ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASEOn December 11, 2002, the South Carolina Department of Health and Environmental
Control (DHEC) granted State Animal Feeding Operation Permit No. 18,757-AG to John and
Lois Hare in Saluda County, South Carolina for the construction and operation of five (5) broiler
houses. Petitioners Robert P. Corley and Judy D. Corley own 39 acres adjacent to the proposed
broiler facility site. The Corleys object to the permit on the grounds that air and water pollution
from the poultry facility will unreasonably interfere with their use and enjoyment of their
property and natural resources; that the pollution from the facility threatens the water quality of
nearby surface waters including Lake Murray, particularly in light of the numerous existing
animal production facilities in the vicinity; and that DHEC failed to provide public notice of the
facility application as required by regulation. A hearing was held before me on August 12, 2003,
at the Administrative Law Judge Division. Based on the findings of fact and conclusions of law
herein, I conclude that this matter should be remanded to DHEC for proceedings consistent with
this Order.
ORDER DENYING MOTION IN LIMINE
On May 19, 2003, a hearing was conducted on DHEC’s April 17, 2003, Motion in
Limine, and Petitioners’ Return in Opposition filed May 2, 2003. DHEC contended that
numerous exhibits proposed by Petitioners should be excluded from evidence since they were
neither reviewed by DHEC in the course of processing the Hare application nor required to be
reviewed by regulation. Petitioners contended that DHEC’s admitted failure to review these
documents in its permit decision evidenced DHEC’s failure to comply with its regulatory duties
and that the proposed exhibits were relevant regarding whether the facility met requirements for
siting and pollution control. I concluded that these proposed exhibits were relevant and
admissible and DHEC’s Motion in Limine was denied. R.61-43.200.70(E), R.61-43.200.70(F),
R. 61-68 D. National Health Corp. v. South Carolina Dept. of Health and Environmental
Control, 380 S.E.2d 841, at 848, 298 S.C. 373, (S.C.App. 1989); S.C. DHEC v. Armstrong, 359
S.E.2d 302, 293 S.C. 209 at 214 (Ct.App. 1987).
FINDINGS OF FACT
Having observed the witnesses and reviewed the exhibits presented at the hearing and
having closely passed upon their credibility, taking into consideration the burden of proof upon
the Petitioners, I make the following findings of fact by a preponderance of the evidence:
1. Notice of the date, time, place and nature of the hearing was timely given to all parties.
2. On December 11, 2002, DHEC issued a letter to John and Lois Hare approving the
construction and operation of five (5) broiler houses, as State Animal Feeding Operation Permit
No. 18,757-AG. No local zoning or land use requirements prohibit the broiler houses.
3. The Petitioners Robert P. Corley and Judy D. Corley, the adjoining landowners to the
proposed broiler facility site, timely filed their appeal and request for contested case hearing to
challenge DHEC’s decision to grant the permit. The Corleys live on and use their property and its
natural resources. The proposed facility would be located only about 200 feet from the Corley’s
property line, approximately 1000 feet from the Corley’s home. In addition, a spring and stream
run near their common property line. The Corleys use the waters of this stream and the
downstream waters of Lake Murray for recreation and wildlife observation. Petitioners have
established standing to challenge the proposed permit. Friends of the Earth v. Laidlaw
Environmental Services, 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Sea Pines
Association v. S.C. Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001).
4. Initially, the Hare application sought approval for twelve (12) broiler houses at the
proposed site. Corley Ex. 7. DHEC’s Joy Shealy noted that these poultry houses would be
closer than the required 400 feet from the property line required by regulation and requested that
the Hares obtain the required written waiver from the relevant property owner. Corley Ex. 6.
Robert P. Corley
5. In August 2002 the Hares presented the Corleys with a DHEC “Notice of Intent” form
which failed to specify the number of proposed poultry barns, the setback distance of those barns
from the Corley property line or spring, or where Mr. Hare planned to dispose of the poultry
waste. Mr. Hare informed the Corleys that he was considering adding some poultry houses for
his son. He said it might be anywhere from one to six years away or he might not even do it. Tr.
