SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court for the State of South Carolina (Court) based on a request for a contested case hearing filed by the Petitioners Lewis R. Webb and Ken Wilkerson. On October 7, 2004, the Department issued Bureau of Water Animal Feeding Operation Permit No. 18,874-AG to Buffalo Creek Farm a.k.a. Bobby Jackson (Mr. Jackson or Buffalo Creek) for the construction and operation of a no-discharge agricultural manure and animal by-products treatment and storage system/poultry facility in Orangeburg County, South Carolina pursuant to 24A S.C. Code Ann. Regs. 61-43 (Supp. 2002). The permit, based upon an application submitted by Kellee M. Melton of the United States Department of Agriculture’s Natural Resources Conservation Service (NRCS), requires management and disposal of manure consistent with the Waste Management Plan (WMP), the Odor and Vector Abatement Action Plan and a contract with Amick Broilers, Inc. Petitioners Lewis R. Webb and Ken Wilkerson are adjacent landowners. After notice to all parties, this matter was heard by the Court on August 30 - 31, 2005. Based on all the evidence before me, I conclude that the permit was properly issued.

FINDINGS OF FACT

Based on the testimony and the exhibits admitted into evidence at the hearing, this Court makes the following Findings of Fact.

1.                  The Department has jurisdiction to issue permits for Agricultural facilities and must follow 24A S.C. Code Ann. Regs. 61-43.200 (Supp. 2002).

2.                  The proposed broiler operation is located on Highway 3 in Springfield, Orangeburg County, South Carolina. (Tr.p.17, lines 6-20).

3.                  Mr. and Mrs. Jackson filed an application for an agricultural permit to conduct a poultry business. The Permit is for the construction and operation of a no-discharge agricultural manure and animal by-products treatment and storage system. The facility will consist of four broiler houses which accommodate 22,100 broilers per house with an estimated six flocks per year. The facility will produce 530,400 birds per year (4 x 22,100 x 6). The average weight of 3.8 pounds per bird produces an average live weight at any one time of 335,920 pounds (4 x 22,100 x 3.8). The waste produced in one year will be approximately 539 tons. The broilers are to be housed and raised on floors covered with wood shavings. (DHEC Exhibit 22).

4.                  The Buffalo Creek poultry facility is to be a no-discharge facility. Waste from the Buffalo Creek poultry facility is to be disposed of in accordance with the Waste Management Plan developed by Kellee Melton, of USDA-NRCS, and in accordance with the Odor and Vector Abatement Action Plan by Amick Broilers, Inc. (DHEC Exhibit 1; DHEC Exhibit 26). Manure removed from the houses is either spread on the approved fields listed in the grower WMP or sold to a manure broker. (DHEC Exhibit 26) The majority of the litter would go to Carl Redcay. (Tr.p.88 line 24 - p.89, line 9). Some manure will be disposed of at the Jackson Site. (DHEC Exhibit 1, p.74).

5.                  Joy Shealy, Permit Review Engineer for DHEC, reviewed the Buffalo Creek application. (Tr.p.124, lines 2-12; p.129, lines 14-18). Ms. Shealy testified that the application and materials submitted by Buffalo Creek met and exceeded the requirements of Regulation 61-43. (Tr.p.192, lines 17-23). She also testified that she had evaluated all mandatory requirements in Regulation 61-43. (Tr.p.193, lines 7-10).

Mr. Wilkerson

6.                  Mr. Wilkerson testified that he owns property adjacent to Mr. Jackson’s property, although he lives in Prosperity, South Carolina, and has never lived on the property adjacent to Mr. Jackson. Mr. Wilkerson owns a house on the adjacent property. Although the house has not been a residence for about seven years, he has been remodeling it and would like to move in after he completes the work. (Tr.p.16, line 24 – p.19, line 16; p.37, line 2 – p.39, line 8).

7.                  About two and half years before the hearing, Mr. Wilkerson was diagnosed with cancer of the kidney, and on May 5, 2005, he had a kidney transplant. (Tr.p.18, line 13 – p.19, line 5). After the transplant, he learned that immunosuppressant drugs would compromise his immune system and that he should be cautious about his surroundings. (Tr.p.23, line 21 – p.25, line 11).

