SC Administrative Law Court Decisions

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 Permit #18,426-AG to Stewart Newton for construction of a swine facility in Marlboro County, South Carolina. After notice to the parties, a hearing was conducted on January 14, 1999, 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).

The Petitioners have presented the following issues for determination:

1. Whether, in the absence of duly promulgated regulations, DHEC properly utilized "guidelines" to issue the Permit to Construct a waste treatment/collection system for Mr. Newton's swine facility;

2. Whether the Permit to Construct the waste treatment/collection system for Mr. Newtons's swine facility was properly applied for and issued by DHEC in compliance with applicable law; and

3. Whether the Permit conditions are protective of the public health and the environment in compliance with the South Carolina Pollution Control Act.

DISCUSSION

A. DHEC's Authority to Issue the Permit

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. Newton's swine facility will produce a substantial amount of waste in the form of manure and dead pigs. Therefore, Mr. Newton 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).

B. Compliance with Applicable Law

The Petitioners question whether Newton 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 swine facility. As a related issue, the Petitioners also 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 swine facility. The Confined Swine Feeding Operations Act of 1996 ("Swine Act") was enacted in response to pollution problems caused by spills from hog waste lagoons, fouled creeks, rivers and ground water and the possibility of several major hog companies moving into the state. Trula Mitchell, South Carolina Gets Tough on Swine Farmers, 5 S.C. Envtl. L.J. 201, 201 (1997). The Swine Act contains strict standards for all new swine facilities, as well as all expansions of existing swine facilities and new waste utilization areas for existing swine facilities. The Swine Act required the Department to promulgate regulations for the permitting of confined swine feeding operations.

However, at the time Newton applied for a permit to construct a swine facility and his application was reviewed by DHEC, no regulatory criteria existed for determining the conditions for granting permits for the construction of waste treatment/collection systems for swine 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. Newton's swine facility does 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 or the Swine 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). Since the DHEC agricultural guidelines in place at the time Newton's 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.

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. In addition, DHEC's site selection guide suggests 1,000 feet as the distance from the animal barn to the lot line of the property.

Petitioners argue that since Mr. Newton's swine facility will be located less than 1,000 feet from at least one of the adjoining property lines, DHEC erred in granting the permit. However, DHEC's intent is to provide the 1000 foot measurement as a guide only. The Swine Act provides for a minimum separation distance between an agricultural facility and real property owned by another person of 1000 feet for facilities with production weight between 420,000 and 840,000 pounds. S.C. Code Ann. § 47-20-20(B)(1). A "facility" is defined as the building or structure used for production. S.C. Code Ann. § 47-20-10(1). The statute also required DHEC to promulgate regulations specifying factors evaluating additional separation distances. DHEC approved regulations prior to this application. Those regulations required that "Notice of Intent to Build or Expand a Swine Facility" form from all owners of property whose boundaries are within 1000 feet of the facility's property. Reg. 61-43 Part 100.60(A)(9) and Part 100.70(G)(2).

The 1000 foot standard is designed to provide adjacent landowners notice of the proposed construction. Based upon this standard, the property owners who were located within 1000 feet of the facility (i.e. proposed structures used for production) that should have been notified were Joseph Redmond, Sarah Eskridge and Henry Lovely. Only Mr. Redmond completed the form. No others were notified. DHEC informed Mr. Newton that because he was utilizing a waste treatment system that did not require a lagoon or pond (the waste would be stored in a tank), he only needed to notify landowners within 500 feet of the facility. Mr. Newton's waste treatment system utilized alternative or innovative technology. When alternative or innovative technology is utilized at a swine facility, the set back requirements of Part 100 may be reduced by the DHEC. S.C. Code Ann. Reg. 61-43 Part 300.30(D). Part 100.80(B)(1) provides that for small facilities with a capacity of 210,000 pounds or less of normal production animal live weight, the minimum separation distance required between a lagoon and/or waste storage pond and real property owned by another person is 300 feet and the distance to the lot line of real property owned by another person and swine growing areas (barns) is 200 feet. None of the Petitioners are within this distance so as to require notice of intent to construct the swine facility.

Petitioners argue that they did not receive notice until after the permit was issued and therefore had no opportunity for commenting on the permit in any meaningful forum because DHEC did not conduct a public hearing. The Swine Act only requires DHEC to publish notice of intent to construct in a local newspaper for a swine facility which has the capacity for more than 420,000 pounds of normal production animal live weight and allow a thirty day comment period. S.C. Code Ann. § 47-20-140 (Supp. 1997). A public hearing is only conducted if there are at least twenty letters received requesting a public hearing. Under the proposed regulations, for small swine facilities, DHEC is not required to conduct a public hearing but is required to consider any letters received about the proposed facility. DHEC followed the statute, proposed regulations and guidelines in providing notice to the public.

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. 1997), as implemented through the Guidelines, which are published and made available to the public, the Swine Act, and the regulations adopted by DHEC pursuant to the requirements of the Swine Act. The DHEC staff utilized these written documents in determining whether and with what restrictions to issue the permit to Newton. Based upon the Guidelines, DHEC granted the permit but imposed extensive as well as comprehensive restrictions. Mr. Newton's 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.