209. Mr. Corley said he couldn’t sign the form then but wanted to think about it. He later
returned the form to Mr. Hare unsigned. Based on Mr. Hare’s statements, Mr. Corley understood
that additional poultry houses were only a possibility, not a definite plan. Tr. 210.
6. The next month, September 2002, Mr. Corley saw a notebook-sized notice posted on a
utility pole at Double Bridge Road and Highway 378 some 20 feet off the roadway. He parked
his vehicle, exited it, then crossed a ditch to read the notice, which proved to be a DHEC notice
regarding the expansion of the Douglas poultry facility located more than three miles away. Tr.
212, 213. The notice was printed on 8 ½ " x 11" white paper with standard size type. During
the following weeks and months, Mr. Corley continued to observe, but did not stop to read, what
appeared to be this same notice posted on the pole he regularly drove past. Tr. 213-214. In
December 2002 his father called to inform him that a legal notice had been published in the
December 19th Saluda Sentinel newspaper of the approval of the Hare broiler facility. Only then
did he learn that a later notice posted in the same spot on the power pole as the Douglas notice
actually related to the Hare application. Tr. 215. Having read the Douglas notice, Mr. Corley
had no reason to stop his vehicle, cross the ditch and read what appeared to be the same Douglas
notice again. Tr. 215. The Hare notice was also printed on 8 ½" x 11" white paper with standard
type.
7. Upon reading the newspaper notice of the deadline for appealing the Hare permit, Mr.
Corley, with only seven days remaining over the Christmas holidays, contacted 43 people who
live near the site and obtained signatures of 38 people on a petition opposing the permit. He
submitted this petition along with his appeal letter and a map of the surrounding area showing
existing facilities within a three-mile radius of the proposed site. Of the other adjoining
landowners to the Hare property, three–B.G. Gardner, Kathleen Havird and Corley– signed. The
other two were out of town during the short time that Mr. Corley had available. Tr. 214-216.
8. None of the locations where DHEC’s records indicate that notices of the Hare
application were posted is either on the perimeter of the proposed site or in close proximity to the
site, as required by the DHEC regulations discussed below. One site is approximately two miles
by road and one mile “as the crow flies” from the site. The second posting site is two and one-half to three miles from the site. The third site is one-quarter mile from the site perimeter. The
fourth posting site-- the location of the posting noted by Mr. Corley for the Douglas expansion--is roughly three-fourths mile from the site. Tr. 217-219. Neither Mr. Hare nor anyone from
DHEC contacted Mr. Corley to inform him that an application had been filed by the Hares or to
ask the Corleys’ position regarding the proposed facility. No one from DHEC came to the
Corley property to observe the presence of the spring on the boundary below the barn site, nor
did they ask him about his plans for use of his property, including his son’s plans to build a house
near the barn site. Tr. 219.
9. About 100 feet of the Corley-Hare property line follows the branch or stream which
flows from the nearby spring. Mr. Corley has observed Mr. Hare spreading manure in a field
which is the site of the proposed new barns; a location where water runs downhill into Corley’s
spring and branch. Tr. 198, 207. Mr. Corley has observed stormwater runoff flow down the hill
from the proposed barn site through a depression or swale into his branch. Tr. 201-202, 204; Pet.
Exs. 9, 11.
10. Mr. Corley’s son plans to build his home in a hardwood grove on the Corley property
a mere 20 or 30 feet from Mr. Hare’s adjoining property line, although at the time of the hearing
no construction had begun. Tr. 208; Pet. Ex. 3.
11. Based on his experience with water pollution from animal manure, Mr. Corley is
concerned that the approval of the proposed poultry barns will cause environmental harm to his
branch and his planned pond.
12. As Mr. Corley drives home from Lexington on Highway 378, he can smell chicken
manure, including the odors from Mr. Hare’s existing poultry facility. Tr. 226.
13. Mr. Corley objects to the proposed Hare poultry facilities because of the odors and
the threat to his spring. He is concerned that his son will not build his home at the site he
selected near the Hare’s property. He testified there are simply too many existing poultry
facilities in the area now in proximity to Lake Murray. Tr. 228.
