SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The South Carolina Department of Health and Environmental Control (DHEC) issued Construction Permit #17,988-AG to J. Bruce Collins (Collins) in furtherance of Collins' plans to construct one (1) dry litter turkey brooder barn and two (2) dry litter turkey grow-out barns and waste treatment facilities in Chester County. Petitioners, Edgemoor Community Action Association, et al. (Edgemoor), protested the issuance of the permit and sought a contested case hearing. The contested case was heard before me on May 8-9, 1996 in Columbia.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a Motion for Reconsideration is not a prerequisite to any party filing a Notice of

Appeal of this Order. ALJD Rule 29(C).

ISSUES

Edgemoor's Position.

Edgemoor, in its Prehearing Statement, asserted the following positions:

1. That the decision by DHEC to permit the proposed Collins turkey breeding facility is arbitrary, capricious, an abuse of disc retion, and unsupported by substantial evidence;
2. That the decision by DHEC to permit the proposed Collins turkey breeding facility is in violation of the constitutions of the United States and South Carolina and relevant statutes and regulations;
3. That the decision by DHEC to permit the proposed Collins turkey breeding facility is contrary to the requirements of the federal Clean Water Act, 33 U.S.C.  1251, et seq., the South Carolina Pollution Control Act, S.C. Code Ann. 48-1-10, et seq., and S.C. Code Regs. 61-9, including the disposal of manure, dead birds, and other wastes which will contaminate the surface waters of McFadden Branch and Hicklin Branch which are less than 500 feet down gradient from the proposed site;
4. That the proposed Collins turkey breeding facility will contaminate groundwater with pollutants from which drinking water is drawn;
5. That the proposed Collins turkey breeding facility will contaminate the air from the dispersal of pollutant-bearing dust particulates;
6. That the proposed Collins turkey breeding facility will produce and expose the community to flies and other disease-bearing pests;
7. That the proposed Collins turkey breeding facility will adversely affect the flow of flood waters from the construction and operation of an access road within the 100-year flood zone;
8. That the proposed Collins turkey breeding facility will generate truck traffic which will exceed the safe design capacity of roads leading to the facility;
9. That the proposed Collins turkey breeding facility will produce foul smelling odors and other impacts which will unreasonably interfere with the use and enjoyment of private and public property near the proposed facility or locations where wastes from the proposed facility will be discharged into the environment; and
10. Contrary to the requirements of the federal Clean Water Act, Act, 33 U.S.C.  1251, et seq., the South Carolina Pollution Control Act, S.C. Code  48-1-10, et seq., the South Carolina Administrative Procedures Act, S.C. Code 1-23-310, et seq., and S.C. Code Regs. 61-9, DHEC has failed to assure protection of the public health and environment through a denial of this permit or the imposition of necessary terms and conditions.

DHEC's and Collins' Position.

DHEC's and Collins' positions are essentially the same. They refute the allegations by Edgemoor and affirmatively state that the permit, as issued, is adequately protective and does not result in a violation of the Pollution Control Act or any other applicable law or regulation.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of evidence:

