ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Health and Environmental Control (DHEC) granted
Construction Permit #18,017-AG to Ben Draft (Draft) in furtherance of Draft's plans to construct
a broiler facility and waste disposal system in Lexington County. Petitioners, Mike Smith (Smith)
and Edward S. Davis and Janna J. Davis (Davis), adjacent landowners, protested the granting of
the permit and sought a contested case hearing. Faye H. Sox and Sarah H. Smith also protested
the permit and sought a contested case hearing. Based upon an unopposed motion by DHEC, the
cases were consolidated on February 20, 1996.
Subsequent to the consolidation, Davis withdrew their opposition to the permit resulting in an
order of dismissal as to Davis on March 15, 1996. Further, when the hearing was called to order
on April 18, 1996, no appearance was made by Faye H. Sox and Sarah H. Smith. Accordingly,
pursuant to ALJD Rule 23, the case of Faye H. Sox and Sarah H. Smith vs. DHEC and Draft was
dismissed for failure to prosecute and failure to appear. The remaining contested case was heard
as Smith vs. DHEC and Ben Draft, on April 18, 1996, with jurisdiction granted pursuant to S.C.
Code Regs. 61-72 § 201 and S.C. Code Ann. § 1-23-600(B).
I find the permit is properly granted. 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).
II. Issue
Is DHEC's issuance of a permit proper where such permit authorizes the construction of a dry
litter facility for 83,500 broilers in three houses, is accompanied by a waste management plan and
is permitted by DHEC only with restrictions?
III. Analysis
1. Positions of Parties:
Smith essentially asserts four positions. First, the poultry houses will decrease the enjoyment of
his property (e.g. houses will decrease the value of his property, be located too close to his
property and home, create excessive odor, create excessive noise, produce flies). Second, Smith
asserts the Draft property is too small to accommodate the houses and their attendant operations
(e.g. trucks loading and unloading around the houses). Third, Smith asserts the area is too
concentrated with poultry houses in that five are currently in operation without the addition of
Draft's additional three houses. Finally, Smith asserts the permit is not granted in accordance with
DHEC's guidelines since the owners of property upon which the manure will be spread have not
given their consent, the houses will be located within 200 feet of the Smith property rather than
1,000 feet, as specified in the guidelines, there is no plat showing where the houses will be
located, and the houses will increase the risk of water pollution. DHEC asserts it has complied
with the statutes, regulations, and guidelines governing issuance of the permit.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On October 25, 1995, Draft filed an application and waste management plan with DHEC for a
poultry farm operation for 83,500 broilers in three houses.
2. The poultry facility will be constructed in Lexington County, South Carolina.
3. The site was inspected by DHEC and the Soil Conservation Service (SCS), and a waste
management plan was developed for Draft by SCS.
4. The 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. 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 Draft.
6. DHEC received objections from adjoining land owners including Smith.
7. After consideration of the objections, DHEC issued a state construction permit, #18,017-AG,
to Draft on December 5, 1995.
8. Smith sought a contested case hearing with DHEC resulting in a hearing before the
Administrative Law Judge Division on April 18, 1996.
9. Draft seeks to construct three broiler houses that will house 83,500 broilers and will produce
animal wastes in the form of manure and dead animals.
10. Draft seeks to dispose of the manure and dead animals by discharging them into the
environment.
11. 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.
12. DHEC granted the permit with extensive and comprehensive restrictions upon the permit.
13. The permit restrictions provide adequate measures to control flies and pests.
14. The permit restrictions provide adequate measures to control nuisances from dust, odor, and
noise.
15. The permit restrictions provide adequate measures to control the times and manner of
spreading the manure.
16. The permit restrictions provide adequate measures to control the maintenance and operation
of the facility.
17. The permit restrictions provide adequate measures to control the records required to be kept
by the operation.
18. The permit restrictions provide adequate measures to control future changes in the operation
of the facility.
19. Smith's objections, when viewed in light of the extensive restrictions placed upon Draft, do
not warrant prohibiting DHEC from granting the permit.
20. The distance to the poultry houses must be a distance greater than 1000 feet from the
footprint of any residence to the footprint of the poultry house.
21. Sufficient restrictions on the permit give proper consideration to the size of the property upon
which the poultry operation will exist.
22. The Lexington County area where Draft will construct three poultry houses is not overly
concentrated with poultry houses.
23. The waste management plan requires 331 acres and considers the acreage needed to
accommodate the existing houses operated by Aubrey Long plus the additional houses to be
operated by Draft.
24. The disposal plan considers the need for spreading of 689 tons of waste from Aubrey Long's
operation plus 509 tons from Draft's operation.
25. Before the waste disposal system is placed into operation, Draft must have the use of
sufficient land to meet the 331 acre requirements of the waste management plan, but Draft does
not need to have the use of the land prior to construction of the facility.
26. 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.
27. No plat is required depicting the location of the houses.
28. The Draft operation is a dry litter disposal system presenting no risk of water pollution.
3. Discussion
a. DHEC Authority For Issuing Permits For Broiler Houses and Waste Disposal
DHEC has general responsibilities over matters that present threats, whether real or potential, to
the health of the people of the State, including the handling and disposal of animal wastes. S.C.