14. If Mr. Corley had received timely notice of the Hare permit application, he would
have collected the required 20 signatures and requested a DHEC public hearing. Tr. 230.
Joy Sherman Shealy
15. Joy Shealy is an Environmental Engineer in DHEC’s agricultural permitting section
where she has worked for the last five years reviewing many agricultural permits. Tr. 16. The
Hares applied for a broiler facility permit which anticipates constructing barns on a compacted
clay base. Wood shavings are placed on the floor in the barn. Waste is absorbed in the wood
shavings and removed periodically when the animals are removed. The waste from the Hare
facility would be handled by contract disposal offsite. Tr. 18-19.
16. The DHEC district office posted notices for the community to inform them that the
Hare application had been received. Those notices gave instructions on how to make comments
and concerns known. In this case, since DHEC did not receive any comments during the 30-day
period, they assumed there were no objections and made the permit decision. Tr. 21. Because no
comments were received, DHEC did not consider having a public meeting regarding the Hare
application. Tr. 27.
17. In reviewing the Hare’s application, Ms. Shealy did not consider the classification of
adjacent waters since she did not feel that the site was close enough to any larger water body to
warrant checking. Tr. 32. Since this application was permitted as a dry waste facility with no
storage or land application of waste, Ms. Shealy did not consider the site’s proximity to other
known point source or potential non-point source discharges. Tr. 33-34.
18. While DHEC has performed previous air pollution models of downwind receptors
for other proposed facilities, it did not do so here since the facility met the setbacks, didn’t have
any residences within 1,000 feet, and was not proposing any exposure of the waste to the wind.
DHEC did not feel there were any exceptional circumstances present which warranted further
review for air quality. Tr. 35.
19. The original permit application and waste management plan proposed twelve poultry
houses; however, the map showed only nine. Tr. 39. Ms. Shealy was told by the Natural
Resource Conservation Service (NRCS) plan preparer that although Mr. Hare sought twelve
barns, only nine barns could be placed on the site given required setbacks. Ms. Shealy marked
out “twelve” on the application and wrote “five” next to it since five barns were ultimately
approved. Tr. 39-40. Another version of the application shows the entry of twelve barns marked
through and replaced with nine. Tr. 49. Resp. Ex. 20.
20. The original public notice regarding the Hare application did not list the number of
proposed barns; however, the poundage of bird weight corresponds to twelve barns. While the
number of barns later changed to nine and then five, DHEC decided not to repost the application
since a smaller number of houses was now proposed. DHEC’s assumption was that if people had
comments or concerns for more barns, a smaller number of barns would not raise additional
comments. DHEC determined that a new notice would not be justified for a smaller number of
poultry houses. Tr. 57-58.
21. Ms. Shealy testified that DHEC generally tries to post the notices where they will be
seen. If a farm is not fronted by four roads, the notices will be posted at a nearby intersection, a
nearby post office or a place where people will generally see them. Tr. 58.
22. By reducing the number of barns from twelve to nine and finally to five, the required
setback of the Hare poultry barns from the Corley property line was reduced from 400 feet to
only 200 feet, since the facility was thus reclassified from a “large” to a “small” facility under the
regulations. Tr. 67-69. However, the approved application form incorrectly indicated that a 600
feet setback from property lines was achieved. Ms. Shealy, while acknowledging that the
application was not filled out correctly, asserted that she did not use the setback numbers
submitted on the application, but estimated them herself on a map. Tr. 70. She did not recall
who altered the number of barns, the number of animals, their weight and the manure produced
on the approved application. Tr. 71-72. Ms. Shealy did make such changes on another version
of the application. Tr. 74-75. Mr. John Hare signed the original application for twelve barns as
the applicant, but not the subsequent changes; the NRCS engineer, who signed only the original
application, also did not sign the changes. Tr. 75.
