ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE
CASE
The above-captioned case comes before this Court pursuant to S.C.
Code Ann. § 1-23-600(B) (Supp. 2005) upon the request of
Petitioner Johnny Fogle for a contested case hearing.
Petitioner challenges the decision of Respondent South Carolina
Department of Health and Environmental Control (DHEC or Department)
to issue State Agricultural Permit Number 19,033-AG to Respondent
Beverly McPherson (Respondent), the owner of Smoak Poultry Farm,
for the construction and operation of a poultry farm in Orangeburg
County, South Carolina. After timely notice to the parties, a
hearing of this matter was held on September 26 and 27, 2006, at
the South Carolina Administrative Law Court in Columbia, South
Carolina. Based upon the evidence and arguments presented at
that hearing and upon the applicable law, I find that DHEC’s
decision to issue the permit in question must be sustained.
FINDINGS OF
FACT
Having carefully considered all testimony, exhibits, and arguments
presented at the hearing of this matter, and taking into account
the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. On August 23,
2005, Respondent Beverly McPherson, the owner of Smoak Poultry
Farm, submitted to the Department an application and Animal
Facility Management Plan for an agricultural permit authorizing the
construction and operation of a poultry farm on property located at
1862 Hudson Road in Cope, South Carolina. This property is
located in a rural, largely agricultural portion of Orangeburg
County. The proposed facility itself consists of four poultry
houses used to raise broiler chickens and will be operated by
Respondent’s son, Larry Travis Smoak.
2. Petitioner
Johnny Fogle, a Charleston resident, owns a 100-acre tract of land
adjacent to the property on which the proposed farm will be
located. Petitioner’s property, which he acquired
through his family, is currently vacant agricultural land with an
abandoned homestead located within several hundred feet of the
proposed poultry houses on Respondent’s property. While
this homestead is not currently habitable, Petitioner testified
that it is his intention to someday build a new house on the site
of the old homestead.
3. Before the
application for Respondent’s poultry farm was filed, Mr.
Smoak submitted a completed Preliminary Site Inspection Request for
Proposed Agricultural Facilities form to the Department. Upon
receipt of the request form, Lewis Rourk, an environmental heath
manager with DHEC’s regional office in Aiken, conducted a
preliminary site inspection of the location for the proposed
facility on July 1, 2005. Based upon the results of that
inspection, Mr. Rourk notified Mr. Smoak, by a letter dated July 1,
2005, that the site appeared to be suitable for a poultry farm and
that Smoak Poultry Farm could proceed with the planning and design
of its facility. The letter also summarized several of the
requirements for the issuance of an Agricultural Feeding Operation
Permit.
4. As part of the
application process for the agricultural permit, Mr. Smoak notified
all property owners within 1320 feet of the proposed facility,
including Petitioner, of Smoak Poultry Farm’s intent to apply
for an agricultural permit for the farm. This notice,
provided on a DHEC form, informed neighboring property owners of
the operator of the proposed facility, the type of animal to be
housed in the facility, the number of animal houses proposed for
the farm, and the type of manure treatment or storage to be used by
the farm. These notice forms were signed by all of the nearby
property owners, including Petitioner, and were submitted to DHEC
as part of the permit application. In addition, Mr. Smoak
obtained a waiver of the 1000-foot setback between poultry houses
and nearby residences from the owners of property with a residence
located approximately 700 feet from the proposed poultry
houses.
5. In addition to
the notice forms provided to residents within 1320 feet of the
proposed poultry farm, public notice of Respondent’s
application was posted on signs at four locations on or near the
perimeter of the proposed facility, including a posting on a
telephone pole on Hudson Road in front of Emmanuel AME Church,
which is located across the road from the entrance to the access
road for the facility. This public notice was posted by Mr.
Rourk on September 13, 2005.
6. As a result of
the notice to the public and nearby property owners, DHEC received
numerous comments regarding Respondent’s application,
including comments from Nancy New, one of the property owners whose
property is located within 1320 feet of the proposed
facility. In her comments, Ms. New stated that she had a
medical condition that might be exacerbated by odors emanating from
the proposed poultry farm.
7. In response to
these comments and concerns, the Department held a public hearing
on Respondent’s application on December 6, 2005. At the
hearing, Petitioner and other affected persons presented their
concerns with the proposed facility. During and subsequent to
the hearing, the Department also accepted additional written
comments regarding Respondent’s application for its poultry
farm.
8.
Respondent’s application was reviewed by Teige Elliot, a
staff member in DHEC’s Bureau of Water. As part of his
review, Mr. Elliott verified that all landowners with property
within 1320 feet of the proposed facility were identified and
received notice of the application. In addition to his
general review of the application, Mr. Elliott also submitted
requests to the appropriate divisions of the Department to review
the impact of the proposed farm upon the air and groundwater
surrounding the facility and submitted a request to Dr. Jerry
Gibson to review the potential effect of the proposed farm upon Ms.
