ORDERS:
CONSENT ORDER
This matter came before this Court on June 26-27, 2003, for a hearing on
Petitioner’s Petition filed September 13, 2002, in which Petitioner sought review of the
decision by the South Carolina Department of Health and Environmental Control
(hereinafter “DHEC”), dated July 22, 2002, wherein DHEC denied the permit application
of Petitioner to construct and operate broiler houses. This Court granted a Motion to
Intervene in February, 2003, adding as Respondents, Henry Brown, Carolyn Binnicker,
David Garrick, Wayne Garrick, and Johnny Crider (hereafter the “neighbors”).
Petitioner appeared represented by Scott T. Justice, Esquire, Respondent DHEC appeared
represented by Samuel L. Finklea, Esquire, and Respondent Neighbors appeared
represented by Robert Guild, Esquire. After a full and complete proceeding in which all
parties were allowed to present evidence and testify, the Parties informed the Court that
they wished to explore settlement negotiations into the matter. The Parties have reported
to the Court that they have in fact arrived at a resolution of this matter.
NOW, on Consent Motion by the Parties, Petitioner’s Request is GRANTED and
DHEC is hereby ordered to issue Petitioner a Permit to Construct and an Authorization to
Operate. This Order is conditioned on the following terms, agreed to by the Parties:
1)Swine Facility
a. Production of Hogs and Operation of Facility.
Petitioner will be allowed to complete the growing cycle on swine on premises in
the existing swing facility at the time construction is begun on the broiler houses. No
additional swine can be added to the facility after construction of the broiler houses is
begun. For purposes of this Agreement, “construction” is defined as that point in time
at which erection of the first broiler house physical structure is started. Site preparation
does not constitute “construction.”
b. Closure of Swine Facility.
Petitioner agrees that within 90 days of the conclusion of the final growing cycle
referenced above, he will submit to DHEC an acceptable closure plan for the swine
facility prepared by NRCS or other qualified plan preparer licensed in the State of South
Carolina. Petitioner further agrees that once poultry operations are begun on the
property, no attempt will be made to renew the permit to operate the swine facility and
DHEC will cancel the operational permit without interference from Petitioner.
Petitioner also agrees that if the property is offered for sale after production of poultry
has begun on the property, the property will only be offered on the condition that the
swine operation can not be re-activated.
Petitioner further agrees that as part of the closure of the swine facility, he will
decommission the waste lagoon at the swine facility, in accordance with all federal and
state laws and regulations and in accordance with prevailing DHEC regulations and
guidelines for the closure and decommissioning of swine waste facilities.
Petitioner has made known to Respondents of his intention, once poultry
production is begun and the swine facility is closed, to convert the current swine waste
lagoon into an irrigation retention pond for the purpose of retaining fresh water for use as
irrigation on the southern half of the subject property. Petitioner will convert the lagoon
in accordance with all federal and state laws and regulations, including any applicable
DHEC regulations.
2)Broiler House Location and Additional Specifications
a. Petitioner agrees to permanently limit construction to four (4) broiler houses,
with the location limited to the northern half of the property. The measured “footprint”
of the houses is shown on Exhibit A to this Order.
b. Petitioner will construct deflection walls in front of each tunnel exhaust fan on
the eastern end of each broiler house. The walls will be constructed in such a manner as
to deflect the exhausted air upwards and away from the houses. The walls will be
constructed of wood frame with metal decking covering, with a height of approximately
four feet with a width sufficient to cover the width of each fan. The walls will be placed
on an approximately 30 degree angle.
c. A misting system will be installed on the walls to provide a mist of water on
the air as it is exhausted in an experimental effort to further abate odors. The misting
system will consist of spay nozzles attached to the deflection walls, providing a mist of
water on the exhausted air. Concrete pads will be installed at the base of the deflection
walls and around the east end of the broiler house to move the water away from the
broiler houses.
The Parties agree that the mister system is experimental and Petitioner is not
responsible for the success or failure of the system. The system will be operated during
the first spring and summer that the broiler houses are in operation. The system will not
be used during the second spring and summer of operation. After August 31, of the
second summer of operation, Petitioner, a representative from DHEC, and a
representative from the Neighbors, will meet to review whether the parties believe the
mister system has been effective in reducing odor. If Petitioner and Neighbors cannot
agree as to the continued operation of the mister system, the DHEC representative will
decide whether the mister system should continue to operate.
3)Vegetative Buffer
Petitioner agrees to plant a vegetative buffer as illustrated on exhibit A. The
buffer shall be 250 feet deep. The first 50 feet of the buffer will be planted in Leyland
cypress on 10’ x 10’ spacing with every other row alternated so as to provide as much
visual barrier as possible. The remaining buffer depth will be planted in a pine variety
of Petitioner’s choosing, also on 10’ x 10’ spacing. The buffer depth shall be measured
on the Northern and Western sides from the property line. No buffer will be required on
the Eastern side of the property.
The buffer will be planted using seedlings obtained from the South Carolina
Forestry Commission and Petitioner agrees to maintain the buffer using Best
Management Practices as prescribed by the South Carolina Forestry Commission.
Petitioner agrees to replant after the first year of operation if there has been a
mortality rate of 25% or higher among the seedlings.
4)Other Requirements
Waste from the broiler houses will be handled according to the Waste
Management Plan in Petitioner’s original Permit Application. In addition, Petitioner
agrees that no waste from the poultry operation will be distributed on land within one-half (1/2) mile of the subject property. An incinerator will be installed and located in the
Northeastern corner of the property for the purpose of disposing of dead birds. The
location of the incinerator is shown on Exhibit A.
The management and operation of Petitioner’s broiler houses will be conducted in
accordance with DHEC regulations. Any additional special conditions required by
DHEC and attached to Petitioner’s Operating Permit are included in this Agreement by
reference.
5)Conclusion
The Parties agree that the conditions cited above are the sole conditions relating
to Petitioner’s poultry operation on the subject property and that Respondents DHEC and
Neighbors have no further objection to the issuance of the Permit to Construct and
Authorization to Operate and no further appeal will be had from this matter.
IT IS SO ORDERED.
Dated: March 3, 2004
Honorable Marvin F. Kittrell
Chief Administrative Law Judge |
