SC Administrative Law Court Decisions

This matter is a contested case hearing challenging the decision of the South Carolina Department of Health and Environmental Control (DHEC) to grant Construction Permit # 18,566-AG to Respondent, T. R. Blitch of Blitch Poultry Farm, for construction of four broiler houses in Orangeburg County. After notice to the parties, a hearing was conducted on September 11, 2000 at the Administrative Law Judge Division (ALJD) pursuant to S.C. Code Ann. §§ 1-23-310 and 1-23-600(B) (Supp. 1999). Based upon the evidence presented, the permit must be granted.

The issue here is whether the applicable regulations and statutes allow the issuance of a permit to construct four broiler houses in the Holly Hill community of Orangeburg County.

1. Positions of Parties

The residents of the area oppose the application for several reasons. They argue the broiler houses are too close to their homes; odor, dust, and flies will not only create a health hazard for area residents but also will interfere with daily living; nearby wells will likely be contaminated; the soil in the immediate area of the broiler houses is poorly drained; a nearby drainage ditch will carry contaminants; and the broiler houses will reduce the property values of nearby homes.

DHEC disagrees with the residents. Rather, DHEC argues the permit must be granted since all of the applicable regulations and statutes were complied with and thus leave no basis for denying the application. Blitch agrees with DHEC and argues the permit must be granted.

2. Findings of Fact

I find by a preponderance of the evidence the following facts:

a. General Facts

The general area in which the proposed broiler operation will be situated is an agricultural area. Consistent with the agricultural use of the area, no local zoning and no land use requirements prohibit the broiler houses.

The Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) prepared a Waste Management Plan for Respondent on August 17, 1999. That plan was subsequently revised on March 20, 2000. The plan as ultimately submitted met all of the requirements established by DHEC. Accordingly, on May 30, 2000, DHEC issued Construction Permit 18,566-AG to T. R. Blitch allowing the construction of four broiler houses in a rural, unincorporated area of Orangeburg County near Holly Hill. However, the permit was issued with 27 special conditions imposed.

Under the permit, the facility to be constructed will consist of four broiler houses to accommodate 28,000 birds per house with an estimated six flocks per year. Thus, the facility will produce 672,000 birds per year (4 x 28,000 x 6). The average weight of 3.3 pounds per bird produces an average live weight at any one time of 369,600 pounds (4 x 28,000 x 3.3).

The broilers will be raised completely within enclosed houses and will produce waste in the form of dry litter consisting of bedding and chicken manure. The waste produced in one year will be approximately 683 tons. The waste will be removed from the grow-out houses at least once a year and will be spread on designated fields. Under the plan, litter removed from a grow-out house must be either immediately land-applied as fertilizer or stored on site, with certain restrictions, for future land application. The plan specifies that 130.6 acres of land will be required to utilize the manure and identifies 229.2 acres available for the land application of litter and waste from the facility.

b. Proximity to Homes

Up to forty residences are in the immediate vicinity. Further, at least twenty-five parcels of property are within 1,000 feet of the proposed location of the four broiler houses. Under such facts, the residents argue the broiler houses are simply too close.

The normal production of animals by Respondent at any time will be less than 1,200,000 pounds of live weight and no broiler house will be closer than 200 feet from the property line of another property owner.

c. Drainage, Ditch, and Wells

The area near the broiler houses is poorly drained. However, the broiler houses are self-contained and do not present any drainage from the houses to the surrounding area. The only drainage is run-off of rain water from the houses. That water is from the roof of each building and thus does not come in contact with the interior of the broiler houses.

A ditch is on the property. However, the ditch does not provide any contact with the broiler houses. Further, no contaminants are in use on the property which have any contact with the ditch. Finally, the ditch is at a distance of greater than 50 feet from the broiler houses.

Wells are in use in the community. However, the operation of the broiler houses do not present any contact with wells in the area. Here, no broiler house is within 200 feet of a public or private drinking water well.

d. Health and Daily Living

Area residents have existing health concerns. Several residents suffer from asthma and have other breathing difficulties. At least one resident has an eye problem associated with chronic irritation, another resident has a skin condition, and several residents have allergies and related sinus problems.