C. Objections to the Permit Conditions

The Petitioners allege that Permit conditions regarding the land application of waste from Mr. Newton's swine facility cannot or will not prevent a negative environmental impact on their neighboring properties. The Petitioners specifically argue that operation of the facility and the land application of waste generated by Mr. Newton's swine facility will result in nuisances from flies and odor. 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 swine 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 5 requires Newton to immediately (within 24 hours) disk into the soil any waste that is spread on cropland to prevent potential fly and odor problems. Condition 6 contains provisions for avoiding fly and odor problems by requiring that waste be applied only when weather and soil conditions are favorable and prevailing winds are blowing away from nearby dwellings. Moreover, Condition 9 requires Newton to repair any water leaks promptly to prevent or reduce fly problems and prevent runoff from inside the houses. Condition 14 requires Newton to ensure that all vehicles transporting waste are wholly enclosed to prevent spillage. 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. Newton's swine facility, rather than the imposition of a threat to their health, circuit court may be the appropriate forum for relief.

The evidence shows that Newton's facility will be constructed in a rural area of Marlboro County which currently contains several poultry facilities. The evidence further demonstrates that DHEC responds promptly to complaints regarding fly and odor problems from agricultural facilities and can require immediate action by Newton 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 Newton's permit. The evidence shows that proper management of the facility is a primary factor in prevention and reduction of odors and flies from a swine operation. Mr. Newton 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.

The Petitioners are also fearful that the waste generated from the facility will seep into the surface water and groundwater contaminating the wells from which they obtain their water supply. Mr. Newton's facility is located in an agricultural area largely devoted to farming and wildlife. There is no evidence of danger of water contamination from the operation of the proposed swine facility. The facility will not utilize a lagoon or ponds to store the water but will use a holding tank and a solid separator. From this tank, the waste in liquid form will be applied to fields as fertilizer for crops. The permit and statutory requirements prohibit the discharge of waste within 100 feet of waterways, streams, lakes, wells, springs or ponds. See Permit Conditions 8 and 26. The waste management plan contains maps showing the appropriate buffer areas to protect the creeks and ponds in the area. In the evidence of this case, no persuasive testimony demonstrates a health danger to the residents of the area due to the construction and operation of a waste treatment system and utilization of waste from the proposed facility. This tribunal is satisfied that the proposed facility will not be harmful to the environment or the neighbors.

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:

On January 29, 1998, Stewart Newton filed with DHEC an application for a permit to construct a Waste Treatment/Collection System and a Waste Management Plan for a swine facility.

The proposed swine facility will be located in a rural area of Marlboro County.

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

Mr. Newton's property consists of 61 acres, 40 of which are available for waste application.

Mr. Newton's site was inspected on January 9, 1998, and preliminary site approval was granted on January 13, 1998. Newton was also given authority to proceed with the planning and design of the no-discharge waste treatment system.

The Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) prepared a waste management plan for Mr. Newton's facility which met the guidelines established by DHEC.

The NRCS Waste Management Plan (Plan) contains information regarding the procedures for the growing of swine and the disposal of swine waste and dead swine from the facility. Maps showing the location of the area where the facility will be constructed as well as the land for application of the waste are included. These maps also delineate any wells, streams, wetlands, or bodies of water.

The Plan also specifies the number and type of animals, the amount of waste that will be generated, the crops which are appropriate for the application of the waste, the rate of application, and required buffer zones, soil types, and erosion control methods.

The Plan also describes in detail the storage tank system and the solid separator as well as the system required inside the houses.

The Plan was incorporated into the permit application.

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. 1997), the informal Guidelines and the Department approved regulations which had been forwarded to the General Assembly for approval.

The property owner closest to the proposed facility is Joseph M. Redmond.

Mr. Redmond completed the "Public Notice of Intent to Construct" form on February 2, 1997. His signature on the form simply acknowledges he was aware of the proposed construction.

No other property owners within 1,000 feet of the property line of Stewart Newton were notified of the proposed construction during the application process.

After the implementation of the Swine Act of 1996, DHEC adjusted the distance the distance in the notice requirement. In this case DHEC required only 500 feet between the facility and the property of another to provide notice of intent to construct.

Petitioners, who own land or reside in the vicinity of the proposed site, filed objections to the proposed construction permit with DHEC after receiving notice in the newspaper that DHEC had issued the permit.

Mr. Newton plans to construct six houses to accommodate approximately 880 nursery pigs in each building and a storage tank.

The facility will manage waste from a maximum of 5,280 nursery pigs with an average weight of 35 pounds each for the total live weight of 184,800 lbs. The amount of waste estimated to be produced from this facility is approximately 703,296 gallons per year.

The waste will be collected beneath slotted floors and pumped through a screen where the solids will be separated from the liquid wastes.

The liquid portion will be stored in an above ground glass-lined metal tank. The liquid and solid wastes will be treated by land application on tracts indicated in the Waste Management Plan. There is no waste storage pond or lagoon to be utilized in connection with the operation of this facility.

This storage tank and the method to collect the waste is considered by DHEC to be an alternate system.

