ORDERS:
ORDER AND DECISION
This matter comes before me on separate Motions filed by the Petitioners for Summary
Judgment. A motion hearing was conducted on March 29, 1995. After considering the information
submitted and the legal arguments, the motion for summary judgment is GRANTED.
BACKGROUND
This case involves the transfer of a Permit to Construct issued by the Department of Health
and Environmental Control (DHEC) for a hog farm in Orangeburg County. The farm was originally
owned and operated by C & S Farms since 1977. In 1982, C & S Farms divided the property and
sold 54 acres to Robert and Billy Powell. The remaining 27 acres was sold to Margaret Furtick. At
the time of the sale to Powell, there were two lagoons on the property for the discharge of waste
water related to the operation of the farm. Mr. Powell was informed that all of the property relating
to the operation of the farm was being purchased by him including the property on which the large
lagoon was located.
On February 25, 1982 a preliminary site inspection was performed by DHEC to discuss
Powell's proposed no-discharge waste water system for subsequent operation of the hog farm. In
March, 1982, Powell was notified that the site was satisfactory and was authorized to proceed with
the planning and design of his system. At that time, Powell was required to submit a Waste
Management Plan prepared by a licensed engineer or the U.S. Department of Agriculture, Soil
Conservation Service. In addition, Powell was informed that he would be required to secure
easements from property owners located within a certain distance from his property. He submitted
a form signed by Margaret Furtick and dated March 27, 1982 stating that she was "aware that a
disposal lagoon for hogs or cattle will be constructed on the property of Robert C. & Billy M. Powell
which is within 1,000 feet of my property line. I have no objection to this." Powell was also required
to erect fences enclosing the facility and to display signs warning outsiders of the possible danger.
Powell submitted his application for a Permit to Construct and a waste management plan
("Powell Plan") prepared by the Soil Conservation Service covering the "collection and disposal of
waste from 36 sows and litters, 290 pigs in a nursery, and 400 feeder hogs." The waste management
system was existing pursuant to a plan written for C & S Farms. The Powell Plan states, "the lagoons
have been built except for the spoil shaping, seeding, pipe installation, and fencing. The small lagoon
will be closed and the waste from this house will go to the large lagoon. The waste will be washed
into the lagoon through a minimum 8-inch pipe to help prevent blockage in the pipe. Clean out pits
should be placed along the pipe for ease of waste removal should the pipe become plugged...." The
Powell Plan also included the specifications to modify the large lagoon and the plan for establishing
vegetation.
DHEC issued a Construction Permit (Permit No. 8581) to Robert Powell on May 6, 1982.
The permit supersedes the construction permit issued to C & S Farms and specifically provided,
"unless construction is initiated prior to August 1, 1982, it will be necessary to reapply since this
permit will no longer be valid." By the time the permit had been issued, Powell had purchased the
required pipe for installation. He also began the work of cleaning the waste out the houses and the
pits. Heavy equipment was rented to dig holes, remove pipe, and to fill in the drainage ditch leading
to the large lagoon. Powell also removed damaged fencing, weeds and other grasses to clean the
area.
Over the next two years, Powell continued to perform work, mostly on the weekends, to
remove old pipe, clean the waste from the houses, spread it, and cover the main ditch which lead to
the main lagoon. The pits were also closed. Once the buildings were cleaned no animals were kept
in them. Powell had some pigs which he kept in the house from which the waste water fed to the
small lagoon. Powell was able to install about 20 feet of pipe. The perimeter fence was never
installed nor were the warning signs. The modification of the large lagoon was never completed and
the small lagoon was never closed. Construction of the waste management plan was never
completed. Powell has never operated the facility as a hog farm and therefore, never implemented
the waste management plan which formed the basis for the permit.
In August 1984, DHEC inspected the facility. At that time the requirements of the
construction permit had not been satisfied and Powell did not have any hogs. The following notation
was made on August 28, 1984, "This facility is not in operation at this time. There are no swine on
site. The property is up for sale. Place in inactive status." Facility information is placed in the
inactive file if construction is not going to take place. Nothing further was done until February 1993
when Powell sold the property to Richard D. and Margaret F. Fogle.
On June 10, 1993, Richard Fogle submitted an application to DHEC for a permit to construct
a no discharge waste management system to collect waste water from 36 sows and litters, 350 feeder
pigs, and 1000 growers on the property called Hide-A-Way Farm. The plan prepared by the Soil
Conservation Service consists of "2 waste treatment lagoons and land application of waste.... The
present waste management system was designed for C & S Farms with Permit Number 4949, Issued,
October 27, 1977. The two lagoons presently exist. Modifications necessary for the system to
function properly, operation and maintenance of the system and land application of the waste will be
covered in the waste management plan." The plan then describes the specifications for each lagoon,
land application of the waste and the vegetation plan. The lagoons were also required to be fenced
and warning signs erected. There were no easements by neighboring property owners consenting to
the swine operation attached to the application.
