SC Administrative Law Court Decisions

3) Chaplin failed to provide a complete application package as required by S.C. Code Regs. 61-43-100.70(A) such that on June 28, 2002 (the date new more stringent regulations became effective) the application became subject to new regulations and thus the completed application failed to meet the demands of the new regulations;

4) DHEC’s technical review of Chaplin’s application as required by S.C. Code Regs. 61-43-100.70(B) was incomplete and inadequate;

5) the public notice of the proposed Chaplin facility as required by S.C. Code Regs. 61-43-100.70(G) and as provided in The Messenger on January 23, 2002 contained false information of a material nature, the falsity of which was known by DHEC before publication; and

6) Chaplin’s facility was erroneously permitted under S.C. Code Regs. 61-43-100.20(UU) as a “small swine facility” when in fact and in law it must be reviewed as a “large swine facility” under the requirements of S.C. Code Regs. 61-43-100.20(Y), which requirements it fails to meet.

Each position is addressed in this order.

III. Analysis

A. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. Description of Facility and Operation

Chaplin seeks a permit to establish a swine feeding operation in Darlington County to accommodate the raising of hogs in five buildings. DHEC granted the permit on January 23, 2002, and on the same date published in The Messenger, a newspaper of general circulation in Hartsville, S.C., a notice which states in pertinent part the following:

Public Notice No. 02–009-A

Date: January 23, 2002

NOTICE OF ISSUANCE OF AN AGRICULTURAL PERMIT

Permit Number: 18,675-AG

Issue Date: January 23, 2002

Effective Date: February 12, 2002

The Department has issued an agricultural permit to the applicant named below to build a new swine facility and land apply manure and/or compost to agricultural lands as fertilizer. PERMITEE: CHAPLIN SWINE FACILITY, ND 0082171 (DARLINGTON COUNTY), 839 BETHLEHEM ROAD, HARTSVILLE, S.C. 29550. The facility is located 1 mi. N of inters of Dovesville Hwy. and Leavensworth Rd., Dovesville Community, S.C. The facility will have 4400 animals with a normal production live weight at any one time of 418,000 pounds and land apply 3,694,000 gallons per year of liquid swine waste on 321 acres at 7 agricultural sites. Groundwater will be monitored at three monitoring wells.

The Permit will be effective on the effective date given above provided that no appeal for an adjudicatory hearing is made. If an appeal is filed, the entire permit will be stayed pending final Department action.

The notice explained the procedure for challenging the decision, provided the address for appealing the decision to the Clerk of DHEC, provided the time period for filing an appeal, and provided the address of the ALJD and of the Legal Office of DHEC for those wishing additional information. At the time of the notice, DHEC was aware that Chaplin did not have permission to use approximately 250 of the 321 acres he claimed to have the use of for waste utilization purposes. However, no correction of the notice was made. The decision to issue the permit was challenged giving rise to the instant contested case.

While the twelve counties in the Pee Dee area collectively have approximately 200 swine facilities, the Chaplin facility will be the only permitted swine feeding operation in Darlington County. Further, the facilities in other counties are “miles away” from Chaplin’s proposed facility.

In Chaplin’s proposed facility, the normal cycle for the raising of hogs will be a twenty-week period. The typical entering swine will weigh 50 pounds but will exit weighing 240 pounds. Thus, the production of added weight while in the facility will be 190 pounds per swine. Since the weight produced at the beginning of the swine’s stay in the facility is 0 and the weight produced by the end of the stay is 190, the average production of weight added over the course of the twenty-week stay in the facility is 95 pounds for each animal. Further, the maximum number of animals at the facility will be 4,400 animals. Thus, when multiplied by the 4,400 maximum number of animals at the facility, the “normal production animal live weight” produced by the facility is 418,000 pounds.

The facility will handle the swine waste by flushing the material into a four-acre storage pond. The waste will remain in the pond for significant periods of time but at periodic intervals will be removed and land applied as fertilizer to the farm land of consenting individuals. As a means of disposal of the swine waste, Chaplin plans to use equipment to agitate the liquid in the storage pond and then pump that liquid with a stationary electric pump to a traveling gun irrigation system where the waste will be spread on cotton and coastal Bermuda fields.

Since the hog waste will be held for a period of time in a storage pond, Chaplin’s plan seeks to prevent leakage from the pond to either the surrounding ground or to the underlying water table. In that regard, while not statutorily required, in deciding to grant the permit, DHEC imposed in Condition 19 the duty of installing groundwater monitoring wells. In addition, Chaplin intends to use a clay base foundation on the bottom of the pond but will not use a commercial liner.

In examining the bottom of the pond, the land covered will consist in part of Lynchburg soil and Coxville soil. Lynchburg soil is poorly to somewhat poorly drained and Coxville soils are somewhat poorly to very poorly drained and have clayey subsoils. Coxville soils typically have a water table within 1.5 feet of the surface.

Further, the bottom of the pond will cover a terrain with only a slight variation in elevation. In fact, the lowest point of the pond bottom will have an elevation of 47.7 feet with the highest point of the pond bottom being at an elevation of approximately 49 feet. Being aware of the need to have a separation of at least two feet between the lowest point of the storage pond and the highest point of the water table beneath the storage pond, Chaplin and others investigated the location of the water table in the area. The investigations created a significant disagreement.

The expert for the Petitioners, Richard Scharf, made three borings in the lowest point of the pond and concluded the water table was at depths of 11 inches, 14 inches, and 8 inches below the surface. Chaplin’s expert, Raymond Knox, made borings at a different location of the proposed pond and concluded that the water table was at least 72 inches below the surface. Finally, officials from the Natural Resources Conservation Service made two more borings and concluded that the water table in one boring was 35 inches below the surface but at an elevation 45.19 feet, while the second boring found the water table was 39 inches below the surface but at an elevation 45.74 feet. As more fully discussed below in the Conclusions of Law, I find that the water table at the lowest point of the pond bottom is less than two feet below the surface.

2. Application Filed and DHEC Review

Chaplin did not file a complete application with DHEC. Rather, the application was lacking in at least two particulars. First, as a means of disposing of the swine waste, Chaplin seeks to employ a spray irrigation system as part of his Waste Management Plan. However, the application filed by Chaplin with DHEC did not contain the plans and specifications of the irrigation system with supporting details and design calculations. Indeed, not only were the irrigation plans and specifications not provided to DHEC prior to the date of issuance of the permit of January 23, 2002, they were also not provided to DHEC prior to the June 28, 2002 repeal of the “old” regulations and the enactment of the “new” regulations.

In fact, significant information concerning an irrigation plan was only provided to Chaplin by Mr. Hobson on or about June 10, 2002, a date well after the permit issuance date of January 23, 2002. However, even the Hobson information, as late as the date of the hearing in this matter, was an incomplete irrigation plan and was not reviewed by DHEC.