DHEC considered the health concerns of the existing residents. Available medical records were reviewed by a physician at DHEC's request and in the opinion of the physician, the presence of the broiler houses would not create an environment that would exacerbate any existing medical conditions. In addition, DHEC performed an air quality study. The study establishes that the "particulate matter standard would not be violated by the [broiler] facility."

DHEC imposed numerous limitations on Respondent's permit to minimize the impact upon daily living of nearby residents. Those limitations impose mandatory measures to control, minimize and to abate potential nuisances from flies, pests, dust, and odor.

For example, DHEC placed twenty-seven special conditions on Respondent's permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent harmful discharges into the environment. A few of these conditions are that (1) the manure cannot be stored on-site prior to land application for more than three days unless the manure is stockpiled on a concrete pad or other acceptable means and covered by black plastic; (2) manure should be land-applied only when weather and soil conditions are favorable and when prevailing winds are blowing away from nearby opposite dwellings; (3) good sanitation should be practiced and leaking waterers should be repaired to reduce fly problems; (4) wastes wet enough to cause fly or other problems will be removed from the houses; (5) dead chickens must be disposed of by incineration; and (6) cleanup is required of any spillage occurring during transport of the waste.

In addition to the special conditions, DHEC has inspection authority. That authority includes routine inspections to ensure compliance with the permit, and, in response to complaints, DHEC has the authority to require immediate abatement of nuisance conditions.

Moreover, implicit in the permit is the restriction that DHEC may require additional remedial practices if DHEC later determines that the operation is producing undesirable levels of odor. Regs. 61-43.200.150. Also, DHEC has authority to abate public nuisances under Regs. 61-46. Finally, if the operation of Respondent's facility proves to be a nuisance, per accidens (business or occupation which becomes a nuisance by reason of circumstances, location, surroundings, or manner in which it is conducted), the residents may have legal recourse in a court of equity to adjudicate such a cause of action.

3. Conclusions of Law

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

a. Introduction

DHEC's general responsibilities encompass protection of human health and the environment but particular duties include the safe means for handling and disposing of animal wastes. See South Carolina Pollution Control Act, S.C. Code Ann. Secs. 48-1-10 et seq. (Rev. 1987 and Supp. 1999). Consistent with that responsibility, DHEC is charged with the duty of deciding if a permit should be issued to a party who will generate, handle, store, treat, process, or land apply animal waste. See S.C. Code Ann. Regs. § 61-43, 200.30.A. Since Respondent's proposed plan for four chicken houses involves animal waste that will be generated, handled, stored, treated, processed, and land applied, Respondent was required to file an application for a permit. This controversy has arisen since DHEC granted the permit over the objections of nearby residents.

While not delineated as such, the residents challenge DHEC's decision as being based on an inadequate review of the application. Specifically, the residents raise three primary objections.

First, the Waste Management Plan is inadequate since it allows broiler houses too close to homes of the residents and the presence of these broiler houses will reduce the property values of their homes. Second, the residents argue the application fails to include a Ground Water Monitoring Plan. They argue such is needed since the soil in the immediate area of the broiler houses is poorly drained, a nearby drainage ditch is likely to carry contaminants, and nearby wells are likely to become contaminated. Finally, the residents argue the Odor Abatement Plan and Vector Abatement Plan are both inadequate since odor, dust, and flies will create a health hazard and interfere with daily living. Each argument is addressed below.

b. Waste Management Plan

The argument that the Waste Management Plan is inadequate since it allows broiler houses too close to homes and will reduce property values requires an examination of the requirements related to the proximity of houses and DHEC's duty to consider property values.

i. Proximity to Houses

Up to forty residences are in the immediate vicinity. Further, at least twenty-five parcels of property are within 1,000 feet of the proposed location of the four broiler houses. Under such facts, the residents argue the broiler houses are simply too close.

