and guidelines.

22. S.C. Code Ann. § 50-11-356 (Supp. 1997) prohibits the discharge of a gun or a weapon within 300 yards of a chicken broiler house without permission of the owner.

23. To ensure compliance with Section 50-11-356, Woods must construct the broiler houses more than 300 yards (900 feet) from Petitioners' property line(s). This requirement constitutes an additional condition to Woods' permit. Failure to comply with this condition will subject the permit to administrative sanctions including revocation.

ORDER

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

ORDERED that the South Carolina Department of Health and Environmental Control shall issue State Construction Permit # 18,414-AG to Frank Woods, Jr. for construction of a waste treatment/collection system for a chicken broiler facility.

IT IS FURTHER ORDERED that Woods must construct the broiler houses more than 300 yards (900 feet) from Petitioners' property line(s) to ensure compliance with S.C. Code Ann. § 50-11-356 (Supp. 1997). This requirement constitutes an additional condition to Woods' permit. Failure to comply with this condition will subject the permit to administrative sanctions including revocation.

AND IT IS SO ORDERED.





________________________________

ALISON RENEE LEE

Administrative Law Judge

February 4, 1999

Columbia, South Carolina.

1. Since the provisional granting of the permit in this matter, DHEC has promulgated Regulation 61-43, Standards for Permitting of Agricultural Animal Facilities, effective June 26, 1998. Mr. Woods' facility, though not governed by these regulations, complies with the requirements of these regulations.


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