New, in light of her medical condition. According to Mr.
Elliott, the responses he received to these inquiries indicated
that the proposed farm would not have a materially adverse impact
on the air or groundwater surrounding the facility or on Ms.
New’s medical condition. These findings were not
controverted by any evidence presented at the hearing of this
matter.
9. Based upon this
favorable review, the Department issued agricultural permit number
19,033-AG to Respondent on February 27, 2006, for the construction
and operation of the proposed Smoak Poultry Farm. Under the
Animal Facility Management Plan, as permitted, the farm will
produce some 632,500 broiler chickens per year in five and a half
flocks of 115,000 birds in its four, enclosed poultry houses.
These broilers will, in turn, produce approximately 702 tons of
manure annually. The facility will be operated with a dry
manure waste storage and disposal system in which the broilers will
be housed and raised on earthen floors covered with wood shavings
that will absorb their waste. Under the management plan, this
mixture of wood shavings and waste, also known as litter, will be
removed at least once per year from the broiler houses and taken
off-site for disposal by a licensed manure broker under contract to
perform such services. The management plan does not authorize
the storage of manure at the facility except in the broiler houses
pending removal by the manure contractor, and requires Respondent
to submit a new management plan to the Department for approval if
the farm decides to handle the manure by any other method.
Accordingly, Respondent’s agricultural permit is designated
as a “no discharge” permit that prohibits the facility
from discharging any animal wastes or by-products into the
environment.
Under the permit, the broiler chickens produced by the facility
will be housed in four poultry houses on the farm. Each of
these four poultry houses is over 100 feet from any wetlands or
waters of the state, over 200 feet from any public or private
drinking wells, over 200 feet from the property lines of
neighboring land owners, and over 1000 feet from surrounding
residences, except for the residence of Randall and Janet Miller,
who reside approximately 700 feet from the nearest poultry house
and who have signed a valid waiver of the 1000-foot set back for
their residence.
10. Petitioner timely filed a
request for a contested case with this Court to challenge the
issuance of the permit to Respondent. In his request for a
hearing and at the hearing of this matter, Petitioner raised a
number of objections to the issuance of the permit that centered
around his concerns regarding several alleged procedural
irregularities in the application review process and his concerns
regarding the siting of the proposed facility relative to nearby
properties and certain water resources in the area.
CONCLUSIONS OF
LAW
Based upon the foregoing Findings of Fact, I conclude the following
as a matter of law:
Jurisdiction and General Principles
1. This Court has
jurisdiction over this matter pursuant to S.C. Code Ann. §
1-23-600(B) (Supp. 2005) and 24A S.C. Code Ann. Regs. 61-43, Part
200.70(G) (Supp. 2005).
2. In the case at
hand, Petitioner, as the moving party challenging the
Department’s decision to issue the permit in question, bears
of the burden of proof in this matter. See Leventis
v. S.C. Dep’t of Health & Envtl. Control, 340 S.C.
118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the
burden of proof in administrative proceedings generally rests upon
the party asserting the affirmative of an issue); 2 Am. Jur. 2d
Administrative Law § 354 (2004) (same).
Therefore, Petitioner must demonstrate, by a preponderance of
the evidence, that DHEC’s issuance of agricultural permit
number 19,033-AG to Respondent fails to satisfy the regulatory
criteria governing the issuance of such permits. See
Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371,
375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof
in an administrative proceeding is generally the preponderance of
the evidence).
3. The issuance of
an agricultural permit for the construction and operation of a
poultry farm in South Carolina is governed by the regulatory
criteria set forth in 24A S.C. Code Ann. Regs. 61-43, Part 200
(Supp. 2005), including the permit application and review
provisions set out in Part 200.50 through Part 200.70 and the
facility siting requirements set forth in Part 200.80 of that
Regulation. In the instant case, Petitioner contends that, in
issuing Respondent’s permit, DHEC failed to satisfy several
of these regulatory requirements related to the application review
process, the siting of the proposed facility, and the potential for
polluting discharges from the proposed farm. These various
claims will be addressed, in turn, below.
Application Review Process
4. Petitioner
contends that Respondent failed to submit a written request for a
preliminary site inspection of the location of its proposed
facility to the Department as part of its application as required
by Regulation 61-43, Part 200.50(A). This claim is without
merit. The Department’s file on Respondent’s
application includes a properly completed Preliminary Site
Inspection Request submitted to the Department by Mr. Smoak and
correspondence between Mr. Rourk and Mr. Smoak, in which Mr. Rourk
states that he performed a preliminary site investigation of the
location for the proposed facility on July 1, 2005. This
documentary evidence was supported by the testimony of Mr. Rourk at
the hearing, in which he testified that he received the request
form from Mr. Smoak and that he conducted a site inspection of the
proposed location, as recorded in his letter to Mr. Smoak.