General Findings

1. On September 22, 1995, Collins filed an application and waste management plan with DHEC for a poultry farm operation for 32,000 turkeys located in three barns.
2. The proposed turkey facility would be constructed in Chester County, South Carolina.
3. The site was inspected by DHEC and the Natural Resources Conservation Service (NRCS), and a waste management plan was developed for Collins by NRCS.
4. The application was reviewed by the DHEC Division of Water Pollution Control pursuant to the S.C. Pollution Control Act, S.C. Code Ann. 48-1-10 et seq. (Rev. 1987 & Supp. 1995), as implemented through guidelines entitled the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" (April 1985), and the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" (December 1, 1994).
5. Notification letters of the proposed construction were sent to all landowners within 1,000 feet of the facility proposed by Collins.
6. DHEC received objections from a number of citizens.
7. After consideration of the objections, DHEC issued a state construction permit, #17,988-AG, to Collins on October 25, 1995.
8. The following conditions were imposed by DHEC upon the permit: manure or litter could not be spread on weekends without prior approval of DHEC; wastes could be spread on pasture or hay land less than 200 feet from a dwelling only after a letter of approval from the tenant/owner of the affected property; waste spread on cropland must have been disked in immediately and, if such practice was followed, waste could have been removed and spread any month during the year; manure should be applied only when weather and soil conditions were favorable and when prevailing winds were blowing from nearby opposite dwellings, a minimum of a four-week recovery period was required between applications; sufficient land must have been available to rotate applications to utilize nutrients in waste for crop productions.
9. Pursuant to the permit, if the waste contains fly larvae or pupae sufficient to cause a community fly problem, waste containing fly pupae must be buried in compliance with the approval requirements of DHEC; leaking waters are to be repaired promptly to prevent flies; any wastes wet enough to cause fly or other problems will be removed from the barns and applied to the land by disking to eliminate the fly problem; should spillage occur during transportation of the waste, Collins is required to take immediate steps to clean up the wastes; to prevent fly breeding, any wastes stockpiled more than three (3) days prior to spreading must be stored on a concrete pad or other acceptable means and covered with black plastic with a hole four (4) inches in diameter cut in the plastic at the top of the pile and vented with screen wire to let the gases escape and soil should cover the edges of the plastic.
10. The following recommendations were also imposed by DHEC in applying the waste:
a. Avoid applying waste closer than 100 feet to waterways, streams, lakes, wells, springs, or ponds;
b. Spread and immediately incorporate manure on flood plains after danger of major runoff events is past;
c. Use lower rates of application on shallow soils over bedrock to reduce possible pollution of groundwater;
d. On slopes over 300 feet long in cropland, [Collins should] install terraces or surface drains to trap sediment and increase flow time to outlet.
11. Edgemoor sought a contested case hearing with DHEC and Collins resulting in a hearing before the Administrative Law Judge Division on May 8-9, 1996.
12. Collins seeks to construct three turkey barns that will hold 32,000 turkeys and produce animal wastes in the form of manure and dead animals. The turkey barns are located 100 feet from the northeast lot line of a 65.59 acre tract.
The site is at the top of a steep hill with creeks located at the bottom on both sides. The creeks, the McFadden and Hicklin Branches, drain into Fishing Creek and the Catawba River. The land between the creek branches occasionally floods.
13. Collins seeks to dispose of the manure and dead animals by discharging them into the environment. The disposal plan considers the need for recycling 480 tons of waste from Collins' operation. Before the waste disposal system is placed into operation, Collins must have the use of sufficient land to meet the 175 acre requirements of the waste management plan, but Collins does not need to have the use of the land prior to construction of the facility. The proposed waste management plan has 777 acres available to recycle the turkey waste during any given year.

Land Application of Waste

14. The Collins permit contains the "recommendation" to avoid waste application less than 100 feet from a waterway and install terraces or surface drains on sloping sites.
15. Land applied animal wastes may pose a hazard to human health through contamination of ground water. Nitrogen in animal waste becomes highly mobile once converted in the soil through oxidation to the nitrate form. Therefore, environmental problems may arise when manure is applied to crop land in quantities in excess of the nutrient needs of the plants. However, the Petitioner did not establish sufficient evidence that the Collins' turkey breeding facility will contaminate groundwater with pollutants.
16. The over application of animal wastes can also lead to environmental harm to surface waters. If manure is excessively applied to land, the nitrogen can lead to fish kills due to ammonia toxicity caused by the anaerobic breakdown of the nitrogen. Additionally, the release of the excess nitrogen and phosphorous nutrients from manure into surface waters can cause the oxygen present to be consumed, leading to fish kills or other adverse effects on aquatic life from a low dissolved oxygen condition.
17. In order to avoid manure runoff, the soil characteristics of land application sites are an important consideration. Slope, erodibility and vegetative cover are particularly important considerations. Additionally, flood prone sites pose particular problems for manure disposal where the soils may be already saturated or where flooding may cause direct washing of the wastes into the stream. Furthermore, manure applied to rain-saturated soils or immediately after land application may lead to run off into adjacent waterways.
18. DHEC approved Collins original waste management plan despite its inclusion of several fields with steep slopes, flood-prone bottomland or land directly adjacent to surface waters. Specifically, DHEC approved a six-acre field owned by Collins at the top of the hill where the barns are to be located, and a 2.7 acre field owned by Collins in the bottomland between the confluence of Hicklin and McFaden Branches. Mr. Jason Gillespie, the DHEC Environmental Engineer Associate responsible for writing the Collins permit, acknowledged that the above fields are the most potentially hazardous areas to apply waste.
19. After the permit was issued, the waste management plan was amended to add additional acreage. The Addendum to the permit includes two tracts of 49.4 and 34 acres immediately adjacent to the surface waters of Fishing Creek. Mr. Gillespie was aware before he approved the Collins permit that DHEC had identified Fishing Creek as included on the Section 319 list of waters impacted by agricultural activities, and that DHEC had concluded that computer modeling indicates a high potential for nonpoint source problems from agricultural activities for this stream.
20. The 2.7 acre bottomland site, a part of additional listed fields adjacent to the surface waters of Fishing Creek and the six-acre site at the top of the hill are not appropriate disposal sites.