8.                  On February 3, 2004, Mr. Wilkerson, through his lawyer Mr. Scott Justice, wrote DHEC that he owned property adjacent to the Jackson farm and objected to “the application on the basis of health and environmental concerns.” At the time this letter was written, Mr. Wilkerson had known about his kidney condition for approximately one year. (Tr.p.18, line 13 – p.19, line 5; p.35, lines 15-16). The letter invited DHEC to contact Mr. Justice if any additional information was needed. DHEC Exhibit 4.

9.                  Ms. Shealy testified that on February 19, 2004, the Department responded to Mr. Wilkerson’s letter, acknowledging receipt of the letter and inviting him to “provide an explanation of the specific issues which Mr. Wilkerson would like the Department to consider in the permit decision.” DHEC Exhibit 5. The February 19 letter states that the Department would need additional information to evaluate the impact the proposed farm might have on the surrounding residents’ medical conditions. DHEC specifically asked for a “statement from the individual’s personal physician explaining his/her specific diagnosis and how this farm will affect his/her condition.” DHEC Exhibit 5. Ms. Shealy testified that she did not receive any information in response to this request. (Tr.p.190, line 8 – p.191, line 11; p.244, line 19 – p.245, line 2). Ms. Shealy testified that if she had received health information from Mr. Wilkerson, she would have forwarded it to a DHEC physician, and if the physician had said there was the slightest risk to his health, she would have denied the permit. (Tr.p.245, line 8 – p.246, line 21).

10.              Despite the lapse of 19 months between the time of DHEC’s request for additional information and the hearing in this case, and despite formal discovery requests from DHEC, neither Mr. Wilkerson nor Mr. Justice informed the Department of Mr. Wilkerson’s medical condition.[1] At the hearing, Mr. Wilkerson provided no evidence about the compounds found in poultry house emissions or whether those emissions contain bacteria or viruses that would compromise his immune system. Further, although he testified that his doctors told him not to keep a bird as a pet, he provided no evidence of how far bacteria and viruses would travel in the air if they were released from the poultry houses or whether they would reach his house. (Tr.p.33, line 25 – p.36, line 15).

Mr. Webb

11.              Mr. Webb testified that he lives on property adjacent to Mr. Jackson’s property, with his house situated to the northeast. Mr. Webb raises Christmas trees and hay, and plants sample crops of corn, cotton, and pumpkins. He also hosts field trips from area schools to educate children about agriculture. (Tr.p.40, line 2 – p.42, line 15).

12.              Mr. Webb has been raising Christmas trees on his property since 1990 and has been selling trees since 1997. He has about 25,000 trees on his farm. The farm is open for tree cutting from the Friday after Thanksgiving until around December 22. The customers either walk around the farm or ride in a wagon until they find a tree they like. They may cut the tree themselves or have Mr. Webb cut it for them. (Tr.p.43, line 14 – p.46, line 24). Mr. Webb works as a full-time heavy equipment operator for the remainder of the year. (Tr.p.60, line 17 – p.61, line 17; p.64, lines 12-16). Mr. Webb testified that nobody from DHEC contacted him about the effect on his business. (Tr.p.50, lines 13-25).

13.              Mr. Webb testified that the general wind direction on his property was from the southwest to the northeast. (Tr.p.49, line 23 – p.50, line 3). Mr. Webb testified that he was concerned about the impact odor would have on his farm. (Tr.p.51, lines 12-16). However, he did not conduct any air or water quality studies on his or Mr. Jackson’s property. (Tr.p.55, lines 2-15). Further, although he said that chicken manure smells bad, he could not testify how the chicken houses would impact the air quality or water bodies in the area, and he did not testify about how far odor from the chicken houses would travel. (Tr.p.58, line 18 – p.59, line 4).

Setbacks

14.              Ms. Shealy testified that the standards in Regulation 61-43, Part 200 are minimum standards and that the Department must have evidence to support increasing those setbacks for a particular permit. (Tr.p.129, line 19 – p.130, line 6; p.132, line 2 – p.133, line 9). The Jackson farm met the setback requirements in Regulation 61-43, Part 200, Section 80, and there were no residences within 1,000 feet of the poultry houses. (Tr.p.186, lines 12-20). Reg.61-43 does not have a setback requirement for retail businesses. (Tr.p.188, lines 8-12). She stated that she reviewed the 12 factors under Section 70(F) and found that none of the factors required an increase in the setbacks. (Tr.p.183, lines 13-25). Mr. Jackson testified that the initial location for the houses was moved closer to Mr. Wilkerson’s property to account for some wetlands, although the new location maintained a 250 foot setback from the Wilkerson property line. (Tr.p.81, line 21 – p.82, line 23). Mr. Wilkerson admitted that the broiler houses were 200 feet from the property line he shares with Mr. Jackson. (Tr.p.21, lines 17-23).