Second, Chaplin’s application which resulted in the January 23, 2002 permit included a Waste Management Plan but failed to contain the required signed written statements authorizing the use of specific lands as waste utilization areas. The application identified 321 acres available for waste utilization. Of those acres, Chaplin owned approximately 70, Mrs. Doris Chaplin owned approximately 245 acres, and approximately 6 acres were owned by Mr. William Chaplin. Doris Chaplin did not sign any written statements granting permission to Chaplin to use her property. In fact, Doris Chaplin was actively in opposition to the permit being sought and had not given any consent for her property to be part of the waste utilization areas.

Before the permit was issued on January 23, 2002, DHEC learned that Doris Chaplin’s land was not properly included in the waste utilization area. However, notwithstanding that fact, DHEC granted the permit. Further, the application identified the minimum required acreage for waste utilization as being 88 acres based on nitrogen as the limiting nutrient for land used to grow cotton, Bahia, Coastal Hayland, and Rye Cover. The available acreage for waste utilization was that held by Chaplin, and he held only 70 acres.

On March 21, 2002, in an effort to address the waste utilization issue, one of the authors of the Waste Management Plan submitted to DHEC on Chaplin’s behalf “changes and additions to the Chaplin Waste Management Plan.” The changes and additions removed Doris Chaplin’s waste utilization lands and added other lands to give available waste utilization acreage of 156.1 acres. However, the waste utilization acreage actually required for operation of the facility was changed since the plan now called for the imposition of phosphorus as the nutrient limiting factor for land application rather than the old plan’s use of a nitrogen. The result of the change to phosphorus caused the required waste utilization acreage to grow to 147.1 acres. But, even that number did not remain static. In a subsequent filing with DHEC, the number of acres needed under a phosphorus limitation declined to 129.6 acres.

Since Chaplin’s application was lacking in at least two respects, DHEC failed to conduct the required technical review of the missing elements. In other words, prior to the permit issuance date of January 23, 2002, DHEC had not conducted a technical review of an irrigation plan or of the waste utilization agreements. However, contrary to the Petitioners’ assertions, DHEC did conduct a technical review of the pollution assimilative capacity of the receiving water bodies in the area of the Chaplin facility.

B. Conclusions of Law

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

1. Least Adverse Impact on the Environment

a. Analysis Suggested By Parties

Petitioners suggest that the permit must be denied since the swine waste treatment and utilization “system” employed by Chaplin does not produce the least adverse impact on the environment as required by S.C. Code Ann. § 47‑20‑90(B) (Supp. 2002). Thus, while not clearly articulated, Petitioners rely upon a three-step analysis.

First, the environmental impact of Chaplin’s system must be determined. Second, the environmental impact of other available systems must be assessed. Third, if a comparison of the environmental impacts of Chaplin’s system and any other available system shows that another system yields a lesser adverse impact on the environment, Chaplin’s application must be denied. Under this approach, Petitioners argue that other systems do in fact produce a lesser adverse impact on the environment so that Chaplin’s application must be denied.

For all practical purposes, DHEC and Chaplin agree with the form but not the result of Petitioners’ analysis. DHEC and Chaplin assert that Petitioners’ argument fails at the first step since the evidence does not show that “the facility as permitted will have any unreasonable adverse impact [on the environment].” Resp. Br. p. 15. Further, Chaplin argues that the second step of the analysis can include only those systems that have “economic feasibility.” Resp. Br. p. 15 - 16. In that regard, DHEC and Chaplin argue that the evidence shows that “for the smaller facilities, such as Chaplin’s,” the method having economic feasibility is a waste storage pond and that “the waste management system proposed by Chaplin [is] the alternative with the least adverse impact on the environment.” Id.

I am unable to agree with the parties’ methodology since the analysis suggested is inconsistent with the applicable statutes and regulations. Rather, the statutes and regulations suggest the following analysis.

b. Intent of General Assembly

A principle so elementary as to warrant only minimal citation is the rule that an adjudicating body seeks only to discover and then to apply the intent of the General Assembly. Charleston County Sch. Dist. v. State Budget & Control Bd., 313 S.C. 1, 437 S.E.2d 6 (1993) (The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature). When seeking intent, words used by the General Assembly must not be read in isolation but rather must be read within the context of the surrounding language so as to consider the words as part of an overall whole. Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992) (Language must be read as a whole and sections which are part of the same general scheme must be construed together and each given effect if such can be done by any reasonable construction). "A statute must receive such construction as will make all of its parts harmonize with each other and render them consistent with its general scope and object." Davis v. County of Greenville, 322 S.C. 73, 470 S.E.2d 94 (1996).

The intent of the General Assembly for the “least adverse impact” language found in S.C. Code Ann. § 47‑20‑90(B) (also repeated in S.C. Code Regs. §61‑43.100.70(F)) cannot be found by reading that language in isolation but instead it must be considered within the context of the entire Swine Act along with the immediately surrounding language. In that light, the broader scope of the Swine Act does not create a statutory scheme requiring all applicants to employ the “alternative with the least adverse impact on the environment.” Rather, both the Swine Act and the regulations promulgated under the Act contemplate that the lagoon or storage pond plus the land application of wastes is a common means of handling swine waste and that only in specific statutory circumstances will an “alternative” be required.

For example, the Swine Act relies upon the common practice of the use of storage ponds and the land application of wastes since the Act is replete with instructions and directives permitting such activities. See S.C. Code Ann. § 47-20-60(A) (maximum lagoon size); § 47-20-60(B) (liners required in certain lagoons); § 47-20-60(C) (need for engineer’s certificate of proper design, construction, and installation of lagoon and waste storage pond); § 47-20-60(D) (removal of all under-drains before construction of lagoon or storage pond); § 47-20-60(E) (minimum separation between storage pond and water table).

Moreover, S.C. Code Ann. §§ 47-20-40 and 47-20-60 direct DHEC to promulgate regulations for the land application of animal wastes and for the use of waste storage ponds. Consistent with the General Assembly’s direction, DHEC promulgated Part 100 of Regs. 61-43 which contains extensive identification of the typical practice of utilizing storage ponds and the land application of wastes. See 61-43.100.80 (“Facility, Lagoon, and Waste Storage Pond Siting Requirements.”); 61-43.100.90 (“General Requirements for Swine Lagoons and Swine Waste Storage Ponds.”); 61-43.100.100 (“Waste Utilization Area Requirements.”); 61-43.100.110 (“Spray Irrigation System Requirements.”). Further, the Act requires DHEC to promulgate regulations for small swine facilities that include “the land application of waste.” S.C. Code Ann. § 47-20-160 (Supp. 2002). Thus, the General Assembly plainly intended storage ponds and the land application of waste to be a common practice rather than a practice to be used only when no other alternative produced a lesser adverse impact on the environment.

However, while the use of storage ponds and the land application of waste is to be a common practice, the General Assembly did not intend that practice to be acceptable in all circumstances. Rather, the General Assembly recognized that some circumstances require a higher level of environmental protection such that an “alternative” to lagoons and storage ponds and land application would be necessary To wit, after explaining the requirements for lagoons and storage ponds (see S.C. Code Ann. §§ 47-20-60(A) through (E)), the General Assembly identified the need for an “alternative” to lagoons and storage ponds.