At about the same time, Margaret Furtick sold her adjoining 27 acres to Fogle's, Inc. In an
affidavit, Mrs. Furtick stated that she had been contacted about consenting again to the location of
the swine operation on the adjoining property. She refused to consent to this operation because she
was selling her property and thought the consent would hinder the sale. On or about June 8, 1993,
Mrs. Furtick sold the 27 acres to Fogle's, Inc.
Subsequently, a new application was submitted for a no discharge waste management system
in the name of Richard Fogle. This application was submitted on October 19, 1993. The swine waste
management system prepared by the Soil Conservation Service again addressed the system for the
same number of swine and the two lagoons. In this plan, however, one lagoon would be enlarged and
the other lagoon would be closed. Again the plan addressed the specifications for the enlargement
of one lagoon, land application of the waste, and the vegetation plan. Fences and signs were required
to be erected. Once again, there were no easements by neighboring property owners consenting to
the swine operation attached to the application.
On January 5, 1994, DHEC issued a Permit to Construct (Permit No. 17,595-AG) to Richard
D. Fogle. The permit states, "This permit supersedes construction permit #8581 dated 5/6/82." The
project is described as "Enlargement of lagoon 1 and conversion to a waste storage pond with 180
day storage capacity." Other descriptions of the project were based upon the waste management plan
submitted in October 1993. By its terms, "unless the waste management plan is implemented prior
to June 30, 1994 and completed prior to January 4, 1995, it will be necessary to reapply since this
permit will no longer be valid."
Although not specifically expressed in the documents submitted, there were protests to the
permit issued to Richard Fogle. Subsequently, Powell agreed to transfer his permit to construct to
Fogle in consideration for Fogle's agreement to accept "responsibility, coverage and liability for
violations up to the date of transfer and thereafter." This agreement was executed May 2, 1994. On
June 1, 1994, Fogle made a formal request to DHEC to transfer to him the permit held by Powell.
A copy of the agreement between the parties was attached. Fogle also requested, if DHEC allowed
the transfer, that the application for Permit #17,595-AG be withdrawn without prejudice. On June
28, 1994, DHEC responded by allowing the transfer of the permit, stating that the permit was
modified for a name change only, pursuant to regulation. The change was not considered significant
by DHEC and therefore was not placed on public notice. In September and October 1994, the
petitioners learned of the transfer and filed protests with DHEC.
On September 15, 1994, Richard Fogle submitted an application for a permit to construct a
wastewater treatment or collection system. This application was to close the lagoon 38 feet by 100
feet. The close out plan submitted with the application states that "the plan is for the close out of the
small lagoon (38 feet by 100 feet) designed for Robert E. Powell, permit number 8581, dated May
6, 1982." Again no specific evidence was presented to demonstrate whether a permit was issued to
close out the lagoon, but representations to the Court are that one lagoon has been closed.
SUMMARY JUDGMENT
The Petitioners move for summary judgment on three grounds: (1) the permit to construct
issued to Powell on May 6, 1982 had expired; (2) the issuance of permit no. 17,595-AG to Richard
Fogle by its terms superseded the permit issued to Powell and therefore, there was no permit to
transfer; and (3) the permit required the use of a lagoon located on property partially owned by Fogle
and partially owned by another landowner, that lagoon could not be used without modifying it so that
it was on property wholly owned by Fogle, this modification would be a non-minor modification
which would require public notice and other procedural steps which had not been followed.
Additionally, Norman Fogle argues that the closing of a lagoon is a non-minor modification and a
process that requires public notice which had not been given.
Pursuant to Rule 56, SCRCP, "judgment sought shall be rendered ... if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." In deciding a Rule 56 motion, this Court must view the facts and
inferences therefrom in the light most favorable to the nonmoving party. In addition, it must be
shown that further inquiry into the facts is not needed to clarify the application of the law. Charleston Lumber Company, Inc. v. Miller Housing Corp., ___ S.C. ___, 458 S.E.2d 431 (Ct. App.
1995); Johnston v. Bowen, ___ S.C. ___, 437 S.E.2d 45 (1993). A party opposing a properly
supported motion for summary judgment may not rest on the mere allegations or denials of his
pleading, but must set forth or point to specific facts showing that there is a genuine issue of material
fact. The existence of a mere scintilla of evidence in support of the nonmoving party's position is not
sufficient to overcome a motion for summary judgment. Thomas v. Waters, ___ S.C. ___, 445
S.E.2d 659 (Ct. App. 1994).
The Petitioners rely upon several documents to support their positions, among these are the
depositions of Henry Gibson and Robert Powell and their exhibits, the affidavit of Margaret Fogle,
the documents and exhibits submitted during oral argument, and legal memoranda. The undisputed
facts determined from these documents are as stated above.