Odor Abatement

15.              Ms. Shealy testified that DHEC would probably not increase a setback to address odor abatement or air quality. She testified that a more effective way of addressing those issues is to require vegetative buffers, which filter out particulate matter and reduce odor. (Tr.p.133, lines 10-19; p.162, line 15 – p.163, line 11). DHEC gives greater weight to distances and vegetative buffers rather than topography. (Tr.p.162, lines 4-14). She referred to aerial photographs to determine if there was a vegetative buffer between the Webb’s residence and business and the Jackson farm. (Tr.p.163, lines 12-23). Although Ms. Shealy said that the photos she used could have been as much as five years old, Mr. Jackson testified that there are trees surrounding the area where his poultry houses will be located, with 20-30 acres of trees that he left in place between his property and Mr. Webb’s farm. He said that this buffer area includes voluntary long-leaf pines. (Tr.p.77, line 16 – p.79, line 20; p.94, line 20 – p.96, line 22; p.196, line 12 – p.197, line 14). There is no requirement in Regulation 61-43, Part 200, Section 80 that trees be set back 100 feet from barns. (Tr.p.186, line 21 – p.187, line 2).

16.              Mr. Jackson testified that Mr. Carl Redcay will receive the majority of his poultry house litter, and that Mr. Redcay’s property is roughly one mile north of his property. (Tr.p.88, line 24 – p.89, line 21; p.111, lines 2-7). He also testified that although some litter smells when applied, it doesn’t have an odor when it’s dry and immediately disked under. (Tr.p.88, lines 6-23). He testified that both Mr. Webb and Mr. Wilkerson apply chicken litter on their land. (Tr.87, line 12 – p.88, line 5).

17.              Ms. Shealy testified that Regulation 61-43, Part 200, Section 150 requires an odor abatement plan, and that Mr. Jackson’s application included an odor abatement plan in Section 7.3 of the Waste Management Plan (WMP) and DHEC’s Exhibit 26, the Amick Odor Abatement Plan. (Tr.p.184, lines 1-20). Although the Amick Odor Abatement Plan did not specifically mention the Jackson Farm and could be used for other Amick farms, it had “specific information about what treatments they can use on this farm to prevent odors.” (Tr.p.168, line 21 – p.169, line 19). She also testified that the odor control measures in WMP Section 7.3 would apply to Jackson’s farm, even though they could also apply to other Amick farms. (Tr.177, line 3 – p.180, line 21).

18.              Mr. Jackson testified that he attended a two-day course on animal manure management sponsored by the Clemson Extension Service and received a certification. (Tr.p.82, line 24 – p.83, line 25). Although he could not recall the calibration methods learned in the training, he testified that he would consult the WMP and the manual for his particular manure spreader. (Tr.p.109, line 16 – p.110, line 25). He was not familiar with the details of Amick Farms’ Odor Abatement Plan and could not testify as to what odor abatement practices he planned to use because he had not gone through training on those issues. (Tr.p.111, line 11 – p.113, line 3; p.115, lines 6-12).

19.              Ms. Shealy testified that Mr. Jackson’s odor abatement plan, as expressed in WMP Section 7.3 and the Amick Odor Abatement Plan, were the industry’s best management practices for odor control. Further, she said that Mr. Jackson’s odor abatement plan met the requirements of Regulation 61-43, Part 200, Section 150, and that the permit required Mr. Jackson to follow his odor abatement plan. (Tr.p.184, line 21 – p.186, line 11).