In accordance with the Waste Management Plan, swine waste will not be placed directly in or allowed to come into contact with groundwater.

In conjunction with a DHEC field officer and SCRS officer, Newton determined placement of the houses and storage tank. The building and tanks were located 500 feet inside Newton's property line. The storage tank for the liquid waste was placed so that it would be 500 feet away from any adjoining property owner.

The Petitioners' reside between over one-fourth mile to six miles from the proposed location.

Property owned by the family of Sarah Eskridge share a boundary with Mr. Newton's property. This property line is 660 feet from the proposed facility as shown on the map in the Plan.

Property owned by Henry Lovely is closer to the facility than the Petitioners. There is no evidence of whether he received notice of the proposed construction.

Property owned by the family of Ernest Haire is separated from Newton's property and the proposed facility by Haire Pond.

Wallace Elementary School is located approximately three-tenths of a mile from the proposed facility.

Most residents of the Wallace Community rely on wells drilled on their property to provide water.

Haire Pond is a 13 acre pond located at the edge of Mr. Newton's property. Haire Pond is over 1,000 feet from the proposed facility.

McMeekins Pond is one mile from Haire Pond.

Many of the Petitioners have observed an increase in flies and large green flies in the Wallace Community. This increase in flies has fueled Petitioners' concerns about possible problems if the facility is constructed.

All express concern about the foul odors that currently permeate the air from the operation of other agricultural (poultry) facilities. This odor is most prevalent during the warm and hot summer months.

On May 21, 1998, following review of the application and waste management plan, DHEC issued State Construction Permit #18,426-AG to Mr. Newton in accordance with the waste management plan prepared by NRCS, subject to thirty-three Special Conditions imposed by DHEC and incorporated into the proposed permit.

Land application of the waste would not affect the property any more than commercial fertilizers used by farmers on their crops.

The thirty-three 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.

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

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

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

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

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

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

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

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

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).

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).

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).

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).

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).

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).

In addition, the Confined Swine Feeding Operations Act imposes upon DHEC additional regulatory limitations on swine facilities. S.C. Code Ann. §47-20-10 et seq. (Supp. 1997).

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).

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

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).

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).

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).

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).

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).

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).

Section 47-20-140 (Supp. 1997) provides for public notice relating to swine facilities as follows:

(A) For an animal feeding operation which has the capacity of more than 420,000 pounds of normal production animal live weight at any one time and is seeking to construct or expand an established animal feeding operation, the department shall publish a notice of intent to construct or to expand an established animal feeding operation governed by this chapter in a local newspaper of general circulation, notify persons residing on adjoining property, and notify the relevant county commission and water supply district at the expense of the animal feeding operation applicant. Proof of notification of neighboring land owners and residents must be supplied by the applicant. This notice shall contain instructions for public review and comment to the department on the proposed construction and operation of the facility. The notice shall allow for a minimum thirty-day comment period.

(B) The department shall conduct a public hearing and shall provide notice of the public hearing in accordance with the notice requirements provided for in subsection (A) in any case in which the department receives at least twenty letters requesting a public hearing.

Under this section, no public notice or hearing is required unless the capacity of the facility is more than 420,000 pounds of normal animal production. Newton's facility will only have 184,800 pounds of normal animal production. No public hearing was required for this facility.

Section 47-20-20 provides that all siting must be measured from property lines. S.C. Code Ann. § 47-20-20(A) (Supp. 1997).

The guidelines provide in determining site suitability all property owners within 1,000 feet from the lot line of the side on which the production unit is located are asked to sign a form stating their approval or disapproval of the facility. Guidelines, "Site Selection Criteria," (E)(1)(d). See S.C. Code Ann. § 47-20-20(B)(1) (Supp. 1997).

S.C. Code Ann. Reg. 61-43 Part 300.30D provides when "alternative or innovative technology is utilized at a swine facility..., the setback given in Part 100 may be reduced by the Department as appropriate.

For a small swine facility with a capacity of 210,000 pounds or less of normal production animal live weight, the distance to lot line of real property owned by another person and swine growing areas (pens or barns not including range areas) is 200 feet. S.C. Code Ann. Reg. 61-43 Part 100.80(B)(1).

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).

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).

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

DHEC placed thirty-three Special Conditions in Newton'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. If Petitioners are harmed by the operation of the facility in the future, adequate remedies are available in the courts of this State.

Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,426-AG should not be issued. The permit was properly applied for by Mr. Newton and properly reviewed by DHEC under all appropriate statutes and guidelines.

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 # 18,426-AG to Stewart Newton for construction of a waste treatment/collection system for a swine facility.

AND IT IS SO ORDERED.

________________________________

ALISON RENEE LEE

Administrative Law Judge

March 4, 1999

Columbia, South Carolina.

1. Since the provisional granting of the permit in this matter, DHEC promulgated Regulation 61-43, Standards for Permitting of Agricultural Animal Facilities, effective June 26, 1998. These regulations establish criteria, procedures, and standards for the issuance of permits for swine facilities. Mr. Newton's facility, though not governed by these regulations, substantially complies with the requirements of these regulations.