ORDERS:
ORDER AND DECISION
This matter is before me on the petition by William Rutledge objecting to a permit application
by William Rogers to construct a chicken broiler facility in Clarendon County. Mrs. Paz Scott moved
to intervene as a petitioner. The motion to intervene was granted without objection on April 11,
1995. After notice to the parties, the hearing was conducted on May 23 and 25, 1995. The issues
considered were the suitability of the property for a chicken broiler facility, and whether DHEC
properly granted the permit to construct a no discharge waste treatment facility for Rogers' broiler
facility.
FINDINGS OF FACT
I make the following findings of fact, considering the burden on the parties to establish their
cases by a preponderance of the evidence and taking into account the credibility of the witnesses:
1. The proposed location of the chicken broiler facility is a 40 acre tract owned by
William G. Rogers in the Wilson community near State Highway 521 in Manning, South Carolina.
2. The 40 acres owned by Rogers was purchased from Glen Costello, Sr. Costello
purchased 100 acres for the purpose of building a poultry farm. Part of the 100 acres contains
wetlands.
3. In May 1993, Rogers made a request for a preliminary site inspection by the
Department of Health and Environmental Control (DHEC). DHEC's District Facilities Evaluator
conducted an inspection of a 14 acre field to determine the suitability of the location for the proposed
project.
4. As a result of the inspection, Rogers was notified that the site was suitable for a
treatment system and given authority to proceed with the planning and design of the waste
management system and with his application for a permit to construct.
5. Rogers was also informed that he would be required to secure approval from certain
property owners whose property lines were located within 1000 feet of the proposed location of the
chicken houses.
6. Letters were written to two property owners located within 1000 feet of the proposed
site. In August 1993, William Rutledge and Leroy and Paz Scott, objected to the poultry farm. The
Scotts stated no reasons for their objections. Mr. Rutledge objected due to his plans to develop his
property for public recreational use, groundwater contamination, offensive odors, and insect
accumulation (specifically flies) that could result from the operation of a chicken broiler facility.
7. The letters written to nearby property owners were utilized as a means to provide
notice to the landowners of the proposed facility and for DHEC to consider and mitigate potential
problems with the construction and operation of an agricultural waste management system. The 1000
feet guideline may be affected by the terrain of the property where the facility will be located, water
courses, any buildings in the area, and zoning requirements.
8. Agricultural waste management facilities exist that have been issued permits and are
located less than 1000 feet from the property lines of nearby land owners.
9. When the waste management plan was being prepared by the U.S. Department of
Agriculture, Soil Conservation Service, the site of the proposed chicken houses was moved from the
14 acre field to a wooded area further south on the tract in an attempt to locate the houses further
away from the property lines of those objecting.
10. Rogers completed his application on November 8, 1993. Attached to his application
was a consent form signed by an adjoining landowner who did not object to the operation of the
poultry farm.
11. Included in the application is the Waste Management Plan prepared by the Soil
Conservation Service. This plan contains a conservation plan map which is an aerial view of the
property and shows the proposed location of the houses at the southern end of the 40 acres. Also
included is a location map that shows the houses located in the same area, south of the field on the
40 acre tract.
12. On January 14, 1994, DHEC determined that a Permit to Construct (Permit No.
17,615-AG) should be issued to Rogers. The permit allows the construction of four broiler houses
and the treatment of waste generated by 570,000 broilers. Special conditions attached to the permit
set forth requirements relating to the disposal of the waste and other sanitary conditions to abate
odors and flies.
13. The land to be purchased from Costello required the preparation of a plat because the
100 acres was being subdivided. Clarendon County would not approve the plat as drawn. The
boundaries had to be renegotiated and redefined to allow Rogers direct access to the highway.
Clarendon County also prohibited the location of any structures within 100 feet of a property line.
14. The location of the chicken houses, as proposed and as outlined in the permit drawn
by DHEC, was within 100 feet of Costello's property line. As a result, the houses had to be
relocated. To locate the houses away from Costello's property line and to keep them 1000 feet from
other nearby property owners who objected placed the houses directly in the wetlands.
15. Rogers explained this problem to DHEC. As a result, the site for the houses was
changed to the 14 acre field.
16. The waste management plan was not rewritten. A new plan was not required because
the waste management plan as written would continue to be applicable to the treatment of the waste
generated from the houses. The only change would be the location of the houses. The waste
management plan does not specify the location of the houses. The location is determined by the
owner or operator with the facilities site evaluator of DHEC.
17. DHEC did not require a new application to change the location of the houses and
allowed Rogers to proceed under the permit issued.
18. Because of the change in the location of the houses and the proximity of the houses
to an adjoining landowner, DHEC sent Rutledge a letter in January 1995 indicating that a permit to
construct had been issued to Rogers in January 1994. The letter provided notice of his right to appeal
the permitting decision.