The department shall conduct a study of alternative technologies for the treatment of animal waste from animal feeding operations and promulgate regulations governing the use of these alternative treatment technologies. Every five years the department shall review changing technologies relating to the treatment of animal waste and promulgate appropriate regulations as needed. The department shall determine which animal feeding operations are required to use aerobic lagoons or other treatment technology.

S.C. Code Ann. § 47-20-60(F) (Supp. 2002).

Again, consistent with the General Assembly’s direction, DHEC promulgated regulations addressing alternatives to the typical lagoons and waste storage ponds and the land application of wastes. Alternatives recognized by DHEC include “1. Aerobic treatment systems or combination aerobic / anaerobic systems; 2. Artificial (constructed) wetlands use for treatment; 3. Use of steel tanks; 4. Use of solid separators; 5. Methane Gas Recovery Systems; [and] 6. Surface Water Discharge Systems.” S.C. Code Regs. 61-43.300.40(A).

Consistent with the availability of alternatives, the General Assembly statutorily recognized circumstances that would mandate the use of an “alternative” to storage ponds and the land application of wastes. One such instance is identified in S.C. Code Ann. § 47-20-90(B) (Supp. 2002) and S.C. Code Regs. §61-43-100.70(F). Specifically, both prior to and immediately following the language relative to the need for an alternative, the statute addresses the cumulative consequences on water quality from “a number of animal feeding operations in a defined area” and “the effects of additional projects.”

The department also shall act on all permits so as to prevent degradation of water quality due to the cumulative and secondary effects of permit decisions. Cumulative and secondary effects are impacts attributable to the collective effects of a number of animal feeding operations in a defined area and include the effects of additional projects similar to the requested permit in areas available for development in the vicinity. All permit decisions shall ensure that the waste treatment and utilization alternative with the least adverse impact on the environment be utilized. Cumulative and secondary effects shall include, but are not limited to, runoff from land application of animal waste and an animal feeding operation, evaporation and atmospheric deposition of elements, ground-water or aquifer contamination, buildup of elements in the soil, and other potential and actual point and nonpoint sources of pollution in the vicinity. (Emphasis added).

S.C. Code Ann. § 47-20-90(B) (Supp. 2002).

Essentially the same cumulative-consequence-on-water-quality context is also found at S.C. Code Regs. §61‑43‑100.70(F). Thus, the need for an “alternative” arises if water quality is threatened by the cumulative impacts of multiple animal feeding operations in the same defined area as the proposed permit. In that circumstance, DHEC is to ensure the use of the “alternative with the least adverse impact on the environment.”

In the instant case, the evidence does not establish “a number of animal feeding operations in a defined area” in which the proposed facility intends to operate. S.C. Code Ann. § 47‑20‑90(B) (Supp. 2002) and S.C. Code Regs. §61‑43.100.70(F). First, if the “defined area” is Darlington County, the current facility will be the only licensed facility in Darlington County. Second, if the “defined area” is extended beyond Darlington County to include the entire twelve counties in the Pee Dee area, approximately 200 swine facilities are present. However, in relation to the Chaplin facility, the other facilities are at distances of “miles and miles and miles.” Day 3, p. 128 ln. 15 - 18.

Accordingly, the evidence does not establish the presence of cumulative and secondary effects of permit decisions in a defined area and thus no statute or regulation mandates the use of an alternative to the storage pond and the land application of swine wastes. Rather, under the facts of this case, Chaplin’s use of a storage pond and the land application of waste is a use consistent with the predominate method of waste handling contemplated by the Swine Act.

2. Groundwater Distance

The Petitioners argue the proposed facility fails to ensure that the lowest point of the waste storage pond will be at least two feet above the water table as required by S.C. Code Ann. § 47‑20-60(E) (Supp. 2002) and S.C. Code Regs. §61-43.100.90(E).

The pertinent controlling language is found in S.C. Code Ann. §47-20-60(E):

Additionally, the minimum separation distance between the lowest point of the lagoon and a waste storage pond and the highest point of the water table beneath the lagoon is 2 feet, unless adequate provisions have been taken and meet the standards established in regulations promulgated by the department.

The exception to the requirement of a separation of 2 feet is presented in S.C. Code Regs. 61-43.100.90(E) as the use of “a commercial liner of at least 30 ml thickness.” Here, a clay base foundation will be used, not a commercial liner.

Accordingly, the dispositive issue is whether a separation of two feet exists between the lowest point of the storage pond and the highest point of the water table beneath the storage pond. For elevation purposes, Chaplin relied upon a fixed point on a utility pole in the immediate area with that mark designated by Chaplin and the Natural Resources Conservation Service officials as elevation “50” feet. In the preparation of the waste management plan, the elevation measurements were made relative to the designation of “50” feet as a reference point.

Based on such a reference point, the pond footprint shows a terrain having only a slight variation in elevation reaching its highest point of elevation at approximately 49 feet. The lowest point of the pond is at elevation 47.7 feet. Accordingly, given that the lowest point of the waste storage pond is at an elevation of 47.7, to meet the requirements of the statute, the water table must be at an elevation of less than 45.7 or, if an elevation measurement is not used, the water table must be more than 2 feet from the surface of the lowest point in the pond.

Considerable disagreement exists on what is the “highest point of the water table beneath the lagoon” and whether the requisite 2 feet separation is satisfied. Petitioners’ expert Richard Scharf made several borings leading him to conclude that “the seasonal high water table at [the three borings] were 11 inches, 14 inches, and 8 inches below the surface, respectively, at sites 1, 2, and 3.” Scharf p. 2, ln 7 - ln 9. On the contrary, Chaplin’s expert Raymond Knox asserts “that the seasonal high water table in the subsurface underlying the site of the proposed lagoon is at a depth of 72 inches or greater.” Knox p. 7. Finally, evidence exists that officials from the Natural Resources Conservation Service made two borings finding the seasonal high water table at 35 inches below the surface (elevation 45.19) at one boring and at 39 inches below the surface (elevation 45.74) at a second boring.

Obviously, the experts in the instant case do not agree on where the highest point of the water table is beneath the storage pond. When faced with disputed facts, the judge as the fact-finder must weigh the evidence presented and evaluate the credibility of the witnesses. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). If expert testimony is involved, the trier of fact determines the probative weight to be given to each expert's testimony. Berkeley Electric Coop. v. S.C. Pub. Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991). Indeed, the trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Soc. Servs. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Pub. Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass'nv. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

Having weighed all of the testimony and evidence related to the water table issue, for three reasons, I find the water table is less than two feet beneath the lowest point of the storage pond.

First, I find Scharf’s testimony to be persuasive. He has expertise in soil science and soil classification derived both from education and experience. He holds a bachelor’s degree in Natural Resource Conservation and a Masters degree in soil science. In addition, he has completed all of the course-work and research toward a Ph.D. in soil science. Finally, he is a registered soil classifier for South Carolina with at least 2 years of field experience in mapping and describing soils. Indeed, experts in his field routinely determine depth to the seasonal high water table in soils and the presence or absence of a water table is a key component in making soil classification decisions.