Odors

21. At least eight residences are located within 2000 feet of the Collins site. The nearest house beyond the Collins property belongs to Collins' sister and is about 1200 feet away. Next is the Clewis home, 1600 feet away; the Rollins home, 1650 feet away; the Tothorow home, 1750 feet away; the Ferguson and Doster homes, 1800 feet away; the Gideon and Bennett homes, 1900 feet away; Petitioner Jean Williams' home, 1950 feet away; and the Bailey home, 2000 feet away.
22. Any wastes spread on pasture or hay land must be greater than 200 feet from a dwelling, or if within 200 feet, must be pursuant to a letter of approval from the tenant or owner of the dwelling.
23. Shavings and sawdust are put on the floor of a turkey barn in an attempt to "dewater" the turkey droppings and spread the moisture. Heat is also generated in the litter to produce composting which will drive off excess moisture and trap ammonia until it is oxidized. Typical of poultry barn designs, the Collins facility is to include a complex pressurized plumbing system to deliver water to automatic watering devices available to the birds. Spilled water or other accidents often produce large areas of wet litter which must be removed to protect the health of the birds. Under such conditions, ventilation rates must be increased to pump more air through the barn resulting in a more odorous exhaust gas.
24. Odors exhausting from the Collins turkey barns will include gasses which are emitted from the droppings and evolve in the litter. A complex series of molecules comes from the intestines of the animal and begins to decompose into carbon dioxide, ammonia and methane. In the process, a long list of compounds is created each with a volatility level which, if emitted into the air, will be identified by the human nose as an odor. While low in concentration, some of these compounds are particularly powerful odor sources. In addition, odors will associate with dust particles in the barn from feathers, dander and the action of the birds on the litter. Gasses, aerosols and particularly the finer dust particles may travel downwind from the facility for 1000 feet. Smaller dust particles may easily travel downwind a half mile.
25. The Collins facility will inevitably produce distinctive odors even when managed under optimal conditions as described in the permit application. Such odors will not be contained in the barn, but will by design be exhausted from the barn into the ambient air through automatic, thermostatically controlled exhaust fans designed to draw odors out of the barn and into the environment. In addition, the facility is designed with side curtains which are to be raised to promote natural ventilation. Ventilation is essential to the health and productivity of the birds. By necessity, odors will regularly be exhausted from the barn into the community during routine operations.
26. Dr. Ronald Miner chaired the Department of Agricultural Engineering at Oregon State University for ten years. He presently serves as the Extension Water Quality Specialist for the State of Oregon, conducting research on animal waste management and on the control of odors associated with animal waste production. In addition, he teaches courses in nonpoint source pollution and other water quality-related matters. Dr. Miner has concentrated his work over the last 23 years on the study of animal waste and the control of odors related thereto. He has published extensively in the field including more than 100 technical articles in referred journals and other publications. He has coa uthored a 2-volume textbook on animal waste management.
27. Dr. Minor testified, as recommended by Dr. Clyde Barth of Clemson University, that an appropriate location for a turkey facility, given the inevitable odors emitted, is one-half mile from a residence and one mile from a school or housing development. Dr. Barth's published work, "Using Odor Control Technology to Support Animal Agriculture," sets forth that building sites should be selected that are "one-half mile from neighboring residences or a mile from communities, schools, institutions, or places of employment. If possible, locate facilities so that day and night prevailing winds blow away from the nearest residents. Influence of wind currents during the day and evening hours will cause the downhill air drainage and may result in more serious problems than during the day." (emphasis added).
