SC Administrative Law Court Decisions

This contested case matter arises from the decision of the South Carolina Department of Health and Environmental Control ("DHEC") to grant a State Construction Permit, Permit

#17.753.AG, to Carroll's Foods, Inc. ("Carroll's") in order to construct a lagoon for a Farrow-to-Wean swine facility. Petitioner, Jenny B. Foley, an adjacent landowner, seeks denial of the permit. A hearing was conducted May 11, 1995, during which the parties presented testimony and introduced exhibits, all of which have been carefully reviewed and considered. The permit is granted.

On August 4, 1994, Carroll's filed an application and waste management plan with DHEC for a Farrow-to-Wean swine facility to be constructed in Dillon County, South Carolina. The site was inspected by DHEC and the Soil Conservation Service (SCS), and a waste management plan was developed for Carroll's by SCS. This application was reviewed by the DHEC Division of Water Pollution Control under the S.C. Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1994), 24 S.C. Code Ann. Regs. § 61-9 (Supp. 1994), and the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" (April 1985). Notification letters of the proposed construction were sent to all landowners, including Petitioner Foley, whose property line fell within 1,000 feet of the facility proposed by Carroll's. In response to this letter, Petitioner submitted to DHEC an objection to the proposed construction. After consideration of Petitioner's objections, DHEC issued a state construction permit, #17.753-AG, to Carroll's on October 4, 1994. Petitioner was given notice by letter of DHEC's decision concerning this permit and Petitioner filed a request for a contested case hearing with DHEC. DHEC timely filed this case with the Administrative Law Judge Division, and a hearing on the merits was conducted on May 11, 1995.

The issuance of construction permits for swine facilities is governed by the S.C. Pollution Control Act ("PCA"), S.C. Code Ann. §§ 48-1-10, et seq. (Supp. 1994). Under the authority of §§ 48-1-30 and 48-1-100(B), DHEC promulgated Regulation 61-9 which establishes the permitting procedures for waste disposal system construction permits. DHEC also utilized "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina," in the site evaluation and permitting process.

Petitioner asserts a number of bases for denial of the permit. She asserts that the Construction Permit was unlawfully issued because the design and construction engineer who developed the waste management plan for Carroll's was not registered in the State of South Carolina, as required by the permit application and S.C. Code Ann. § 40-22-10 et seq.

(Supp. 1994). The waste management plan for Carroll's was developed by Gene Dobbins, a professional engineer and resource conservationist for the Soil Conservation Service.

Mr. Dobbins is not registered as a professional engineer in South Carolina. He is, however, as a federal agency engineer, exempt from the requirement that he be a registered Professional Engineer in South Carolina.

Petitioner also asserts that the location of the lagoon on the application differs from the location in the actual permit. Specifically, she argues that the lagoon is permitted to be built closer to her property line than what was requested in the permit and that it is unlawful for DHEC to permit something that was not requested by the applicant. According to the testimony of

Henry Gibson, Agricultural Consultant for DHEC, and Mr. Dobbins, the surveyed drawing in the

waste management plan depicts the pad and lagoon where they are actually located, and that drawing is what was relied on by DHEC when issuing the permit.

Petitioner asserts the lagoon should not be located as close to her property as permitted. Petitioner also asserts that the location of the lagoon uphill from her property would increase the risk of damage to her property from spills. Don Butler of Carroll's Foods testified that the lagoon was sited where it was to take advantage of soil conditions, as well as placing it as far as possible from inhabited dwellings. The type and location of clay on the property which is to be used as a liner for the lagoon was a factor in siting. According to the waste management plan, this liner will be constructed from clay which is already present on Carroll's property. Both Mr. Dobbins and Mr. Gibson testified that the clay on this property is suitable for use as a liner. No evidence to the contrary was offered.

Finally, Petitioner claims the construction permit should be denied because the operation of the facility would increase flies and odors in the area, lessening the value of her farm property.

By a preponderance of the evidence, I find the following facts:

(1) On August 4, 1994, Carroll's filed with DHEC an application and a waste management plan for a permit to construct a wastewater treatment system for a Farrow-to-Wean swine facility.

(2) The waste management plan for Carroll's was developed by Gene Dobbins, a professional engineer for the Soil Conservation Service, an agency of the federal government.

(3) The DHEC Department of Water Pollution Control deemed the application complete and reviewed the construction permit application and waste management plan under the appropriate DHEC statutes and guidelines.