Especially significant is Scharf’s choice of location for his water table and soil analysis since the site chosen for his borings are consistent with the demands of S.C. Code Ann. §47-20-60(E) that one examine the lowest point of the pond. On the contrary, Knox and NRCS did not make borings at the lowest point of the pond. Scharf’s lowest points measurements establish depths to the water table of 11 inches, 14 inches, and 8 inches, all of which are obviously less than the required 2 feet.

In addition, Scharf’s testimony shows an investigation that persuasively rules out false indicators of the water table such as “relict features” and a “perched water table.” For example, the testimony establishes that the standard method for locating the seasonal high point of the water table finds the shallowest occurrence of redoximorphic or “redox” features having a chroma less than or equal to 2. Redoximorphic features indicate that the soil fluctuates between an oxidated condition and a reduced condition. An oxidated condition is one where oxygen is present while a reduced condition is one where oxygen is excluded such as in water saturated soil or sediment. Further, the testimony establishes that when soil is saturated with water, soil microorganisms find a replacement for oxygen. Some of the materials used in place of oxygen are iron oxide compounds. The result is the change in color of the iron oxide from a red or yellow to a colorless form producing a gray or white mottle. Since these features last a long time, they are reliable indicators of seasonal high water tables.

However, since the redoximorphic features last a long time, their presence in the soil can simply indicate a high water table existed at some point in the distant past rather than being evidence of a present water table. Such features depicting past water tables are called relict features.

Scharf opined that the evidence he found in the soil were not relict features. I find such a conclusion persuasive. Before color changes can be identified as relict features, a showing should exist that conditions at the site have changed over time. No such showing has been made here. Rather, the storage pond area does not demonstrate the presence of extensive drainage structures added over the years which could account for a reduction in the height of the water table. Likewise, no persuasive evidence exists of some past geological event at the site that could have the effect of lowering the water table. Thus, the redoximorphic features described by Scharf are not relict features.

Nor are the redoximorphic features found by Scharf due to a perched water table. His testimony establishes that a perched water table can be formed by a subsurface layer that is less permeable than the overlying layers. In such circumstances, water can accumulate on top of the less permeable layer and thus saturate the soil or sediment above that layer even though the soil below the less permeable layer remains unsaturated. Accordingly, the saturated zone above the impermeable layer can produce low chroma colors and thus give a false indication of the water table.

However, at the Chaplin site, the evidence does not support the existence of a perched water table. The borings made by Scharf and NRCS establish a demarcation from the relatively sandy surface layers to a subsurface layer higher in clay. Based on the testimony of Scharf, if a perched water table exists, one would expect the table to be in the sandy layers on top of this clayey layer. However, the evidence shows that the redox features are not found in the sandy layers but instead are within the clayey layers. In addition, since the expert testimony shows that perched water tables are the exception rather than the rule, evidence of an unsaturated material beneath the saturated material is the best evidence. Here, the borings indicate a gradient in redox features in the soil below the sandy surface layers. Such features are consistent with the typical seasonal variations in the water table but are inconsistent with the existence of a perched water table. Thus, no perched water table is established.

A second reason for finding the lack of a separation of 2 feet is found in at least one of the borings made by NRCS. For example, even though one of the two borings found the presence of the seasonal high water table at 39 inches below the surface, the elevation of the water table for that boring was 45.74 feet (48.99 minus 3.25). Accordingly, even NRCS’s boring show a water table less than 2 feet in relation to the lowest point of the pond.^[2]

Third, the expert testimony establishes that the pond is situated upon a soil type consistent with a shallow water table. Here, the borings taken by Scharf confirm the existence of Lynchburg soil. Lynchburg soil is consistent with an elevated water table since such soil is poorly to somewhat poorly drained. In addition, at least a portion of the pond is over Coxville soil. Coxville soils are somewhat poorly to very poorly drained having clayey subsoils. Coxville soils are not only slowly permeable with a typical water table at 0 to 1.5 feet from the surface but also are subject to flooding or ponding.

Accordingly, the permit cannot be granted since S.C. Code Ann. § 47‑20‑60(E) (Supp. 2002) and S.C. Code Regs. §61-43.100.90(E) require a “minimum separation distance between the lowest point of the . . . waste storage pond and the highest point of the water table beneath the lagoon [of] . . . 2 feet” and that requirement is not met in the application filed by Chaplin.^[3]

3. Applicability of New Regulations: Complete Application

The Petitioners assert the Chaplin application must be reviewed under the DHEC regulations that became effective June 28, 2002, not those that were effective on June 26, 1998. Petitioners rely upon the following reasoning:

A permit cannot be issued under the 1998 regulations until a complete application package has been received by DHEC.

Chaplin did not submit a complete application package before June 28, 2002, the date new regulations became effective.

Therefore, Chaplin’s application is governed by the new regulations.

While I agree with the Petitioners’ first two assertions, I do not conclude that the application is governed by the new regulations. Rather, as discussed below, the application is null and void after June 28, 2002, and cannot be reviewed under the 2002 regulations. Instead, Chaplin may seek to file a new application which will be governed by the regulations and statutes in existence at the time of filing the new application.

a Lack of Completed Application: Evidentiary Matter

Before identifying how the evidence establishes Petitioners’ first two assertions, a preliminary matter as to the scope of the evidence must be addressed. DHEC sought to enter a document identified as DHEC Exhibit Seven and a separate document identified as DHEC Exhibit Eight. DHEC represented to all that DHEC Exhibit Seven contained the material upon which DHEC relied to grant the Chaplin permit on January 23, 2003. Further, DHEC Exhibit Eight contained additional material amounting to amendments to the application. Finally, Chaplin sought to introduce Chaplin Exhibit One which was represented to be the final application supporting the permit granted by DHEC. During the course of the hearing the documents were admitted into evidence but, over objections, were admitted only for limited purposes and in many respects were not admitted for the truth of the matters asserted in the documents. However, objections to evidence admitted may be waived by some affirmative act done after the ruling on the admission of the evidence which amounts to an express or implied assent to the reception of the evidence or by acts or statements inconsistent with objections previously urged. 89 C.J.S. Trial § 661, at 504 (1955).

Here, throughout the hearing, parties from all sides made repeated references to the substance of the contents of DHEC Exhibit Seven, DHEC Exhibit Eight, and Chaplin Exhibit One and received unobjected to responses that plainly asked for answers relying upon the truth of the matters asserted in the documents. As just one among many instances, DHEC asked one of Petitioners’ witnesses for the dimensions of the storage pond. The witness relied upon the assertions in the DHEC Exhibit Seven and gave the unobjected to response of “Two hundred ninety feet by 310 feet by 630 by 560 by 890.”