However, under existing regulations, the proximity is not prohibited. Rather, here the normal production of animals by Respondent at any time will be less than 1,200,000 pounds of live weight. Accordingly, S.C. Code Ann. Regs. § 61.43 allows the broiler houses to be as close as 200 feet from the property line of another property owner. S.C. Code Ann. Regs. § 61.43, 200.80.A.5.

Here, all properties are at least 200 feet from the four houses. Further, no persuasive factors dictate that the broiler houses should be further than the distance set by regulation. Accordingly, proximity to surrounding properties is not a valid basis for denying the permit.

ii. Property Values

Certainly, no one doubts that the land use in an area can impact the value of adjacent property either in a postive manner (see Long Cove Home Owners' Ass'n, Inc. v. Beaufort County Tax Equalization Bd., 327 S.C. 135, 488 S.E.2d 857 (1997) ("It is apparent that property adjoining or in close proximity to a body of water, a park, golf course or other scenic view may well have an increased value because of its location.") or in a negative manner (see Strawn v. Canuso, 140 N.J. 43, 657 A.2d 420 (N.J.1995) ("a landfill may cause diminution in the fair market value of real property located nearby."). However, well understood valuation principles are of no assistance in this case. Rather, the impact upon property values is not a factor upon which DHEC can rely in deciding whether to grant or deny the permit requested in this case.

While DHEC holds broad authority in the areas of health and maintaining the integrity of the environment, for the permit here under review, the General Assembly has not charged DHEC with the responsibility of establishing the impact upon value to nearby property. See S.C. Code Ann. Sec. 48-1-20 (Rev. 1987); cf. Reg. 30-11(B)(10) (where the General Assembly by specific regulation directed a division of DHEC to determine "[t]he extent to which the proposed use could affect the value and enjoyment of adjacent owners."). Had the General Assembly intended DHEC to consider valuation as a basis for the permit here under review, such direction could have been provided. Rather, the General Assembly chose to exclude land use considerations from its permitting process for animal facilities.

"The location of animal facilities and waste utilization areas as they relate to zoning in an area is not covered in [the] regulation. Local county or municipal governments may have zoning requirements and these regulations neither interfere with nor restrict such zoning requirements." Regs. 61-43.200.10(A)(5).

As this regulation suggests, local zoning authorities hold the primary responsibility for land use decisions and those authorities exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). Accordingly, DHEC cannot deny the current permit based on the loss of value that adjacent property may absorb if the permit is granted.

c. Lack of Ground Water Monitoring Plan.

The residents argue that the application is inadequate since it does not include a Ground Water Monitoring Plan. They argue such a plan is needed since the soil in the immediate area of the broiler houses is poorly drained, a nearby drainage ditch is likely to carry contaminants, and nearby wells are likely to become contaminated.

Here, the evidence confirms that the area near the broiler houses is poorly drained. However, the evidence further establishes that the broiler houses are self-contained and do not present any drainage from the houses to the surrounding area. Indeed, the only run-off of water from the houses is that of rain water from the roof of each building. Rain water does not come in contact with the interior of the broiler houses and thus does not present a significant concern to contaminating the surrounding ground or ground water. Therefore the poor drainage of the soil near the houses is not a sufficient reason to deny the permit.

In addition, the residents are concerned that a nearby drainage ditch is likely to carry contaminants. Again, as with the poorly drained soil, while a ditch is on the property, no persuasive evidence establishes a means of contact between the ditch and any contaminants. Moreover, the controlling regulation allows the construction of the broiler houses near a ditch as long as a minimum separation distance of 50 feet exists between the two. That 50 feet distance is satisfied in this case.

Finally, the residents argue the permit is improper since nearby wells are likely to become contaminated. Just as with the poorly drained soil and the existence of the ditch, while wells are in the community, no persuasive evidence establishes a means by which the operation of the broiler houses will present any contact with wells in the area. In fact, the limitation on the presence of wells is that the houses must be beyond 200 feet from a public or private drinking water well (excluding the applicant's well). That test is satisfied in this case.