The Powell permit was issued in May 1982. At that time, 24 S.C. Code Ann. Regs. 61-9
(1976), provided for the issuance of state and NPDES permits to discharge wastes into the waters
of the State or to operate treatment works pursuant to the Pollution Control Act. A State permit is
a permit issued by DHEC to a proposed discharger for waste discharged into subsurface water, or
for the construction or operation of a treatment works from which no discharge occurs. 24 S.C. Code
Ann. Regs. 61-9 § 1(32). Treatment works includes any lagoon, constructed drainage ditch or
surface water intercepting ditch installed for the purpose of treating, neutralizing, stabilizing or
disposing of sewage, industrial waste or other wastes. 24 S.C. Code Ann. Regs. 61-9 § 16 discussed
duration of permits. It stated, "A State or NPDES permit issued pursuant to the State law and this
regulation shall have a fixed term which shall not exceed five years. A person who wishes to continue
to operate under such permit shall apply for re-issuance of a permit pursuant to Paragraph 17."
Paragraph 17 states, "At least 180 days prior to the expiration date of a State or an NPDES permit
issued by the Department pursuant to the State law and this regulation, a permittee who wishes to
continue to operate under such permits shall submit a written request to the Department for re-issuance." Under the Petitioners' theory, the permit expired in 1987 unless some action was taken
to renew the permit.
Respondents argue that the duration of permits applies only to permits to "operate" a facility
and not to a permit to construct. The testimony of Henry Gibson, the former manager of the
agricultural waste water section of DHEC, clearly reveals that the State permit to construct expired
after five years and required a timely application for re-issuance. Despite the clear language of the
regulation, DHEC did not require construction permits to be renewed and did not require agricultural
permits to be renewed. DHEC not only did not follow the regulations, it had no written policy
interpreting the regulations in this manner.
The regulation clearly states that a State permit, which includes a permit to construct, has a
fixed term which shall not exceed five years. "A person who wishes to continue to operate under
such permit [e.g. the State permit to construct] shall apply for re-issuance of a permit." Merriam
Webster's Collegiate Dictionary 10th ed. (1993) defines "operate" as "to perform a function". It is
clear that if a person is issued a permit and after five years wants to continue to perform a function
under that permit he must reapply.
The use of the word "operate" in this context is not a term of art. Regulation 61-9 does not
address in specific terms a "permit to operate". In fact use of the term "permit to operate" is a
misnomer. What the regulation permits is the discharge of wastes into the waters of the State. A
permit issued under the regulation is permitting the discharge under certain conditions. 24 S.C. Code
Ann. Regs. 61-9 § 2 (1976), "Permit Requirements for Dischargers" supports this interpretation.
Section 2(1) states in part that "a person operating or proposing to operate a treatment works from
which no discharge occurs, shall promptly make application for and obtain a valid State
Construction Permit. ..." (emphasis added). In order to operate a treatment works from which no
discharge occurs the person must obtain a state construction permit. The regulation requires only
the issuance of a State Construction Permit to operate the treatment works. In fact, DHEC does not
issue a "Permit to Operate". Upon completion of the construction, an inspection is performed. If the
construction fulfills the requirements of the plan and DHEC's inspection, a letter is sent allowing the
permittee to begin operation. The testimony of Henry Gibson, the former employee of the
Department, supports this characterization. His testimony is also unrefuted that construction permits
are state permits under the regulation and all state permits expire in five years. No request was
submitted 180 days before the expiration date of Powell's permit for re-issuance. Once expired the
permit could not be transferred to another person unless some action had been taken to renew the
permit. Since no action was taken the permit expired in May 1987.
Respondents also argue that the permit has an expiration date of August 1, 1982 if
construction is not begun before that time. They argue that the evidence establishes that construction
was begun before August 1, 1982 and therefore the permit did not expire. The permit states that
unless construction begins by August 1, 1982 it will be necessary to reapply since the permit will no
longer be valid. According to Respondents, Powell began construction prior to August 1, 1982.
Viewing the deposition testimony in the light most favorable to the Respondents, there is evidence
from which it could be inferred that construction under the permit began before August 1, 1982. The
August 1, 1982 date is a threshold by which construction must begin. It is not an expiration date.
The expiration date is clearly established by the regulation and is the time frame during which the
permit is valid.
Based upon the undisputed evidence viewed in the light most favorable to the Respondents
and the applicable regulation, the permit to construct expired within five years after its issuance.
Once it expired it could not be transferred to another person without extending its term. The
Petitioners are entitled to summary judgment as a matter of law and the transfer of the permit to
Richard Fogle is in error.
Having disposed of the motion for summary judgment on the first issue raised, it is not
necessary to consider the remaining arguments.
It is ORDERED, that the Petitioners' Motion for Summary Judgment regarding the transfer
of Permit No. 8581 to Richard Fogle is GRANTED. The Department shall withdraw the permit
issued to Richard Fogle.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
September _____, 1995
Columbia, South Carolina. |