28. Retired State Climatologist Emeritus John C. Purvis testified that on a regional basis, the southeastern United States, including northwestern South Carolina, experiences more frequent air stagnation than any other region in the country except a certain area in the western United States. This phenomenon is a product of meteorological conditions consisting of a warm high pressure area creating an inversion of warm air aloft which cuts off the circulation of vertical air movement. The greatest seasonal frequency of air stagnation occurs in the late spring, summer and early fall when high pressure over the Atlantic slows the movement of weather.
29. On a local and short term basis, the phenomenon of ground inversion contributes to the air pollution problem particularly in conjunction with regional air stagnation conditions. During the night, under clear still conditions, the ground and air cool rapidly and the air drains from higher areas down into lower areas of terrain. This phenomenon develops every night under these conditions and disappears each morning as the sun comes out and warms the ground.
30. Odors, associated with gasses or small particulates, will move through the atmosphere. So long as such substances are small enough to remain in the atmosphere, they will flow downhill at night during ground inversion conditions and thereafter with the prevailing winds.
31. Complete elimination of odors associated with animal production is neither technically nor economically feasible. However, odors will inevitably be detectable by people living in the area to the south of the proposed Collins facility along Westbrook Road, and in the small subdivision adjacent to the Collins property. The existence of the large hill on which the Collins barns are to be located will cause drainage of air and odors down the slope of the hill and into the area below during the night. When the ground heats during the day, the air and odors will rise and be caught by the prevailing winds which will move, generally, from west to east. Persons residing in the homes below and to the east of the Collins site would experience odors with the greatest frequency in the late spring, summer and early fall.
32. Pursuant to the 1994 DHEC guidelines, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Site Selection Criteria," DHEC considers, in part, the following factors in site selection: the topography of the site, the distance to neighboring residences, cover crops and trees in the area, prevailing wind directions and the distance to any river, tributary, branch, etc.
33. Henry Gibson is employed part-time by DHEC in the animal waste permitting area. Until his retirement, he worked for DHEC for 33 years, retiring as Manager of the NPDES Administration and Agricultural Wastewater Section. Mr. Gibson coauthored the April 1985, "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina," which was a compilation of agency policies dating from the 1970s which were brought together into one publication. The guidelines were intended for internal use by DHEC District personnel. The December 1, 1994, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control," were put together by the Bureau Director, Marion Sadler, and were extracted from the 1985 document specifically for use by the public. The 1994 document was intended as guidance for permitting officials at the Agency and also as a public statement of the Agency's policy.
34. Mr. Gibson does not have personal knowledge of the origin of the 1,000 foot setback standard which appears in both the 1985 Guidelines and the 1994 Permitting Requirements. The setback is simply a standard which he inherited as he has been involved with these permits since 1978 or 1979. He understands that the 1,000 foot setback standard evolved from discussions between DHEC and Clemson University's agriculture faculty in an effort to derive a set of standards or guidelines for use in permitting a variety of animal facilities. Mr. Gibson explained the setback standards were only guidelines and not regulations. No regulations have yet been promulgated, although some years ago DHEC prepared draft regulations including setbacks from neighboring lot lines. These draft regulations were never promulgated because of objections from farm interests. Without regulations, DHEC has relied on the Guideline and Permitting Requirements documents.
35. Other similar facilities have on occasion been the subject of odor complaints, some of which have not been adequately addressed by DHEC.
36. In considering the above evidence, I find that the site selected by Collins is not proper because of its proximity to the neighboring residences.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