20.              Ms. Shealy testified that she received a letter from Mr. Webb’s lawyer stating that he objected to the issuance of the permit because he believed the poultry houses would interfere with his retail business. The letter requested that Mr. Webb’s lawyer be advised of any additional filing required at the time. (Tr.p.147, line 7 – p.148, line 22; DHEC Exhibit 3). Ms. Shealy considered Mr. Webb’s business and concluded that because of the distance between the business and Mr. Jackson’s farm and the vegetative buffer, it did not appear the farm would affect the business in any way. (Tr.p.149, line 2 – p.150, line 2). She stated that the Department did not interview Mr. Webb about his business because it did not have the staff or time to interview neighbors for each permit the Department reviews. However, she testified again that she took into consideration the location of Mr. Webb’s residence and business, the distance from those to the Jackson farm, and the presence of the vegetative buffer. (Tr.p.152, line 23 – p.154, line 21). She also testified that Department personnel visited the site to conduct the preliminary site evaluation as required by Regulation 61-43. (Tr.p.248, line 13 – p.249, line 3).

Air Quality

21.              Ms. Shealy testified that she requested DHEC’s Bureau of Air Quality (BAQ) review Mr. Jackson’s application to assess the impact on downwind receptors and whether the farm would lead to an increase in air pollution. She also asked BAQ to recommend whether the farm should have increased setbacks. (Tr.p.135, line 6 – p.137, line 6; DHEC Exhibit 20).

22.              BAQ’s response stated that ammonia, nitrous oxide, methane, and hydrogen sulfide are potential pollutants from manure at animal feeding operations. The memo noted that there are no ambient air quality standards for ammonia, nitrous oxide, and methane, and thus they are not regulated as either criteria pollutants or toxic pollutants. The memo stated that hydrogen sulfide should not be present in a poultry farm using a dry manure system as will be used at Mr. Jackson’s farm (DHEC Exhibit 21, DHEC Exhibit 1, Bates Number 3). The memo also stated that criteria pollutants such as particulate matter, sulfur dioxide, nitrogen dioxide, and carbon monoxide might emit from vehicles used to transport manure. These vehicle emissions are exempt from permitting regulations. The memo concluded that “[t]he location of the proposed Buffalo Creek Farm, Orangeburg County, is considered to be in attainment with the applicable ambient air quality standards;” thus, “an increase in air pollution is not expected from the proposed Buffalo Creek Farm.” (DHEC Exhibit 21).

23.              Ms. Shealy testified that the response from BAQ stated that the facility was in attainment of the applicable ambient air quality standards and that an increase in air pollution was not expected from the proposed farm. (Tr.p.141, lines 1-12). The response from BAQ did not mention downwind receptors. (Tr.p.145, lines 9-14). However, she said that BAQ’s response alleviated her concerns about downwind receptors because the potential sources of odor were “not at a level that would even come close to coming into conflict with some sort of state and federal standard.” (Tr.p.201, line 25 – p.202, line 14). She also said that BAQ’s response did not mention prevailing wind direction. (Tr.p.157, lines 4-12). However, as she explained later in the hearing,

We don't look at prevailing winds and the reason ... we used to look at prevailing winds years ago and the reason we don't do that anymore is because it’s not an absolute. Prevailing wind can be one direction another day and then, obviously, it has the ability to go in any direction. So we take the conservative approach and look at all of them equally as if the prevailing winds were in that direction at all times. So it's a very conservative approach so that no one gets left behind, so to speak, and that’s part of the reason why the 1000 foot setback for residences was put in is because that was felt that that was a good distance to prevent any effect from that facility affecting those residences or businesses, whatever those structures might be.

(Tr.p.187, line 19 – p.188, line 1).

24.              Mr. John Hursey, Director of the Division of Emissions, Modeling, and Support, testified on behalf of DHEC’s Bureau of Air Quality. (Tr.p.219, lines 14-22). Mr. Hursey was the supervisor of Kevin Clark, the author of the BAQ response Ms. Shealy relied upon during her review. He testified that Mr. Clark’s review was similar to the reviews that BAQ does for other poultry farms. (Tr.p.221, line 9 – p.223, line 20). Mr. Hursey said that he and Mr. Clark began the reviews by collecting information about the types of pollutants and emissions that were coming from poultry farms. They found an Environmental Protection Agency (EPA) study of poultry houses that determined the type of emissions and quantity of emissions from poultry facilities. (Tr.p.223, line 21 – p.228, line 4).