Thus, considering all of the evidence and the arguments, DHEC is not required to mandate that Respondent establish a Groundwater Plan. Further, DHEC has no basis to deny the permit based on the soil in the immediate area of the broiler houses being poorly drained or on the presence of a nearby drainage ditch or nearby wells.

d. Odor Abatement Plan and Vector Abatement Plan

Finally, the residents argue that the Odor Abatement Plan and Vector Abatement Plan are both inadequate since odor, dust, and flies will create a health hazard and interfere with daily living.

i. Health Hazard

Area residents have existing health concerns. Several residents, both adults as well as children, suffer from asthma and have other breathing difficulties. At least one resident has an eye problem associated with chronic irritation, another resident has a skin condition, and several residents have allergies and related sinus problems.

Given the existing medical conditions, the issue is whether the broiler houses will create a health risk to a degree warranting denial of the permit. Under the facts of this case, the permit cannot be denied.

DHEC's examination gave consideration to health concerns of the existing residents. In fact, available medical records were reviewed by a physician at DHEC's request and that same physician testified at the hearing in this matter. Indeed, the only testimony from a medical professional in this hearing was that testimony presented by DHEC. In the opinion of the physician, the presence of the broiler houses would not create an environment that would exacerbate any existing medical conditions.

Further, the physician's conclusion is supported by an air quality study performed by DHEC. The study establishes that the "particulate matter standard would not be violated by the [broiler] facility." Thus, given the air quality study and the corroborating physician testimony, the presence of the broiler houses cannot be said to produce a health concern to existing residents of a degree that warrants denying the permit.

ii. Daily Living

The residents assert odor, dust, and flies will be of such a magnitude that daily living will be significantly impaired. Again, under the evidence established, the permit cannot be denied due to odor, dust, and flies.

Here, the evidence establishes a minimum impact upon the daily living of residents in the area since DHEC imposed numerous limitations on Respondent's permit. Those limitations impose mandatory measures to control, minimize and to abate potential nuisances from flies, pests, dust, and odor.

For example, DHEC placed 27 special conditions on Respondent's permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent harmful discharges into the environment. A few of these conditions are that (1) the manure cannot be stored on-site prior to land application for more than three days unless the manure is stockpiled on a concrete pad or other acceptable means and covered by black plastic; (2) manure should be land-applied only when weather and soil conditions are favorable and when prevailing winds are blowing away from nearby opposite dwellings; (3) good sanitation should be practiced and leaking waterers should be repaired to reduce fly problems; (4) wastes wet enough to cause fly or other problems will be removed from the houses; (5) dead chickens must be disposed of by incineration; and (6) cleanup is required of any spillage occurring during transport of the waste.

In addition to the special conditions, DHEC has inspection authority. That authority includes routine inspections to ensure compliance with the permit, and, in response to complaints, DHEC has the authority to require immediate abatement of nuisance conditions.

Moreover, implicit in the permit is the restriction that DHEC may require additional remedial practices if DHEC later determines that the operation is producing undesirable levels of odor. Regs. 61-43.200.150. Also, DHEC has authority to abate public nuisances under Regs. 61-46. Finally, if the operation of Respondent's facility proves to be a nuisance, per accidens (business or occupation which becomes a nuisance by reason of circumstances, location, surroundings, or manner in which it is conducted), the residents may have legal recourse in a court of equity to adjudicate such a cause.

Accordingly, under all of the facts and law established in this case, the residents have failed to show by a preponderance of the evidence that State Construction Permit #18,556-AG should not be issued. The permit was properly applied for by Respondent and properly reviewed by DHEC under all appropriate statutes and regulations.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

The South Carolina Department of Health and Environmental Control shall issue State Construction Permit #18,566-AG to T. R. Blitch for construction of a chicken broiler facility to be located in Orangeburg County.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 23, 2000

Columbia, South Carolina