23. Ms. Shealy never visited the site of the proposed Hare facility. The only DHEC site
inspection was performed by a Mr. Dan James from the Greenwood office who did the
preliminary site inspection and approved the site for twelve barns. Mr. James had no further
involvement in the permit review process. Tr. 77-78. Ms. Shealy performed the technical review
of the permit application and approved the permit. Tr. 78. She did not post the notices of the
receipt of the permit application and only received a form listing the posted locations. She had
no personal knowledge of where notices were posted for the Hare application, including whether
the notices were posted on the perimeter of the site, or in close proximity to the property. Tr. 79-81. She did not measure the distance of the posting locations from the site and did not know
personally whether the regulatory requirements for posting were met. Tr. 81.
24. The Corleys’ Notice of Intent form was returned with the notation, “Refused to sign”
entered. Ms. Shealy does not assume that such refusal to sign indicates an objection to the
facility. Tr. 83-84. DHEC Ex. 6. Ms. Shealy did not contact the Corleys to determine their
position on the Hare application. Tr. 85. The application package included tax map information
including the names and address of Robert P. and Judy B. Corley. Although DHEC knew the
Corleys were the adjacent property owners, that they had refused to sign the notice of intent
form, and could have sent them a specific notice with the details of the Hare facility application
DHEC did not do so. Ms. Shealy asserted that such notice was not required by regulation. Tr.
85-86. Ms. Shealy assumed that the Corleys had seen the notice form which instructed them how
to make objections and obtain additional information. Tr. 86.
25. The Notice of Intent form provides no numbers as to the size or number of barns in
the proposed Hare facility, nor does it specify the distance of the proposed barns from the
Corleys’ property line and residence, nor the location of land disposal sites. Tr. 87.
26. The Hare permit requires him to use F&L manure brokerage for disposal of his
poultry litter. F&L is permitted to buy, sell and land apply manure anywhere in the state pursuant
to regulation. Tr. 91-92. Thus, manure from the Hare facility could be land applied in close
proximity to the Corley property in Saluda County and in close proximity to the waters of Lake
Murray on approved sites as long as required setbacks from surface waters were met. Tr. 93.
Such setbacks from surface waters are 100 feet for surface application of dry manure, 75 feet if
plowed in and 50 feet if injected. Tr. 96.
27. The posted notice of the Hare application contained no listing of the number of barns
proposed but only the “normal production live weight at any one time.” This phrase is a DHEC
term of art defined in DHEC regulations--not a term in common English usage. Tr. 98. The
number is meaningless without such definition. Tr. 99. The notice provided no information on
the setback of the barns from neighboring properties and only stated the facility location in
general terms: “on S-41-378, five miles from traffic circle, Circle Community, Saluda County,
South Carolina.” Tr. 99. The barns will actually be over 1,000 feet from Highway 378. Tr. 102.
The notice does state that if more than 20 people submit written objections to the permit, DHEC
will conduct a public meeting in the community. No written comments were received during the
comment period, and no public meeting was held on the Hare permit. Tr. 102.
28. After the Hare permit was issued, Mr. Corley submitted a petition signed by more
than 20 persons objecting to the proposed Hare facility. Pet. Ex. 28. If this petition had been
received during the application review period, DHEC would have held a public meeting in the
community to provide an opportunity for the citizens to meet with DHEC. At the meeting,
DHEC would have presented a summary of the application and made available maps which
showed the actual location of the barns. The community would have been provided an
opportunity to express their concerns and objections and ask questions. DHEC is required by
regulation to take such comments by the public into account in making its permit decision if
enough objections are received to necessitate a public meeting. Tr. 106-107.
29. Mr. Hare submitted a copy of a tax map of the proposed site and neighboring
property as part of the application package. Pet. Ex. 3. Handwriting on the map, in red, by either
the plan preparer or Mr. Hare himself indicates the location of houses and wells by “X’s.” The
“X” indicating the location of the Corley residence is farther from the barn location than the
actual house depicted on the aerial photo-based map. Tr. 113-114. The footprint of the proposed
barns are required by regulation to be at least 1,000 feet from the Corley residence. Tr. 114.
Without measuring on the tax map, Ms. Shealy does not know the distance of the Corley
residence from the nearest proposed barn. Tr. 114. Although the barn locations have changed
several times during the permit review as the number of barns changed from twelve to nine to
five, there is no notation anywhere in the permit file regarding the distance from nearby
residences. Tr. 116. The five-barn configuration, as approved, is significantly closer to the
Corley property line and residence than the nine-barn proposal. Two of the five barns are now
only 200 feet from the Corley property line. Tr. 118; DHEC Exs. 15b, 19.