25.              They researched to determine if EPA or South Carolina had any ambient air quality standards for poultry house emissions. These air standards are health-based standards established by EPA and South Carolina to protect air quality. If they found that a facility emitted a substance with an applicable air standard, they would conduct air dispersion modeling to evaluate what level those emissions would be at any receptors. The dispersion modeling consisted of placing “receptor rings” around the facility at 50-meter spacings and finding out what the concentration of a particular substance was at each ring. If a substance did not meet an air standard at a particular ring, they concluded the substance would not have an impact at the receptor. (Tr.p.228, line 6 – p.229, line 20). He testified that neither EPA nor South Carolina has ambient air quality standards for ammonia, nitrous oxide, or methane. (Tr.p.232, lines 2-14). He stated that even if someone smells ammonia, nitrous oxide, or methane, no air standard has been violated because there are no air standards for those substances. (Tr.p.235, line 11 – p.236, line 6). Mr. Hursey defined air pollution as anything that contributes to exceeding an ambient air quality standard. (Tr.p.230, line 18 – p.231, line 31).

26.              Mr. Hursey went on to testify that if he had been provided the same information about the Jackson farm provided to Mr. Clark, he would have reached the same conclusions that Mr. Jackson’s farm will not increase air pollution. He said he would have reached the same conclusion because “there were really no criteria air pollutants or anything that we regulate emitted . . . from this facility.” (Tr.p.234, line 23 – p.235, line 10). He said the review takes into account the relevant standards under state and federal law. (Tr.p.240, lines 6-23). Finally, he testified that if there is no federal or state ambient air quality standard for a compound, DHEC does not have the authority to regulate it. (Tr.p.236, lines 7-11).

27.              Ms. Shealy testified that she considered all the requirements in Regulation 61-43 during her review and that Mr. Jackson’s proposed farm met and exceeded all of those requirements. She also testified that Mr. Jackson’s farm would not cause an increase in either water or air pollution. (Tr.p.192, line 17 – p.193, line 10). Petitioners did not present any evidence establishing that any part of Mr. Jackson’s proposal failed to meet any of the requirements in Regulation 61-43. Likewise, Petitioners did not present any evidence establishing that the Department’s review failed to meet any of the requirements in Regulation 61-43. Finally, Petitioners did not present any evidence establishing that the Jackson farm would increase water or air pollution.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the Court makes the following Conclusions of Law:

1.                  The Court has subject matter jurisdiction of this case pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 2002).

2.                  In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). “Petitioners have the burden of proof to establish by a preponderance of the evidence that DHEC committed a material error in issuing the permit.” See also Cross Keys v. SCDHEC, Docket No. 00-ALJ-07-373-CC (July 19, 2001) (Matthews, J.).

3.                  “As to their alleged anticipatory offsite impact claims, Petitioners have the burden to prove by a preponderance of the evidence that the alleged offsite impacts will inevitably occur at their properties, or property they use, and were not and could not be adequately addressed by DHEC in the permit, through the applicable regulations or through DHEC enforcement and compliance authorities.” Id. (citing Strong v. Winn-Dixie Stores, 240 S.C. 244, 125 S.E.2d 628 (1962)). The Petitioners have the burden of proving by a preponderance of the evidence that the Department’s decision to issue Mr. Jackson’s permit should be overturned.

4.                  DHEC’s general responsibilities encompass protection of human health and the environment, but its particular duties include ensuring safe means for handling and disposing of animal waste. See S.C. Code Ann. §§ 48-1-10 to - 350 (1987 and Supp. 2002) (South Carolina Pollution Control Act). Consistent with that responsibility, DHEC is charged with the duty of deciding if a permit should be issued to a party who will generate, handle, store, treat, process, or land apply animal waste. See 24A S.C. Code Ann. Regs. 61-43.200.20(A) (Supp. 2002). Since Jackson’s proposed plan for four chicken houses involved animal waste that will be generated on site, he was required to file an application for a permit.

5.                  When the Department is considering an animal facility such as Mr. Jackson’s farm, the application is specifically controlled by Part 200 of Regulation 61-43, which provides the standards for the permitting of facilities for animals other than swine.

6.                  Specifically, I find that Petitioners have raised issues that implicate Regulation 61-43, Part 200, Section 70 (regarding the Department’s substantive review of the application), Section 80 (regarding setbacks), and Section 150 (regarding odor abatement plan requirements).