Petitioners themselves throughout the hearing made repeated references to the documents by asking witnesses to examine the documents and give responses that relied upon the truth of the matters asserted. Indeed, even the post trial brief filed by the Petitioners’ makes numerous references to the substantive contents of DHEC Seven, DHEC Eight, and Chaplin One and asks the ALJ to rely upon the truth of the matters asserted in those documents.

Accordingly, the limitations on and the objections to DHEC Exhibit Seven, DHEC Exhibit Eight, and Chaplin Exhibit One have been waived and the documents are received for the truth of the matters asserted. Therefore, the documents are matters of evidence for consideration in the decision of this case.

b. Lack of Completed Application: Information Missing

Under the 1998 regulations, DHEC is specifically limited to issuing a swine feeding operation permit only upon receipt of a complete application package. S.C. Code Regs. 61-43-100.70(A) ((“No permit shall be issued before the Department receives a complete application package.”). An application package is complete when the “required information” is received by DHEC with DHEC having discretionary authority to determine when the required information is completed. S.C. Code Regs. 61-43-100.70(D) (“An application package for a permit is complete when the Department receives all of the required information which has been completed to its satisfaction.”) Accordingly, under these regulatory requirements, first, the required information must be filed with DHEC and, second, DHEC may then decide when the required information is deemed complete. Therefore, a failure to submit the required information precludes a review of the adequacy of the information and results in a failure to submit a complete application.

Regulations 61-43.100.60(A)(1) through (12) explains what information “must be included in the application.” Petitioners raise four separate failures of required information that prevented Chaplin from having filed a complete application. The four arguments address the need for a spray irrigation system, written consents for adequate waste utilization land, proper groundwater monitoring, and a description of waste equipment.

i. Spray Irrigation System

Regulations 61-43.100.60(A)(2) requires the application to include a Waste Management Plan that “shall at a minimum contain” information on seven listed areas. See S.C. Code Regs. 61-43.100.60(A)(2)(a) through (g). One of those seven is S.C. Code Regs. 61-43.100.60(A)(2)(f)(iv) which requires the Waste Management Plan to include “swine waste handling and application information [which] shall be included as follows:

iv. For spray irrigation systems, plans and specifications with supporting details and design calculations for the spray irrigation system.

In the instant case, Chaplin seeks to employ a spray irrigation system as part of his Waste Management Plan. The details and the design calculations of the spray irrigation system are critical parts of the plan.

For example, to assure that wastes applied to a field will not migrate from the field as run-off, a Waste Management Plan that relies upon a spray irrigation system must include a determination of the agronomic rate, the rate at which receiving soils will be able to assimilate the waste. To adequately determine that rate, the details of the spray irrigation system must be expressed. For example, as just two among others needs, the details of the irrigation system are needed to ensure that the agronomic rate of application will be met and not exceeded (Fulmer, Day 5 p. 270 ln. 7 - ln. 9) and the details of the irrigation system are needed to decide if waste will be discharged too close to ditches or streams. (Fulmer, Day 5, pp. 298-301; Cowell, Day 5, pp. 82-86).

In the instant case, the required details were not provided to DHEC prior to the date of issuance of the permit of January 23, 2002. Moreover, the required details were still not provided to DHEC prior to the June 28, 2002 repeal of the old regulations and the enactment of the new regulations.

In particular, the DHEC employee having the duty of reviewing the submitted plan explained that the application did not contain the plans and specifications of the irrigation system with supporting details and design calculations.

Q: Is it your opinion that what you have just read qualifies as plans and specifications with supporting details and design calculations?”

A: No, sir. The detailed plan is to be submitted as soon as it is available. At the early date, whenever these manure management plans are put together, the exact irrigation pump, the exact type of traveling gun system or where those portable line systems may be placed is not included.

Day 1, p. 171, ln. 12 - 21.

Officials of NRCS who were responsible for creating the Waste Management Plan also agreed that the particulars of the irrigation plan were not included in the plan.

Q: Do you . . . did you consider that to comply with the regulations? Would you read the language?

A: The owner / operator is planning to agitate the liquid in the storage pond and pump with a stationary electric pump to a traveling gun irrigation system where the waste will be spread on cotton and coastal bermuda fields.

Q: Is that plans and specifications of an irrigation system?

A: It states how it would be applied but it’s not detailed plans and specifications.

Q: That’s a plan to irrigate not an irrigation plan?

A: It doesn’t have the details and specifications, no.

Day 4, p. 217, ln. 4 - 18.

Of particular interest is the testimony of a second NRCS official who also created the Waste Management Plan.

Q: Who did the ... first of all, does DHEC Number Seven include an irrigation plan?

A: To my knowledge, there is a sentence that details he will use a stationary electric pump and traveling gun irrigation system.

Q: But is there a detailed plan with specifications of equipment and layout?

A: No.

Q: Does DHEC Number Eight include an irrigation plan?

A: No, sir. It's the same statement.

Q: Who would have been the author of the statement that they plan to use irrigation equipment in DHEC Seven and Eight?

A: Well that would have been in conjunction of our planning process, me and Mr. Cantrell, that's what we put in there.

Q: Is there an irrigation plan in Chaplin Exhibit Number One?

A: There's a plan for spray utilization.

Q: And where do you see that, sir?

A: It's under irrigation plan.

Q: And is that a fairly detailed set of documents?

A: Yes.

Q: Who authored that?

A: Mr. Hobson.

* * * *

Q: That was not included in your original submission to DHEC?

A: No.

Q: Was that included ... that was not included in your second submission to DHEC?

A: No.

Q: Was it included in any submission to DHEC?

A: No.

Day 5, p. 34 ln. 3 - p. 35 ln. 13.

Indeed, not only was the Hobson irrigation information not submitted to DHEC by the authors of the Waste Management Plan but also the documents did not even come into Chaplin’s possession until on or about June 10, 2002, well after the permit issuance date of January 23, 2002. Further, the reviewing DHEC official testified that as of the date of the hearing, the Hobson information still was an incomplete irrigation plan and that the DHEC official had not reviewed the irrigation plan.

Q: Now, you have seen, I believe, that there are detailed plans and specifications in Chaplin Number One.

A: There are ... there is information provided. And to say that that is all of the detailed information that needs to be submitted, I do not believe that it is such. But there is information there that would typically be in a form that would be included in a detailed irrigation plan.

Q: But you did not review that as a part of the review process of this permit?

A: No, sir.

Q: And you're saying that that is still an incomplete document?

A: Yes, sir.

Q: All right. And so Chaplin Number One does not contain everything that it needs to contain?

A: Not for an irrigation plan, no, sir.

Accordingly, the required details of the irrigation plan were not provided to DHEC prior to the date of issuance of the permit of January 23, 2002. In addition, the required details were still not provided to DHEC as of the June 28, 2002 repeal of the “old” regulations and the enactment of the “new” regulations. Thus, since Chaplin did not submit to DHEC the required information needed to constitute a complete application and since DHEC is prohibited from issuing a permit until a completed application has been filed, DHEC erred in issuing a permit to Chaplin on January 23, 2002.

ii. Waste Utilization Areas

In addition to an irrigation plan, an application must include information on the applicant’s “waste utilization area” for land application of the swine waste and requires the following:

iv. For waste utilization areas not owned by the permit applicant, a signed agreement between the permit applicant and the landowner acceptable to the Department detailing the liability for the land application.