General Conclusions

1. Pursuant to the Pollution Control Act, DHEC has general responsibilities over matters that present threats, whether real or potential, to the health of the people of the State with such threats including the handling and disposal of an imal waste. S.C. Code Ann.,  48-1-100(C) (Supp. 1995).
2. DHEC is authorized to require a party to obtain approval of plans for agricultural facilities and waste disposal sytems. S.C. Code Ann.  48-1-50(10) (Rev. 1987).
3. DHEC may grant its approval by the issuance of a permit "under such conditions as it may prescribe . . . for the installation or operation of disposal systems . . ." S.C. Code Ann.  48-1-50(5) (Rev. 1987).
4. It is unlawful to construct or install a waste disposal system until the plans for such have been submitted to and approved by DHEC through the issuance of a permit. S.C. Code Ann.  48-1-110(a)(1) (Supp. 1995).
5. Except in compliance with a permit issued by DHEC, it is unlawful for a person to discharge wastes into the environment. S.C. Code Ann. 48-1-90(a) (Rev. 1987).
6. A waste disposal system includes any system for disposing of "sewage, industrial wastes or other wastes." S.C. Code Ann. 48-1-10(12) (Rev. 1987).
7. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a broiler facility. S.C. Code Ann. 48-1-10(4), (5), and (6) (Rev. 1987).
8. DHEC is principally charged with assuring the health and welfare of the public by controlling air and water pollution. See S.C. Code Ann. 48-1-20 (Supp. 1995).

Standard of Proof

9. Edgemoor argues that the decision by DHEC to permit the proposed Collins turkey breeding facility is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence. This erroneously suggests the standard of proof in a contested case hearing before the Administrative Law Judge Division is "substantial evidence." This is not the case, as that standard applies only to judicial review of final agency decisions. (See, e.g., Hamm v. South Carolina Public Service Com'n, 309 S.C. 282, 422 S.E.2d 110 (1992): The Supreme Court is without authority to set aside an agency's judgment on factual issue where there is substantial evidence in the record to the support agency's decision.) The standard of proof in weighing the evidence and making a decision on the merits in a contested case 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).

State and Federal Law

10. Edgemoor argues that the decision by DHEC to permit the proposed Collins turkey breeding facility is "in violation of the constitutions of the United States and South Carolina and relevant statutes and regulations." As this allegation is vague in nature, it is appropriate to discuss what law applies, and more importantly, what does not. As discussed below, the applicable law is the South Carolina Pollution Control Act, specifically, S.C. Code Ann.  48-1-90 and 100 (Rev. 1987). While nonpoint source discharges are considered under the Federal Water Pollution Control Act (FWPCA), they are not specifically regulated. See 33 U.S.C.  1329. "Point source discharges" are specifically regulated under the federal act (See 33 U.S.C.  1341-1345). DHEC has delegated authority to administer the National Pollution Discharge Elimination System (NPDES) which requires permits for "point source" discharges and does so through S.C. Code Regs. 61-9. Regs. 61-9 specifically contemplates NPDES permits for certain types of concentrated animal feeding operations, and the type of operation permitted here does not meet those criteria. S.C. Code Regs. 61-9.122.23 and S.C. Code Regs. 61-9 Appendix B. Consequently, neither the FWPCA nor any regulation promulgated pursuant to the FWPCA or pursuant to South Carolina's delegated authority are applicable in this case.