(4) All adjacent property owners, including Petitioner Foley, whose property line falls within 1,000 feet of the proposed facility were notified by letter of the proposed construction.

(5) Each landowner contacted was asked to submit a "no contest" letter to the Department.

(6) In response to the "no contest" letter, Petitioner filed an objection to the proposed permit with DHEC.

(7) After consideration of Foley's objections, DHEC issued Construction Permit

#17.753-AG on October 4, 1994.

(8) The Construction Permit contains twenty-three (23) special conditions designed to ensure proper operation of the waste management facility.

(9) The location of the lagoon in the final permit is not situated differently than the location indicated in the permittee's application, in that the application was submitted with a surveyed drawing depicting the location of the pad and lagoon and the permit was issued based upon the surveyed drawing.

(10) The composition and location of the clay to be used as a liner for the lagoon are suitable for the intended use.

(11) The inhabited dwelling in closest proximity to the lagoon is approximately four thousand feet (4,000') from the lagoon.

(12) Petitioner's property is farmland which does not include an inhabited dwelling upon it.

(13) The location of the lagoon, while close to Petitioner's property line, was specifically chosen based on a number of factors, particularly soil conditions and distance from neighboring inhabited dwellings, and is not impermissibly close to Petitioner's property.

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

(1) This Court has jurisdiction in this case pursuant to S.C. Code Ann. § 1-23-600(E) (Supp. 1994).

(2) The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. National Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

(3) The issuance of construction permits for swine facilities is governed by the S.C. Pollution Control Act ("PCA"), S.C. Code Ann. §§ 48-1-10, et seq. (Supp. 1994). Under the PCA, it is unlawful for any person to dispose of wastes into the environment of this State except as in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90 (Rev. 1987).

(4) The S.C. Pollution Control Act, S.C. Code Ann. §§ 48-1-10, et seq. (Supp. 1994), requires that a permit be acquired before disposing of the waste generated by the facility into the lagoon.

(5) S.C. Code Ann. § 48-1-100 (Supp. 1994) provides:

A person affected by the provisions of this chapter or the rules and
regulations adopted by the department [who desire to dispose of waste
into the environment of this State] first shall make an application to the
Department for a permit to construct and a permit to discharge from the
outlet or source. If, after appropriate public comment procedures, as
defined in departmental regulations, the department finds that the
discharge from the proposed outlet or source will not be in contravention
of the provisions of this chapter, a permit to construct and a permit to
discharge must be issued to the applicant.

(6) In accordance with §§ 48-1-30 and 48-1-100(B), DHEC promulgated 24 S.C. Code Ann. Regs 61-9 (Supp. 1994) and issued the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina."

(7) 24 S.C. Code Ann. Regs. 61-9 (Supp. 1994) and the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" provide for the application and permitting procedures, criteria, and standards for a state construction permit.

(8) S.C. Code Ann. § 40-22-460 (Supp. 1994) exempts certain classes of engineers from registration. Specifically, "this chapter may not be construed to prevent or to affect the practice of officers and employees of the government of the United States while engaged within this State in this practice of engineering or land surveying for the government." Because the SCS is a federal agency, under S.C. Code Ann. § 40-22-460, Mr. Dobbins is exempt from registration as a Professional Engineer in South Carolina. Consequently, the waste management plan prepared for Carroll's Foods is lawfully signed by a professional engineer.

(9) Other issues potentially raised by Petitioner, such as public nuisance and trespass, even if ripe for adjudication, are not properly before me. Additionally, the Special Conditions contained in the Permit give Petitioner considerable protection in that they, among other things, require that any nuisance may require additional controls, that ground water monitors may be required, and that the facility be properly operated so as to prevent discharges into the environment. If, in the future, Petitioner is harmed by the operation of the facility, she has adequate remedies in the Court of Common Pleas.

(10) Pursuant to ALJD Rule 29(B), all issues raised in these proceedings not expressly addressed in this Order are deemed denied.

(11) Petitioner has failed to show by a preponderance of the evidence that the State Construction permit #17.753-AG should not be issued. The construction permit was properly submitted by Carroll's Foods and reviewed by DHEC under all appropriate statutes and guidelines, and the waste management plan is in accord with all existing rules and regulations of the Soil Conservation Service.

IT IS HEREBY ORDERED, that Construction Permit #17.753-AG be issued as written to Carroll's Foods for a Farrow-to-Wean swine facility and that the stay of the Construction Permit be vacated.

___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE

June ____, 1995
Columbia, South Carolina