Code Ann. § 48-1-100(C) (Supp. 1995). As a part of its specific responsibilities, DHEC is
authorized to require a party to obtain approval of plans for disposal systems for such wastes.
S.C. Code Ann. § 48-1-50(10) (1987). Further, 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) (1987). As a means of underscoring the importance of
obtaining prior approval through the permitting process, certain acts are unlawful without a
permit. 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). Further, it is unlawful for a person to discharge wastes into the
environment, except in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a)
(1987).
Established administrative law also supports the permitting authority of DHEC over a broiler
operation and waste disposal system. A regulatory body possesses not only expressly conferred
powers but also those powers necessarily inferred or implied to enable it to effectively carry out
its duties. Carolina Water Service, Inc. v. S.C. Public Service Comm'n, 272 S.C. 81, 248 S.E.2d
924 (1978). The powers of an agency such as DHEC are construed liberally when the powers
concern the protection of the health and welfare of the public. City of Columbia v. Board of
Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
b. Application of DHEC Authority Over Broiler Houses And Waste Disposal
A waste disposal system includes any system for disposing of "sewage, industrial wastes or other
wastes." S.C. Code Ann. § 48-1-10(12) (1987). Such terms are broadly defined and are
sufficiently inclusive to include dead animals and manure resulting from a broiler facility. S.C.
Code Ann. § 48-1-10(4), (5), and (6) (1987). In the instant case Draft seeks to construct three
broiler houses that will house 83,500 broilers and will produce animal wastes in the form of
manure and dead animals. Further, Draft seeks to dispose of the manure and dead animals in a
manner that will discharge such into the environment. Accordingly, Draft must obtain a permit
from DHEC before Draft is allowed to construct the facility and DHEC may place limitations
upon the permit issued.
A. DHEC Restrictions
Here, the DHEC staff utilized written guidelines in determining whether and under what
restrictions to issue the permit to Draft. The guidelines are published and made available to the
public in documents dated December 1, 1994 and April 1985. Among other things, the 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 the guidelines, DHEC granted the permit but imposed extensive as well as
comprehensive restrictions upon the permit. These restrictions are summarized within six areas as
listed below:
1) Control of flies (if the waste contains fly larvae or pupae sufficient to cause a community fly
problem, DHEC will provide assistance; 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 houses and
applied to the land by disking to eliminate the fly problem; should spillage occur during
transportation of the waste, Draft will 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).
2) Control of noise and nuisance (any nuisance generated at the facility resulting from dust, odor,
flies, noise, surface and groundwater degradation must be abated within a time frame as
designated by DHEC).
3) Control of times and manner of spreading the manure (manure or litter cannot be spread on
weekends without prior approval of DHEC; wastes spread on pasture or hay land less than 200
feet from a dwelling must be pursuant to a letter of approval from the tenant/owner; waste spread
on cropland must be disked in immediately and, if such practice is followed, waste can be
removed and spread any month during the year; manure may be applied only when weather and
soil conditions are favorable and when prevailing winds are blowing from nearby opposite
dwellings; a minimum of a four-week recovery period is required between applications; sufficient
land must be available to rotate applications to utilize nutrients in waste for crop productions;
waste cannot be applied closer than 100 feet to any waterway, stream, lake, well, spring, or pond;
spread and immediately incorporate manure on flood plains after danger of major runoff events is
past; use lower rates of application on shallow soils over bedrock in order to reduce potential
pollution of groundwater; on slopes over 300 feet long in cropland, install terraces or surface
drains).
4) Control of maintenance and operation of the facility (all medical wastes (hypodermic needles,
serum bottles, etc.) must be disposed of according to DHEC regulations; all sanitary precautions
must be used in the collection, storage, transportation, and spreading of wastes; grading and
filling must be done to eliminate erosion problems for the entire facility; Draft must operate and
maintain waste system, including all of the special conditions in accordance with Waste
Management Plan developed by W. Thomas Stone, NRCS Conservation Technician; the manure
must be covered during transportation; dead broilers must be disposed of in a manner approved
by DHEC; and if a massive die-off occurs, Draft must notify DHEC at once).
5) Control of records (Draft must notify DHEC when the construction is completed and the plan
is ready to be implemented; Draft must keep a written log for DHEC's review containing an
annual chemical soil test performed on all the areas to which manure and wastewater have been
applied, an estimate of the amount of solids and liquids removed from the facility, identification
of the site from which the solids and liquid were land applied and the amount, list the date when
solids and liquids were applied, state the amount of broilers that died per month, and record
where and how the dead animals are ultimately disposed).
6) Control of future changes (Draft must secure a permit to operate prior to placing the facility in
operation; Draft is responsible for operating and maintaining the waste management system in
accordance with State and Federal law so as to prevent discharges to the environment and should
the plan fail to function as intended, then additional control or treatment of the wastes will be
required; Draft must notify DHEC immediately if conditions change such as abandonment or
expansion; Draft must notify DHEC of the proposed transfer at least thirty (30) days in advance;
transfers of the permit are allowed if a written agreement between the existing and new permittee
is submitted to DHEC containing a specific date for the transfer of permit responsibility,
coverage, and liability for violations up to that date and thereafter).