19. Construction of the proposed chicken houses in the wetlands may require a permit
from the U.S. Army Corps of Engineers. If more than one acre of wetlands is disturbed, a permit
would be required. The permitting process for the alteration of wetlands is a lengthy one requiring
public notice and the involvement of many state and federal agencies.
20. If the permit were granted, Rogers would be required by the Soil Conservation Service
to mitigate any filling of wetlands by creating an equal share of wetlands elsewhere on the property.
In addition to seeking a permit from the Corps of Engineers, the process of filling or draining the
wetland area for its intended use is expensive.
21. DHEC did not consider the written protest of Mr. and Mrs. Scott because there were
no reasons stated for their objection. With respect to Mr. Rutledge, DHEC considered his objection
based upon the current use of his land and not upon any proposed use or development, which is
speculative. The property was zoned agricultural and there was no basis on which DHEC could
determine that the permit should not be issued.
22. If the system is operated as designed and permitted, it would not create a public
nuisance. The odors and fly infestation would be minimal. Odors occur when the birds are moved.
Depending on their size, birds are moved about every six to eight weeks. About two to three days
is required to move them. Odors may also occur during the transportation of the waste and a few
times a year when the houses are cleaned.
23. Chicken houses are inspected at least annually and more frequently if there are
complaints about the operation of the animal growing operation.
24. There is no potential for groundwater contamination in the operation of the poultry
farm.
25. Mr. Rutledge owns property on the north side of the broiler facility.
26. Located on his property are a large pool, wading pool, bath house and pump room.
The pools, which are not in use, are surrounded by a chain link fence. The fence is broken in certain
areas and needs repair. Additionally, the life guard stand needs to be replaced.
27. Rutledge also objects to the location of the chicken houses because of his wife's
medical condition. Mrs. Rutledge is 65 years old and suffers from respiratory problems derived from
long term use of tobacco products. She experiences heavy breathing without exerting herself and
occasionally wheezes. She is not restricted in her activity and is not using oxygen to aid her
breathing. She was advised to stop smoking for at least six months in order for any lung damage to
be evaluated.
28. Presently, Mrs. Rutledge does not visit the property in Clarendon County. Upon her
retirement, there are some plans for the Rutledges to use the property as a second home.
29. The Scotts also own property north of the proposed broiler operation. There are no
buildings on or improvements to the property. The Scotts do not live on the property.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has jurisdiction over the issuance of
environmental permits 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 poultry facilities is governed by the S.C.
Pollution Control Act (PCA), codified at 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
in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90 (Rev. 1987).
4. The S.C. Pollution Control Act requires that a permit be acquired before disposing
of waste generated by a facility. S.C. Code Ann. § 48-1-90 (Rev. 1987).
5. S.C. Code Ann. § 48-1-100(A) (Supp. 1994) provides in part:
A person affected by the provisions of this chapter or the rules and
regulations adopted by the department [who desires to dispose of waste into
the environment of this State] first shall make application to the Department
for a permit to construct and a permits 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 S.C. Code Ann. §§ 48-1-30 and 48-1-100(B), DHEC promulgated
24 S.C. Code Regs. 61-9 (Supp. 1994), issued the "Environmental Guidelines and Procedures for
Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" in
April 1985, and issued the "Agricultural Facility Permitting Requirements of the Bureau of Water
Pollution Control" in December 1994. The regulation and guidelines explain the application,
permitting procedures, criteria, and standards for a state construction permit.
7. In the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution
Control", page 15, one of the factors utilized for site selection is the distance from the lot line of the
site on which the production unit is located. This standard distance is 1000 feet. All property owners
within 1000 feet are asked to sign a form stating their approval or disapproval of the proposed
facility.
8. The Special Conditions contained in the Permit give protection to adjoining
landowners in that they require, among other things, that any nuisance may require additional
controls. These include: manure should be applied only when weather and soil conditions are
favorable and when prevailing winds are blowing from nearby opposite dwellings; good sanitation
should be practiced and leaking waters should be repaired to reduce fly problems; wastes wet enough
to cause fly or other problems will be removed from the houses; and clean up of any spillage
occurring during transportation of the waste. If, in the future, Petitioners are harmed by the operation
of the facility, adequate remedies are available through the courts of this State.
9. Pursuant to ALJD Rule 29(B), all issues raised in these proceedings and not
specifically addressed in this Order are deemed denied.
10. Petitioners have failed to show by a preponderance of the evidence that the State
Construction Permit # 17,615-AG should not be issued. The construction permit was properly
submitted by Rogers and reviewed by DHEC under all appropriate statutes and guidelines.
ORDER
IT IS HEREBY ORDERED, that State Construction Permit # 17,615-AG be issued as
written to William H. Rogers for a chicken broiler facility and that the stay of the permit is hereby
vacated.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
September ____, 1995
Columbia, South Carolina. |