Permitting Criteria

11. The 1994 DHEC guidelines, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Site Selection Criteria," set forth that "Factors that could have an effect on site selection," in part, are:
b. distance from dwellings (public and /or private) on adjacent property, transport nuisance, i.e.: odor, dust, noise, etc.;
d. distance from the lot line of the site on which the production unit is located; (1,000 ft. standard). NOTE: All property owners within 1,000 ft. are asked to sign a form stating their approval/ disapproval of the facility (Appendix B)
h. prevailing winds;
i. surface features (Topography of land surface);
j. distance to river and/or tributary, branch, etc.
12. The 1994 DHEC guidelines, the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Nuisances" states under the "Source" heading that: "Odors from buildings with confined animals can be a significant nuisance. This can result in community complaints registered against the owner. . . . If manure accumulates, odors increase and become more offensive." Under the heading, "Procedures That Will Minimize Odor Complaints," the permitting requirements state that nuisance odors can be virtually eliminated by employing "Proper site selection, correct design of the waste handling and disposal system, and keen management skills. . . ." Specifically, "A good site selection takes into consideration the location of neighbors when planning the placement of the buildings and manure handling facilities."
13. At S.C. Code Ann. 48-1-30 (Rev. 1987), DHEC is mandated to promulgate regulations to implement the Pollution Control Act, to govern DHEC's procedure with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure. As of this date, no regulations detailing guidelines and procedures for agricultural facility permitting, and the waste disposal systems for those facilities, have been adopted by the General Assembly.
14. Because no specific regulations have been promulgated to regulate agricultural facilities and waste disposal systems for those facilities, no specific regulations exist which govern the boundaries and requirements of a permit that is applicable in this particular situation.
15. A regulation is an "agency statement of general public applicability that implements or prescribes law or policy or practice requirements of an agency." S.C. Code Ann. 1-23-10(4) (Rev. 1986). A substantive rule is one which has a significant impact upon the existing rights and obligations of regulated parties, and has the force and effect of law such that the agency is no longer free to exercise its discretion in the application of the rule. American Bus Ass'n v. United States, 627 F.2d 525 (D.C. Cir. 1980). It is well-settled law in South Carolina that regulations must be promulgated pursuant to the mandates of the APA.
16. As a creature of statute, a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged. City of Rock Hill v. South Carolina Department of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990). However, powers may not be implied which enlarge statutory authority, or which liberalize the policy underlying the statute on which they are based. Beard-Laney, Inc. v. Darby, 213 S.C. 380, 49 S.E.2d 584 (1948).
17. In determining whether a rule should be promulgated as a regulation, courts look to the actions of the agency, not the label the agency gives. Columbia Broadcast System, Inc. v. United States, 316 U.S. 407 (1942); see also Owen Industrial Products, Inc. v. South Carolina Department of Health and Environmental Control, C.A. # 91-CP-40-1444 (1992). Whether a particular agency proceeding announces a rule or a general policy statement depends upon whether the agency action establishes a "binding norm." Home Health Service, Inc. v. South Carolina Tax Com'n, 312 S.C. 324, 440 S.E.2d 375 (1994). If the rule acts as a "binding norm" and give the agency no discretion in its application, the rule is invalidly enacted regulation. American Bus, 627 F.2d at 529.
18. DHEC has improperly applied the 1994 Permitting Requirements to agricultural permit applicants instead of promulgating specific regulations as was directed by the General Assembly.
19. The 1994 Permitting Requirements, on their face, are binding on all similar applicants.
20. DHEC's formulation and application of the 1994 Permitting Requirements, without promulgating them as regulations, is without substantial justification, and is in direct conflict with an express legislative mandate to promulgate regulations pursuant to 48-1-30 of the Pollution Control Act.
21. The 1994 Permitting Requirements issued to provide guidance for the issuance of agricultural facility permits are not promulgated regulations, and therefore, do not have the force and effect of law. See Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
22. Because no specific regulation governs the boundaries and requirements of a permit applicable to this particular situation, and because the 1994 Permitting Requirements do not have the force and effect of law, this tribunal must consider all relevant evidence and materials in deciding whether to grant an agricultural facility permit.
23. The DHEC staff has utilized the 1994 written guidelines in determining whether and under what restrictions to issue the permit to Collins. DHEC guidelines address site selection, waste management, manure storage and handling, dead animal disposal, nuisances caused by odors and vectors such as flies, and maintenance and operation of the facility. Based upon these guidelines, DHEC granted the permit with restrictions.
24. The DHEC guidelines establishing a 1,000 foot set back are unclear as to whether the set back operates from the lot line or footprint of the turkey barns at the proposed facility. However, since the guidelines do not carry the force and effect of law, my decision is based on the consideration of the guidelines and the relevant evidence presented at the hearing.

ORDER

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

ORDERED that Construction permit #17,988-AG is denied:

AND IT IS SO ORDERED.

__________________________________
Ralph King Anderson, III
Administrative Law Judge

Columbia, South Carolina
November 19, 1996