Department Review under Regulation 61-43.200.70

i.7.               Petitioners argue that Department staff did not adequately review Mr. Jackson’s application under the requirements of Part 200, Section 70.

8.                  Part 200, Section 70 contains two subsections that are relevant to this appeal. Section 70(E) states that “The Department shall act on all permits to prevent, so far as reasonably possible considering relevant standards under state and federal laws, an increase in pollution of the waters and air of the State from any new or enlarged sources.” Section 70(F) requires the Department to examine twelve factors in determining whether to require setbacks greater than those imposed by Part 200, Section 80. See also Corley v. SCDHEC, No. 03-ALJ-07-0012-CC.

9.                  I find that the Department adequately reviewed Mr. Jackson’s application under Part 200, Section 70(E). Ms. Shealy testified that Mr. Jackson’s farm would not cause an increase in water pollution, and Petitioners failed to present any testimony or evidence that contradicted Ms. Shealy’s conclusions on the lack of water pollution.

10.              Regarding air pollution, Ms. Shealy asked DHEC’s Bureau of Air Quality to review Mr. Jackson’s proposal and determine whether it would cause an increase in air pollution. BAQ’s Kevin Clark determined that the proposal would not cause an increase in air pollution. BAQ’s John Hursey testified at the hearing that poultry houses do not cause an increase in air pollution because the substances that poultry houses emit either do not have ambient air quality standards or are exempt from permitting regulations. If a substance does not have an ambient air quality standard, the Department does not have the authority to regulate it. Mr. Hursey testified that if he had been presented with the same information as Mr. Clark, he would have reached the same conclusion – that Mr. Jackson’s proposal will not result in an increase in air pollution.

11.              Petitioners did not present any testimony or evidence establishing that Mr. Jackson’s proposal would cause an increase in air pollution. Petitioners did point out that BAQ’s review was more generic to dry-manure-system poultry farms than specific to the Jackson farm. Further, Petitioners noted that the BAQ review memo could have applied to other poultry operations. However, I find that this is not a material error and does not invalidate BAQ’s review. Mr. Hursey testified that BAQ’s review could have applied to other farms because all dry-manure-system poultry farms release the same emissions. (Tr.p.236, line 17 – p.237, line 22). Ultimately, he concluded that Mr. Jackson’s farm would not increase air pollution. Therefore, because Petitioners failed to present any evidence supporting the conclusion that the Jackson farm will increase water or air pollution, I find that Petitioners failed to carry their burden to show that the Department’s review under Section 70(E) was inadequate. There is no evidence in the record to contradict the Department’s conclusion that this facility will not increase water or air pollution.

12.              The Department’s review under Section 70(F) was adequate. Ms. Shealy considered all twelve factors under Section 70(F), and none of the factors required an increase in the setbacks. Petitioners questioned whether the Department properly considered “downwind receptors” in concluding that increased setbacks were not necessary. See Regulation 61-43, Part 200.70.F.11. Petitioners established that BAQ’s review memo mentioned neither downwind receptors nor prevailing wind. However, I find that these facts alone do not invalidate the Department’s review under Section 70.F.11. Both Ms. Shealy and Mr. Hursey testified that BAQ’s review addressed concerns about downwind receptors, even though the memo did not mention “downwind receptors.” (Tr.p.201, line 25 – p.202, line 14; p.228, line 6 – p.229, line 20; p.235, line 11 – p.236, line 6). Ms. Shealy testified that “prevailing wind” was no longer determined and used in evaluating the impact on downwind receptors because it was an unreliable predictor and looking in all directions surrounding a facility was a fairer approach “so that no one gets left behind.”

13.              Petitioners did not produce any evidence to contradict the Department’s conclusions concerning downwind receptors. Although Petitioners pointed out flaws in BAQ’s review memo, they failed to prove that those flaws were substantive or to connect those flaws with any evidence indicating that the setbacks for the Jackson farm should be increased because of an impact on a downwind receptor.