30. The NRCS map, DHEC Ex. 19, depicted a feature identified as a “water trough,”
near the barn site. Ms. Shealy did not know what that feature was nor did she further investigate
whether such a feature might impact the setback of the barns from such ditches, swales or surface
waters. Tr. 119-120.
31. Ms. Shealy did not consider soil type to play a significant role in setback
consideration for this permit. Tr. 122. The soil survey indicates that the Georgeville GgC3 soils
located between the proposed barns site and the Corley property line is a silty clay loam,
described as “severely eroded,” and presenting a “severe erosion hazard,” requiring special
management to control erosion. Tr. 123-124. The Georgeville series, GeB2, also between the
barn site and the Corley property line is described as “eroded” and presenting a “moderate
erosion hazard.” Tr. 124. Such highly erodible clay soil is more likely to allow stormwater with
entrained manure to flow down slope than a sandy soil. Tr. 126. 40. The stream which borders
the Corley and Hare properties is about 30 feet below the ridge where the Hare barns would be
located. Tr. 169
32. In Ms. Shealy’s view, since the Hare poultry facility was deemed a ‘no-discharge’
farm with almost no potential for discharge, the requirement of the regulation to consider
proximity to other known point source discharges and potential non-point discharges might not
be applicable. Tr. 135.
33. No DHEC inspector or employee will be present to oversee whether Mr. Hare or his
manure broker complies with regulatory requirements. Tr. 137. Ms. Shealy was not aware of
Mr. Hare’s record of manure management at his existing poultry facility. Nor was she aware of
the history of manure management of the other numerous animal facilities in the vicinity of the
proposed Hare site, [Pet. Ex. 1]. Tr. 139-140. To the contrary, she understands that she is not
authorized to consider past compliance history in making permit decisions. Tr. 140.
34. By design, poultry waste will be collected in the proposed Hare facility. The waste
will decompose and will discharge a complex series of gases and particulates into the air which
will be removed from the barns via exhaust fans. Tr. 153. Among those 150 chemical
compounds are pollutants which have noxious odors. There will be odors associated with
ammonia, hydrogen sulfide and mercaptans discharged from the barns. The barn design includes
no scrubbers, just an exhaust fan to promote the health of the chickens, which would die if
exposed to the air pollution. Tr. 154-155. Nevertheless, Ms. Shealy determined that this facility
would not cause an increase in air pollution. Tr. 156. Although several references to air
pollution are included, there are no standards in DHEC’s agricultural regulations for particulates
or chemical air pollution from poultry facilities. Tr. 180.
35. Ms. Shealy is a member of the American Society of Agricultural Engineers, which
has adopted an engineering practice for the control of manure odors. The ASAE standard
identifies that proper site selection for animal production facilities is critical to protect
neighboring land use from air pollution released from animal facilities. The ASAE recommends
a minimum setback of animal production facilities from neighboring residences of at least one-quarter mile and a mile from more concentrated residential areas. Tr. 156-157. The Corley
residence will be less than the 1/4 mile setback from the Hare poultry barns recommended by the
ASAE. Tr. 158.
36. Some 16 existing poultry facilities and 1 dairy facility are located within a five mile
radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1.
37. Numerous approved land application sites for animal manure are near and even
directly adjacent to Lake Murray. Pet. Exs. 16, 17, 20, 24 and 25. In addition DHEC’s own
inspection records document a number of troubling known instances of improper manure
management at these same facilities near the Lake, including the improper storage of manure in
uncovered piles- the potential cause of water pollution. Pet. Exs. 21, 22, 23. Mr. John Hare’s
own operations at his existing poultry facility were rated “unsatisfactory” for his improper
manure spreading and for his failure to eliminate bird carcasses from the litter. Pet. Ex. 18.