S.C. Code Regs. 61-43.100.60(A)(2)(g).

Chaplin’s original waste management plan filed with DHEC identified 321 acres for waste utilization with 70 of those acres owned by Chaplin , approximately 245 acres owned by Mrs. Doris Chaplin, and approximately 6 acres owned by Mr. William Chaplin. The required signed agreement from Doris Chaplin was not included in the application. Indeed, Doris Chaplin not only had not consented to have her property included as a waste utilization area but also she was vigorously in opposition to the Chaplin application. Further, the DHEC official responsible for the review of Chaplin’s application knew prior to the issuance of the permit that the land of Doris Chaplin was not available for waste utilization and yet the permit was still issued.

Further, under the plan originally submitted by Chaplin to DHEC, the minimum required acreage for waste utilization was 88 acres based on nitrogen as the limiting nutrient for land used to grow cotton, Bahia, Coastal Hayland, and Rye Cover. Thus, at the time of the permit issuance, the available acreage was only that held by Chaplin and he held only 70 acres, an amount insufficient to meet the needed land acreage.

However, in an effort to cure the deficiency, Chaplin sought to make changes as well as additions to the Waste Management Plan after the permit had already been granted. For example, one of the authors of the Waste Management Plan wrote to DHEC on March 21, 2002, (a date almost two months after the permit was issued) and enclosed “the pages of changes and additions to the Chaplin Waste Management Plan that were requested by Tommy Chaplin.” The changes and additions removed specific waste utilization lands (in particular that of Doris Chaplin) and added other lands to give available lands of 156.1 acres. Further, a significant change in the plan occurred by the imposition of phosphorus as the nutrient limiting factor for land application rather than nitrogen as used in the old plan. As a result, the number of acres needed under the new plan to accommodate the land application of waste grew to 147.1 acres. However, even that number did not remain static. Rather, in what was presented as the “final plan” in Chaplin Exhibit One, the number of acres needed based on phosphorus as the limiting nutrient shrunk to 129.6 acres.

Such changes made after the permit was issued are more than a mere notice to DHEC of the addition of waste utilization lands. See S.C. Code Regs. 61-43.100.30D(4) (“The permittee must notify the Department in writing and receive written Departmental approval, . . . to, the following: 4. Addition of waste utilization areas.”). Rather, the changes here included the removal of lands and not just the addition of lands. Further, the changes added a new element (phosphorus) and removed an old element (nitrogen) for determining how much land was needed for proper waste management.

Thus, DHEC did not have before it a complete application when it made its decision to issue a permit on January 23, 2002. Instead, the composite of land needed to meet the required number of waste utilization acres (what land was in and what land was out) changed after the permit was issued, the application did not include the signed written agreements from consenting land owners, and the very means for establishing the number of acres needed (nitrogen or phosphorus) was not decided until after the permit was issued. Therefore, the permit was issued in error on January 23, 2002.

iii. Ground Water Monitoring Wells

Regulations 61-43.100.60(A)(3) provides that the waste management plan shall contain “groundwater monitoring well details and proposed groundwater monitoring program (if applicable).” Petitioners argue the application here was not complete since the application did not include groundwater monitoring details. I disagree.

Groundwater monitoring wells are not applicable for small swine facilities such as Chaplin’s but instead are mandatory only for those facilities that qualify as a large swine facility. See S.C. Code Regs. 61-43.100.90(F)(“Owners of lagoons and waste storage ponds at large swine facilities are required to install at least one up-gradient and two down-gradient monitoring wells at a depth which the Department considers appropriate around the lagoon in order to monitor seepage of waste from the lagoon. For small swine facilities, the Department may require monitoring wells upon Department review of the submittal package.”).

Here, while DHEC imposed a Condition # 19 requiring monitoring wells, that imposition occurred at the end of the permit granting process, not as an event that Chaplin had to accomplish to file a completed application. Thus, no duty existed to provide monitoring details before having a completed application.

iv. Waste Equipment

Regulations 61-43.100.60(A)(2)(f)(iii) provides that the Waste Management Plan shall include the “type of equipment used to transport and/or spread the swine waste (if applicable).” Petitioners argue that the type of equipment is not presented. I disagree.

Here, the Waste Management Plan explains, “The owner/operator is planning to agitate the liquid in the storage pond and pump with a stationary electric pump to a traveling gun irrigation system where the waste will be spread on cotton and coastal Bermuda fields.” Such a statement is a description of the type of equipment that will be used to spread the waste.

While certainly more could be given, what is given is sufficient. The requirement as to waste equipment is unlike the requirement for the irrigation system. The duty under the irrigation system is quite plain and requires “plans and specifications with supporting details and design calculations.” No such requirement is imposed on identifying the “type of equipment used.” Thus, no incomplete application results from the lack of more detail on the waste equipment to be used.

c. Impact of Lack of Completed Application

Having found the lack of a completed application due to the failure to provide an irrigation plan and due to the failure to provide signed waste utilization agreements along with making changes and additions to the waste utilization areas, the issue becomes deciding what result flows from an incomplete application begun under the 1998 regulations but not completed before the June 28, 2002 effective date of the 2002 regulations. The answer: the application is void due to the repeal of the 1998 regulations and the repeal of the Swine Act.

Section 1 of Act 460 of 1996 Acts of the General Assembly produced the Confined Swine Feeding Operations Act (Swine Act) and in numerous instances directed DHEC to promulgate regulations concerning swine facilities. For example, see the directives to promulgate regulations as to setbacks (S.C. Code Ann. § 47-20-20(F), as to land application of animal waste (S.C. Code Ann. § 47-20-40), as to waste lagoons and alternative technologies for the treatment of animal waste (S.C. Code Ann. § 47-20-60), as to the control of vectors (S.C. Code Ann. § 47-20-80), and as to feeding operations with a capacity of 420,000 pounds (S.C. Code Ann. § 47-20-160). To meet these demands, DHEC promulgated Regs. 61-43 effective June 26, 1998. Indeed, it is that regulation upon which Chaplin depends to obtain the requested permit.

However, that regulation was repealed in toto on June 28, 2002. The repeal arose from section 3(A) of the Swine Act since it gave DHEC additional specific directions for promulgating regulations that were to be “separate and distinct” from any regulations previously required by Section 1 of the Act:

(A) In addition to any regulations authorized to be promulgated by Section 1 of this act, the Department of Health and Environmental Control shall promulgate regulations regarding confined swine feeding operations which are separate and distinct from the regulations promulgated pursuant to Section 1.