14.              Regarding Mr. Webb’s retail business, I find the Department adequately reviewed the requirements under Regulation 61-43. Ms. Shealy was aware Mr. Webb operated a business on his property and that she considered his business during her review. She concluded that the distance and the vegetative buffer between the proposed farm and business adequately addressed odor impacts on the business. I find that Ms. Shealy’s reliance on five-year-old aerial photographs was a material error in review and not sufficient to determine whether there was in fact a vegetative buffer in place to help with odor abatement. Mr. Jackson testified that the line of trees between his proposed farm and Mr. Webb’s business still exists. He left approximately 20-30 acres of trees in place to act as a buffer, including volunteer long-leaf pines. Accordingly, even though the Department did not conduct a sufficient review to determine whether a vegetative buffer existed, I find that Mr. Jackson’s testimony mitigates that error, and that the proposed farm does not require additional setbacks from Mr. Webb’s property.

15.              There is a lack of evidence supporting an adverse impact on Mr. Wilkerson. Mr. Wilkerson does not live on the property adjacent to Mr. Jackson’s proposed farm. In fact, he testified that he has never lived on the property. Regulation 61-43, Part 200 requires the Department to consider the setbacks from a residence. However, a residence is defined as “a permanent inhabited dwelling . . . which is routinely occupied . . . more than twelve hours per day.” Regulation 61-43, Part 50.EEE. Mr. Wilkerson’s Orangeburg house has been unoccupied for about seven years; so clearly, the house does not meet the definition of a residence under the regulation.[2] Because the setback requirements in Regulation 61-43 are related to residences as defined under the regulation, this Court does not see how a setback could be increased for something that is not a residence.

16.              In addition, to the extent that Mr. Wilkerson’s house could be viewed as a “downwind receptor” under Section 70(F)(11), both Ms. Shealy and Mr. Hursey testified that Mr. Jackson’s farm will not have an adverse impact on downwind receptors because the poultry houses will not cause an increase in air pollution. Mr. Wilkerson did not present any evidence to contradict this testimony.

17.              Further, even if he currently lived in the house, Mr. Wilkerson did not provide the Department or the Court with any information concerning how the poultry houses would affect his health, despite having been invited by the Department to present medical information for review. He did not present any evidence about the compounds found in poultry house emissions or whether any of the emissions identified by the Department would be detrimental to his health. He did not present any evidence concerning the distance between the footprint of the poultry houses and his house or how that distance and intervening trees might affect the transport of emissions to his house.

18.              The Court notes that the Department was open to reviewing any information that Mr. Wilkerson submitted. Ms. Shealy testified that she would have forwarded any medical information to a DHEC physician for evaluation and that if the physician had indicated any risk to Mr. Wilkerson, she would have denied the permit. Ms. Shealy testified that she did not actively pursue additional information from Mr. Wilkerson because the distance between Mr. Jackson’s farm and Mr. Wilkerson’s house was so great. She said that if the house had been just outside the 1,000-foot setback distance, she might have made an effort to call him and request information a second time. (Tr.p.247, lines 7-25). The Department requested information through a letter to Mr. Wilkerson’s lawyer on February 19, 2004, and by ALC order dated September 4, 2004, Mr. Wilkerson was aware that Mr. Jackson’s previous permit had been remanded to DHEC for further review.

19.              This Court finds that although Petitioners presented evidence that the BAQ review memo and Mr. Jackson’s odor abatement plan lacked detail, they failed to establish that these were material errors or that specific requirements of Regulation 61-43 were not met. Likewise, although Petitioners established that no one from DHEC contacted them about their specific objections, Petitioners failed to establish that such contact was required by law or how such contact would have changed the permitting decision. In the end, despite ample opportunity before the permitting decision and at the hearing of this case, Petitioners failed to present any evidence showing that Mr. Jackson’s farm will cause an increase in water or air pollution or have any adverse impact on a downwind receptor.

CONCLUSION

20.              The Department complied with applicable statutory and regulatory requirements in reviewing and issuing Animal Feeding Operation Permit No. 18,874-AG to Buffalo Creek Farm a/k/a Bobby Jackson. Furthermore, this Permit complies with all applicable requirements set forth in Regulation 61-43.200. Therefore, the Petitioners have failed to prove by a preponderance of the evidence that Animal Feeding Operation Permit No. 18,874-AG at issue in this proceeding does not meet the applicable requirements of Regulation 61-43.200.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Animal Feeding Operation Permit No. 18,874-AG be issued to Buffalo Creek Farm a/k/a Bobby Jackson in keeping with this Order.

AND IT IS SO ORDERED.

_____________________________

Carolyn C. Matthews

Administrative Law Judge

January 12, 2006

Columbia, South Carolina