DISCUSSION
The proposed Hare poultry facility is a potential source of water pollution and a certain
source of odorous air pollution. As the record establishes and the regulatory scheme itself
acknowledges, proper management of the animal waste generated by this facility is essential to
prevent significant environmental harm to surface waters of the state and the human and natural
life which depend thereon. While water pollution risk may be averted by assuring proper animal
waste management, air pollution control depends essentially on the proper siting of such a
facility. Since the discharge of gases and particulates from decomposing animal wastes in the
poultry barns is by design and is certain during routine operations, only distance from objecting
neighbors can protect them from the impact of odorous air pollution.
Air and water pollution concerns underlie much of the consideration in DHEC’s
Agricultural Animal Facility Permitting Regulations, R. 61-43. The regulation specifies
minimum and absolute setbacks for production barns from streams and other waters of the state
and from adjacent property lines and nearby residences. R.61-43.200.80(A). In addition, when
evaluating site selection, DHEC is required to consider factors which are relevant to preventing
or mitigating air and water pollution. R.61-43.200.70(E). Finally, in making permit decisions,
DHEC is affirmatively mandated to control air and water pollution from new or expanded
facilities:
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.
R.61-43.200.70(E). Such considerations are also mandated by the Anti- Degradation
requirements of DHEC’s Water Quality Regulations, R. 61-68 D.
Under such circumstances the Corleys, as adjacent property owners and residents, have
recognized property and liberty interests in the use and enjoyment of their home, their land, the
waters of the state and natural resources in the vicinity of the proposed Hare poultry facility.
Lever v. Wilder Mobile Homes, 283 S.C. 452, 322 S.E.2d 692, 693 (S.C. App. 1984) (It is a
nuisance to use property in such a way that annoying or injurious odors are emitted.) Roach v.
Combined Utility Comm. Of the City of Easley, 290 S.C. 437, 351 S.E.2d 168 (S.C. App. 1986);
Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 ( S.C. 1962). Those interests of
the Corleys are threatened by the proposed permitting of the Hare poultry barns; however the
record indicates no consideration of the Corleys’ interests by DHEC in its review of the Hare
application. No one from DHEC ever contacted the Corleys or visited the Corley property. The
Corleys never received any actual notice of the Hare application or of any opportunity to be
heard, to comment or object to the proposed permit until the permit decision had been made and
this contested case appeal was filed.
1. NOTICE
Facing an agency permitting decision which threatened their property and liberty
interests, the Corleys were entitled to notice and an opportunity to be heard by DHEC before it
made its permit decision. Such administrative due process is guaranteed by Article I, § 22, of the
South Carolina Constitution. Stono River Envtl. Protection Ass'n v. South Carolina Dep't. of
Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
“Administrative agencies are required to meet minimum standards of due process.
S.C. Const. Art. 1 § 3: Smith & Smith, Inc., v. S.C. Public Service Commission,
271 S.C. 405, 247 S.E. 2d 677 (1978). Due process is flexible and calls for such
procedural protections as the particular situation demands. Morrisey v. Brewer,
408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 4884 (1972). In our view,
constitutional due process provisions, apart from the APA, are sufficient to confer
the rights to notice and for an opportunity to be heard. “No person shall be finally
bound by a judicial or quasi judicial decision of an administrative agency affecting
private rights except on due notice and an opportunity to be heard . . . and he shall
have in all such instances the right to judicial review. S. C. Const., Art. 1, Section
22.” Id. at 92, 341.
Furthermore, “The requirements of due process include notice, an opportunity to be heard in a
meaningful way and judicial review,” Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505
S.E. 598 (Ct. App. 1998), citing Stono River, supra and S.C. Const. Art 1, § 22. (emphasis
added.) DHEC did not provide an opportunity for the Corleys or their neighbors to be heard at
all, much less in a meaningful way.
DHEC’s Joy Shealy acknowledged that the Corleys were identified as adjacent property
owners, along with their address, on the tax map list which was a part of the permit application.
Their names and address were “reasonably ascertainable,” yet no actual notice was provided by
DHEC to the Corleys of the Hare application.