Subsequent provisions of Section 3 of the 1996 Swine Act identified a non-exclusive listing of concepts to be included in the “separate and distinct” regulations. More importantly, to assure that a single and comprehensive regulation addressing confined swine feeding operations resulted, the General Assembly in Section 3(E) established a mechanism that repealed not only all of the regulations promulgated under the Swine Act but also the statutes of Chapter 20 of Title 47:

(E) When the regulations promulgated by the department pursuant to this section are approved by the General Assembly or take effect without action of the General Assembly, the provisions of this chapter and Section 46-45-30, and any regulations promulgated pursuant to authority granted in this chapter, are thereby repealed and shall no longer have the force and effect of law. (Emphasis added)

S.C. Code Ann. §47-20-165(E) (Supp. 2002).

DHEC accomplished its task of producing “separate and distinct” regulations on June 28, 2002 and acknowledged that the new regulations were not limited by the 1996 Swine Act since the passage of the regulations was designed to repeal the Act. See South Carolina State Register Vol. 26, Issue 6, June 28, 2002, Final Regulations, p.3 and 6 (DHEC explains that it is accomplishing a “[r]ewrite [of] Part 100 (Swine Facilities) in its entirety which will be the separate and distinct regulations for swine facilities as required by the 1996 Act No. 460” and further explains that DHEC’s regulations are not limited to “considering a reduction of requirements only to those not set forth in the Swine Act, since the 1996 Swine Act will be repealed with the passing of these regulations.”).

Thus, on June 28, 2002, both the 1996 Swine Act and the regulations promulgated thereunder were repealed. Further, since no savings clause was included in the repeal, the repeal operated to retroactively blot out all pending claims, State v. Rider, 320 S.C. 533, 466 S.E.2d 367 (1996); Taylor v. Murphy, 293 S.C. 316, 360 S.E.2d 314 (1987). ^[4]

Accordingly, since no completed application was submitted under the “old” regulations, and since the “old” regulations and the 1996 Swine Act were repealed without any enactment of a savings clause, the application filed by Chaplin became null and void on June 28, 2002. Thus, any future application to be filed with DHEC by Chaplin must be reviewed under the regulations in existence at the time of the subsequent application.

4. Degree of DHEC’s Technical Review

The challenge raised by the Petitioners is based upon the requirement that “[a]fter the Department has received a complete application package, a technical review will be conducted by the Department.” S. C. Code Regs. 61-43.100.70(B). In particular, Petitioners argue three positions asserting that DHEC failed to carry out its duty to conduct a technical review: no technical review of the irrigation plan, no technical review of the waste utilization areas, and no technical review of the “the pollution assimilative capacity of the receiving water body.”

A state agency cannot issue a permit if the agency fails to apply controlling mandatory provisions of law governing the granting of that permit. See e.g. Concerned Citizens v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) ("[w]ithout this requisite showing [of the S.C. Code Regs. 30-12 requirement of a demand for a marina, OCRM] has no legal ability to grant the permit."). In this case, DHEC is charged with conducting a technical review of the completed application. Regs. 61-43.100(B) (“After the Department has received a complete application package, a technical review will be conducted by the Department.”).

Here, an irrigation plan was required but was not filed prior to the January 23, 2002 permit issue date. Thus, since Chaplin’s application requires an irrigation plan and since one was not filed prior to the permit issuance date of January 23, 2002, DHEC failed to conduct the required technical review. Likewise, Chaplin failed to file the signed waste utilization agreements prior to the January 23, 2002 permit issuance date. Thus, again, DHEC failed to conduct the required technical review of the waste utilization areas. Accordingly, the permit was issued in error. ^[5]

5. Adequacy of Required Public Notice

DHEC is required to “publish a notice of issuance of a permit to construct or expand a swine facility in a local newspaper of general circulation in the area of the facility.” S.C. Code Regs. 61-43 100.70(J). In accordance with that duty, on January 23, 2002, DHEC gave such notice in The Messenger, a newspaper of general circulation in Hartsville, South Carolina.

The notice plainly stated that an agricultural permit had been issued, the date the permit was issued, to whom issued, and where the permit was to be used. Further, the permit explained the size of the facility that would use the permit and identified the fact that the facility would house 4,400 swine and that “3,694,000 gallons per year of liquid swine waste” would be land applied.

After stating such specifics, the notice explained the procedure for challenging the decision, provided the address for appealing the decision to the Clerk of DHEC, provided the time period for filing an appeal, and provided the address of the ALJD and of the Legal Office of DHEC for those wishing additional information.

Petitioners object to the permit on the grounds that the notice contained false information of a material nature with the falsity of that information known to DHEC before the publication occurred. The information claimed to be false is that Chaplin did not have permission to use approximately 250 acres of the 321 acres he designated for waste utilization purposes.

While it is true that Chaplin did not have permission to use 250 of the acres claimed, such a misstatement in the notice does not warrant either denying the permit or requiring DHEC to issue a new notice. Rather, a notice is sufficient so long as it fulfills the purpose of the statute requiring the notice. See Salemme v. Town of Seymour, 817 A.2d 636 (Conn. 2003) ("In determining whether the notice is sufficient, we must look to the purpose of the statute....”). In this instance, the purpose of DHEC’s notice is to inform the public that a permit has been issued. See S.C. Code Regs. 61-43 100.70(J) (where DHEC is required to “publish a notice of issuance of a permit to construct or expand a swine facility in a local newspaper of general circulation in the area of the facility.”); see Bloom Tp. High School v. Illinois Commerce Com'n, 722 N.E.2d 676 (Ill.App. 1 Dist. 1999) (“[T]he purpose of a notice provision in . . . a statute is to ensure that a party is actually informed.”). Here, the public is clearly informed of DHEC’s decision.

The notice explains to the public that the permit has been issued, gives a description of where and how the permit will be utilized, and identifies the timing and means for members of the public to challenge the decision. Moreover, the misstatement as to the number of acres does not alter the fundamental terms of the public notice. For example, the error relates to the number of acres upon which the method of waste utilization will be applied rather than a misstatement on the method to be used for waste utilization.

In sum, the misstatement does not defeat the ability of the notice to accomplish its purpose of informing the public of the issuance of a decision so that any member of the public can challenge that decision if they so choose. Thus, the notice is not defective to any degree warranting a denial of the permit or warranting the issuance of a new public notice.

6. Size of Facility: Small versus Large

To discharge wastes from a swine feeding facility after July 1, 1996, the permit must comply with the Confined Swine Feeding Operations Act (Swine Act). See S.C. Code Ann. §§ 47-20-10 through 47-20-160. Compliance with the Swine Act depends to a large degree on the requirements established by regulations promulgated by DHEC. In particular, § 47-20-160(B) requires DHEC to “promulgate regulations for siting and managing animal feeding operations with a capacity of 420,000 pounds of normal production of animal live weight or less at any one time, including land application of waste.” Thus, the General Assembly identified a specific size of animal feeding operation and directed DHEC to establish regulations for the land application of waste from that operation and for the siting and managing of that operation.