B. Smith's Objections
While Smith's objections are legitimate concerns, when viewed in light of the extensive
restrictions placed upon Draft, the concerns do not warrant prohibiting DHEC from granting the
permit.
1. Enjoyment of Property
Smith asserts the poultry houses will decrease the enjoyment of his property since the houses will
decrease the value of his property, be located too close to his property and home, create excessive
odor, create excessive noise, and produce flies. As to the loss of property values, DHEC is
principally charged with assuring the health of the public. While DHEC's authority is broad, in the
absence of a duty related to the health and welfare of the public, DHEC is not charged with the
responsibility of establishing the land use mix within an area. Land use decisions are primarily the
responsibility of zoning authorities who exercise wide discretion in decision making. See Bear
Enterprises v. County of Greenville, ___ S.C. ___, 459 S.E.2d 883 (S.C. App. 1995); Rushing v.
City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). As to the location of the poultry
houses, DHEC has restricted the location by limiting such to a distance greater than 1,000 feet
from the footprint of any residence to the footprint of the poultry house. Further, the noise, odor,
and presence of flies is subject to sufficient and extensive limitations in the permit granted by
DHEC.
2. Inadequate Property Size
Second, Smith asserts the Draft property is too small to accommodate the houses and their
attendant operations (e.g., trucks loading and unloading around the houses). The poultry houses
must be at least 1,000 feet from a residence. In addition, DHEC found the waste disposal system
was adequate to service the facility and has restricted the permit to assure all sanitary precautions
are used in the collection, storage, and transportation of the wastes. Further, the permit
specifically requires that the manure must be covered during transportation. Thus, sufficient
restrictions on the permit give due consideration to the size of the property.
3. Concentration of Poultry Houses
Third, Smith asserts the area is too concentrated with poultry houses in that five are currently in
operation without the addition of Draft's additional three houses. The evidence demonstrates the
area is not overly concentrated. The waste management plan considers the acreage needed to
accommodate the existing houses operated by Aubrey Long plus the additional houses to be
operated by Draft. The disposal plan considers the need for spreading 689 tons of waste from
Aubrey Long's operation plus 509 tons from Draft's operation. The land needed is approximately
331 acres. Sufficient land will be available to meet the need. Accordingly, the area is not overly
concentrated.
4. Application of Guidelines
Finally, Smith asserts the permit is not granted in accordance with DHEC's guidelines since the
owners of property upon which the manure will be spread have not given their consent, the
houses will be located within 200 feet of the Smith property rather than the guidelines' 1,000 feet,
there is no plat showing where the houses will be located, and the houses will increase the risk of
water pollution. The guidelines applied by DHEC require that before the waste disposal system is
placed into operation, Draft must have the use of sufficient land to meet the requirements of the
plan. The guidelines do not require Draft to have the required land prior to construction of the
facility. Thus, Draft has not failed to satisfy the guidelines as to land availability. As to the
location of the houses, the houses must be at least 1,000 feet from any residences and 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. In addition,
there is no requirement that a plat be made depicting the location of the houses. Finally, the
testimony demonstrated the operation is a dry litter disposal system for which there is no risk of
water pollution. In the instant case, the restrictions are proper, the guidelines are adequately
applied and are reasonable for the operation of the facility. Accordingly, the permit is properly
restricted and properly granted by DHEC.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. 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
animal wastes. S.C. Code Ann., § 48-1-100(C) (Supp. 1995).
2. DHEC is authorized to require a party to obtain approval of plans for disposal systems for such
wastes. S.C. Code Ann. § 48-1-50(10) (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)
(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) (1987).
6. A regulatory body possesses not only expressly conferred powers but also those powers
necessarily inferred or implied to enable it to effectively carry out its duties. Carolina Water
Service, Inc. v. S.C. Public Service Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).
7. DHEC's powers are construed liberally when the powers concern the protection of the health
and welfare of the public. City of Columbia v. Board of Health and Environmental Control, 292
S.C. 199, 355 S.E.2d 536 (1987)
8. A waste disposal system includes any system for disposing of "sewage, industrial wastes or
other wastes." S.C. Code Ann. § 48-1-10(12) (1987).
9. "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) (1987).
10. DHEC is principally charged with assuring the health and welfare of the public by controlling
air and water pollution and, while DHEC's authority is broad, in the absence of a duty related to
the health and welfare of the public, DHEC is not charged with the responsibility of establishing
the land use mix within an area. See S.C. Code Ann. § 48-1-20 (Supp. 1995).
11. Land use decisions are primarily the responsibility of zoning authorities who exercise wide
discretion in decision making. See Bear Enterprises v. County of Greenville, ___ S.C. ___, 459
S.E.2d 883 (S.C. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797
(1975).
12. The guidelines are adequately applied and are reasonable for the operation of the facility.
13. The permit is properly restricted and properly granted by DHEC.
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is
issued:
Construction permit #18,017-AG as issued with restrictions on December 5, 1995 to Ben Draft is
properly granted by DHEC.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 23rd day of April, 1996 |