The record here establishes that DHEC failed to provide even the minimal notice required
by its own permitting regulations. As the record establishes, the DHEC Notice of Intent form
fails to provide any significant information as to the size or location of the proposed facility on
the basis of which one could evaluate the threat to one’s interests. In addition, as reflected in the
testimony here, the dismissive characterization by Mr. Hare of his plans and indefinite time table
lulled Mr. Corley into the false understanding that no permit application might ever be made.
Similarly, the notice form posted by DHEC’s district staff contained no information on the
specific location of the proposed barns and described the facility size only in extremely vague
technical terms. Again, the reader is provided inadequate information regarding the impact on
his interests.
In addition to these formal weaknesses, DHEC failed to meet the posting requirements of
its regulation.
R. 61-43.200.60A provides:
The Department shall also post up to four notices on the perimeter of the property
or in close proximity to the property, in visible locations as determined by the
Department. (Emphasis supplied.)
The undisputed testimony of Robert Corley establishes that none of the locations posted by the
DHEC Staff were either on the perimeter of or in close proximity to the subject property. All
were at some distance from the site; one was posted almost three miles away. In addition the
only notice ‘seen’ by Mr. Corley was so far from the public road that it was not ‘visible’ as
required, and was mistaken for a notice regarding the expansion of another poultry facility.
The fact that different notices for various proposed locations were printed on plain white
paper with standard type and were serially posted on the same utility pole off the highway does
not conform with the DHEC regulation. This posting did not constitute public notice.
The consequences of this inadequate notice were significant. No comments or objections
were received by DHEC within the comment period and no public meeting was held in the
community, leading Ms. Shealy to conclude that there were no objections to the proposed
facility. Once Mr. Corley became aware of the application, he quickly obtained 38 signatures of
neighbors, even during a short time frame over the holidays, objecting to the Hare permit on
environmental grounds.
As Ms. Shealy acknowledged, had this petition been received earlier, DHEC would have
conducted a public meeting in the community, at which specific details of the permit would have
been disclosed--including maps of the barn locations--and public comments and objections
solicited. DHEC, in turn, would have considered all such comments and objections in making its
permit decision. R. 61-43.200.60(D), (E), (F), (G). DHEC’s technical review of the Hare permit
application was seriously deficient because of its failure to obtain and consider public objections
to the proposed facility. DHEC’s failure to comply with the posting requirements of its
permitting regulation requires remand of this permit decision.
2. TECHNICAL REVIEW
DHEC’S failure to conduct the technical review required by R. 61-43 likewise compels
reversal of the Hare permit decision. As previously cited, DHEC’s Animal Agricultural
Permitting Regulations require the DHEC staff to evaluate enumerated factors in considering the
proposed site for an animal production facility. R. 61-43. 200.70(F). In addition, DHEC is
mandated to protect against increased air and water pollution in permitting new or expanded
animal production facilities. R.61-43.200.70(E). Because DHEC failed to consider the
enumerated mandatory factors in its siting evaluation, the matter must be remanded.
The testimony of DHEC’s permit reviewer Joy Shealy evidences numerous changes
during DHEC’s technical review of the Hare application. The permit application was originally
for twelve barns. The only DHEC staff who visited the proposed site erroneously approved the
site for all twelve barns, even though the required 400 foot setbacks from adjoining property
could not be achieved at the site. Ms. Shealy, who never visited the site herself, performed the
remaining technical review of the application and approved the permit for five barns only 200
feet from the Corley property line and spring. Although the permit application was adjusted
several times from twelve to nine to five barns, no new application or even new applicant
signatures were obtained for the revisions. Ms. Shealy, or someone else unknown to her, simply
crossed out the old entries and penciled in the new information. No new public notice or notice
to adjacent property owners--including the Corleys--was provided despite the change that moved
the barns 200 feet closer to the Corley property line. Ms. Shealy did not know how far the barns
were from the downgradient stream or the Corley property line or residence. No survey or field
measurements were required. She testified she probably estimated the distance using a ruler on
the tax map, but made no record of the results. Ms. Shealy did not consider soil type to play a
significant role in setback consideration for this permit although the highly erosive soils on the
grade between the barns and the Corley spring make runoff of stormwater and poultry waste
more likely. In the permit review, Ms. Shealy did not look at any planned land use of adjacent
properties in considering setbacks, but only considered the residences.