However, the methodology for determining the requisite “capacity” was not explicitly stated by the General Assembly. Rather, the Legislature gave DHEC a single broad measure for determining a facility’s capacity, i.e. the “normal production of animal live weight . . . at any one time” at the facility. Thus, in the absence of a specific methodology, the duty to “fill up the details” for determining the requisite capacity fell to DHEC. See Heyward v. South Carolina Tax Commission, 240 S.C. 347, 126 S.E.2d 15 (1962) (“[The General Assembly] may authorize an administrative agency or board 'to fill up the details' by prescribing rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.”).

Pursuant to its duty, DHEC established a methodology for determining the capacity of a swine feeding operation based upon two steps. First, DHEC defined the previously undefined statutory language of “normal production of animal live weight at any one time” as follows:

“Normal production animal live weight at any one time” means the maximum number of animals at the facility at any one time multiplied by the weighted average of those animals.

S.C. Code Regs. 61-43 100.20(BB).

Second, DHEC, having created the term “weighted average” in its definition of “normal production animal live weight,” defined the term “weighted average” as well:

“Weighted average of swine” means the difference between the average exit weight of the swine from swine facility and the average entry weight divided by two, as shown by the following formula:

Weighted Average of Swine = (Average Exit Weight – Average Entry Weight)/2

S.C. Code Regs. 61-43 100.20(UU).

Against this backdrop, Petitioners first argue that S.C. Code Regs. 61-43 100.20(UU) is ambiguous so as to require extrinsic guides of construction to determine the meaning of the regulation. Second, Petitioners contend that the proper construction requires substituting a “plus” sign for the “minus” sign. Finally, Petitioners assert that if the plus sign is substituted for the minus sign, the average weight per animal for the Chaplin application is 145 pounds (50 pounds at entry plus 240 pounds at exit divided by 2), the total capacity for the facility is 638,000 pounds (4,400 animals times 145 pounds), and the 420,000 pound maximum for classification as a small swine facility is exceeded.

I cannot agree with the Petitioners. The language of Regs. 61-43.100.20(UU) is simply not ambiguous.

While the formula chosen by DHEC may not be the formula some would have chosen, it is nonetheless a formula that is plain and clearly written. In fact, the regulation defines “weighted average of swine” not once but twice, once verbally and once mathematically. Perhaps if the two means of expression were in conflict with each other, an ambiguity might be present. However, both forms of expression are entirely consistent, the verbal expression of “difference between” being identical to the mathematic expression of “ – ”. Thus, having said it twice and in a consistent manner, the definition writers meant what they plainly stated. Accordingly, no ambiguity exists and the plain language controls. Charleston County Parents for Public Schools, Inc. v. Moseley, 343 S.C. 509, 515, 541 S.E.2d 533, 536 (2001) (“[W]here a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself.”).

Certainly, application of the plain language rule must not be the end of a statutory construction analysis since even plain language must not be followed blindly. Rather, the plain and literal language used will be rejected as an indicator of intent when application of the literal language “would lead to a result so plainly absurd that it could not possibly have been intended.” South Carolina Bd. of Dental Examiners v. Breeland, 208 S.C. 469, 480, 38 S.E.2d 644, 650 (1946). Likewise, the literal meaning will be rejected where applying such language contradicts the real purpose of the matter under review. Greenville Baseball v. Bearden, 200 S.C. 363, 20 S.E.2d 813 (1942). Here, the literal words neither give an absurd result nor contradict the real purpose under review.

“[T]o justify a departure from the letter of the law ... the absurdity must be so gross as to shock the general moral or common sense. And there must be something to make plain the intent . . . that the letter of the statute is not to prevail.” Crooks v. Harrelson, 282 U.S. 55, 59-60 (1930). Indeed, an adjudicating body should be less than quick to depart from the meaning of literal language when the controversy between the parties arises from differing views on policy. A provision “is not absurd merely because it does not comport with one's notion of what constitutes good policy.” Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003).

DHEC’s method is not beyond “common sense.” Rather, DHEC’s definition presents a policy position with which Petitioners simply disagree. When read as a whole, DHEC’s definitions create a logical formula that quantifies the weight gained (i.e. the pounds added) over the course of the animal’s stay at the facility and then computes the average of that weight gain. Thus, an animal enters at 50 pounds and exits at 240 pounds with the weight produced in the facility being 190 pounds. Therefore, the beginning weight gain of 0 and the ending weight gain of 190 gives the production of an average weight gain of 95 pounds. When multiplied by the 4,400 maximum number of animals at the facility, the “normal production animal live weight” produced is 418,000 pounds.

In short, Petitioners seek a different measure of capacity, one based on the average of the entire weight of the swine rather than one based on the weight produced in the facility. While not everyone would have chosen the method DHEC adopted, the method chosen is not absurd and will not be disregarded.

Further, the method chosen by DHEC does not contradict the purpose of the matter under review. Rather, the primary purpose of the General Assembly in creating capacity designations was to differentiate between small swine facilities and large swine facilities. Such a differentiation is designed to impose greater restrictions on large swine facilities than on small facilities. For example, a large swine facility has the duty of requiring a public notice and a public hearing (S.C. Code Regs. 61-43.100.70(G)), requiring property line setbacks of 1000 feet versus 600 feet (S.C. Code Regs. 61-43.100.80(B)(2) and 100.80(C)(1)), and requiring the waste storage pond to be lined with a combination of natural and synthetic material (S.C. Code Regs. 61-43 100.90(C).

Nothing in the formula established by DHEC conflicts with the purpose of setting a line of demarcation between small and large facilities. On the contrary, the formula maintains a separation point by establishing a clear boundary between the two, albeit at a level of capacity unappreciated by the Petitioners. Therefore, since the purpose is not being thwarted by the literal language, no reason exists to depart from the plain language of the regulation.^[6]

IV. Order

The South Carolina Department of Health and Environmental Control erred in granting Animal Feeding Operation Permit Number 18,675-AG to Thomas G. Chaplin for the Thomas G Chaplin Swine Facility. First, no permit can be granted since the proposed facility fails to ensure that the waste storage pond will be at least two feet above the water table as required by S.C. Code Ann. § 47‑20‑60 (E) (Supp. 2002) and S.C. Code Regs. §61-43.100.90(E). Second, since Chaplin did not file a complete application and since a permit can be granted under S.C. Code Regs. §61-43-100.70(A) only upon the filing of a complete application, DHEC erred in granting the Chaplin permit. Further, since both the “old” regulations and the 1996 Swine Act were repealed by the enactment of “new” regulations with the repeal having no savings clause, the application filed by Chaplin became null and void on June 28, 2002. Thus, any future application to be filed with DHEC by Chaplin must be reviewed under the regulations in existence at the time of the subsequent application. Finally, the granting of the permit was in error since DHEC failed to carry out its mandatory duty of conducting a technical review of the irrigation plan and the waste utilization areas prior to the issuance of the permit on January 23, 2002. Therefore, it is ordered that DHEC’s decision is reversed, and the permit is denied.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: June 16, 2003

Columbia, South Carolina