In Ms. Shealy’s view, because the Hare poultry facility was deemed a ‘no-discharge’ farm
with almost no potential for discharge, the requirement of the regulation to consider proximity to
other known point source discharges and potential non-point discharges might not be applicable.
Despite the location of some sixteen existing poultry facilities and one dairy facility within a five
mile radius of the proposed Hare site and the nearby waters of Lake Murray, Pet. Ex. 1, DHEC
made no evaluation of the proximity of the proposed facility to these other known “potential
nonpoint sources” of animal waste water pollution, contrary to DHEC regulation R.61-43.200.70(F)(6). Nor did DHEC perform the mandatory evaluation of the “(C)lassification or
impairment of adjacent waters,” as required by R.61-43.200.70(F)(4), reasoning that Lake
Murray was simply too far away, and that the Hare facility was presumed to be ‘no discharge.’
The record establishes the close connection between the proposed site and the waters of the Lake
by direct stream flow of only about 2 miles.
DHEC must comply with the mandatory considerations enumerated in its own
regulations. Where DHEC regulation R.61-43.200.70(F) states that DHEC “shall” evaluate
specified factors, it is error for it to fail to do so. DHEC must abide by its own standards and
may not act arbitrarily in failing to follow its own guidelines and requirements. See, 330
Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538, 540 (S.C.
App. 1992); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.
2d 531, 533 (S.C. 1987); S.C. Code Section 1-23-380(A)(6)(f). Moreover, adherence to its own
regulations in the consideration of permit applications is the cornerstone of reasoned
decisionmaking. “A decision is arbitrary if it is without a rational basis, is based alone on one’s
will and not upon any course of reasoning and exercise of judgement, is made at pleasure,
without adequate determining principles, or is governed by no fixed rules or standards.” Deese v.
South Carolina State Board of Dentistry, 332 S.E.2d 539 at 541, 286 S.C. 182 (S.C.App. 1985).
The ASAE, American Society of Agricultural Engineers, recommends a minimum
setback of animal production facilities from neighboring residences of at least one quarter mile
and a mile from more concentrated residential areas. The Corley residence will be less than the
1/4 mile setback from the Hare poultry barns recommended by the ASAE. On the face of this
undisputed evidence that the Hare poultry will, by design, discharge air pollution into the
environment only 200 feet from the Corley property and 1000 feet from the Corley home, DHEC
can not establish that it has complied with the regulatory mandate to prevent an increase in air
pollution as required by R.61-43.200.70(E):
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.
The evidence establishes, to the contrary, that the Hare permit- with absolutely no air pollution
control and a site too close to the Corleys- will inevitably cause an increase in air pollution. For
this reason as well the Hare poultry permit must be remanded.
CONCLUSIONS OF LAW
1. By a preponderance of the reliable and probative evidence on the whole record I conclude
that the Petitioners have established that the review of the proposed Hare Poultry Facility permit,
No. 18,757-AG was inadequate.
2. I conclude that the Department has failed to provide Petitioners constitutionally adequate
notice and opportunity to be heard. Stono River Envtl. Protection Ass'n v. South Carolina Dep't.
of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).
3. I conclude that the Department has failed to meet the posting requirements of regulation
R. 61-43.200.60A based on its failure to post notices of the application and opportunity to object
on the perimeter of the property or in close proximity to the property, in visible locations.
4. I conclude that the Department has failed to conduct an adequate technical review of the
Hare permit application and, in particular, has failed to evaluate the factors enumerated in
regulation R.61-43.200.70(F) or to assure that the facility will not increase air pollution as
designed contrary to regulation R.61-43.200.70(E).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, I remand the proposed
State Animal Feeding Operation Permit No. 18,757-AG, dated December 11, 2002, for the
construction and operation of five (5) broiler houses to John and Lois Hare in Saluda County,
South Carolina, to DHEC for further review and notice consistent with this order.
IT IS SO ORDERED.
Carolyn C. Matthews,
Administrative Law Judge
April 22, 2004
Columbia, SC |