Therefore, the evidence presented in this matter demonstrates that
DHEC complied with Regulation 61-43, Part 200.50(A), in its
evaluation of Respondent’s permit application.
5. Petitioner
further contends that the Department failed to comply with the
public notice requirements of Regulation 61-43, Part 200.60(A), in
processing Respondent’s application by failing to comply with
his request to invalidate the notice form that he signed to
acknowledge that he received notice of Respondent’s
application and by failing to post public notice sufficiently
visible to persons traveling on Hudson Road. These
contentions must also fail. With regard to the notice form
provided to him, Petitioner argues that because he signed the form
on the incorrect line and later requested that the form be
rescinded, the notice form provided to him should be considered
invalid. However, as made clear on the notice form itself,
Petitioner’s signature on the form merely acknowledges his
receipt of notice of Respondent’s intent to apply for the
agricultural permit and does not constitute his consent to the
issuance of the proposed permit or a waiver of his right to
participate in the application review process. And, here,
Petitioner does not dispute that he received notice of the proposed
application on the requisite form. Therefore, it is simply
immaterial to the Department’s review process that Petitioner
signed the notice form on the wrong line or that Petitioner
believes that he should be able to revoke his acknowledgement of
the form. See 24A S.C. Code Ann. Regs. 61-43, Part
200.60(A) (requiring an applicant for an agricultural facility
permit only to “notify”—not receive consent
from—all property owners within 1320 of the proposed farm of
its intent to apply for the permit). Accordingly, I find that
the Petitioner was provided with valid, personal notice of
Respondent’s application as required by Regulation 61-43,
Part 200.60(A).
With regard to the public notice posted by the Department,
Petitioner argues that one of the four signs posted to provide
public notice of Respondent’s application should have been
oriented more toward drivers on Hudson Road than to persons
attending the church directly across the road from the sign.
However, at the hearing of this matter, Mr. Rourk, the DHEC staff
member who posted the public notices for Respondent’s
application, testified that he specifically oriented the public
notice on Hudson Road so that it could be easily seen by persons
entering and leaving the Emanuel AME Church located directly across
the road from the entrance to the proposed facility. While
this orientation may have made the sign somewhat less visible to
motorists traveling on Hudson Road, the sign was clearly posted in
a visible location that the Department determined to be an
appropriate place to provide notice to members of the community
surrounding the location of the proposed facility. See
24A S.C. Code Ann. Regs. 61-43, Part 200.60(A) (requiring the
Department to “post up to four notices on the perimeter of
the property or in close proximity to the property, in visible
locations as determined by the Department”) (emphasis
added). Accordingly, I find that the Department posted
adequate public notice of Respondent’s application as
required by Regulation 61-43, Part 200.60(A).
Siting of the Proposed Facility
6. In addition to
his concerns with the notice of Respondent’s application,
Petitioner contends that the Department violated several provisions
of Regulation 61-43, Part 200, in its approval of the siting of
Respondent’s poultry farm. Specifically, he challenges
the proximity of the poultry barns to drinking water wells, waters
of the state, and a home site on his property. These
contentions cannot be sustained. First, with regard to the
proximity of the proposed poultry barns to drinking water wells and
the waters of the state, Regulation 61-43, Part 200, requires that
the barns be at least 200 feet from a public or private drinking
water well (excluding the applicant’s well, which may be 50
feet from the proposed barns) and at least 100 feet from waters of
the state located down slope from the facility. See
24A S.C. Code Ann. Regs. 61-43, Part 200.80(A)(1)-(2) (Supp.
2005). However, Petitioner did not present any evidence to
suggest that the proposed poultry barns on Respondent’s farm
will be within 200 feet of any drinking water wells other than the
well on the farm or that the well on the farm will be within 50
feet of the barns. In fact, Respondent’s application
indicates that the well on the farm is the required 50 feet from
the barns and that the nearest other drinking water well is some
700 feet from the poultry barns, or over three times the minimum
separation required by the regulation. Further, while
Petitioner did present evidence that much of the land surrounding
Respondent’s proposed farm contains wetlands, the maps and
diagrams outlining the positions of Respondent’s proposed
poultry barns clearly illustrate that each of the four barns will
be located more than 100 feet from any of the wetland areas on the
property, and Petitioner did not present any evidence to
demonstrate that these alignments were inaccurate or
unfeasible. Consequently, I find that Petitioner has not
established that the siting of Respondent’s poultry houses
fails to meet the regulatory requirements with regard to their
proximity to drinking water wells and waters of the state.
Second, with regard to the proximity between the proposed poultry
barns and nearby properties and residences, Regulation 61-43, Part
200, provides that, for farms the size of Respondent’s
facility, the proposed barns must be at least 200 feet from the
property line of land owned by another person and 1000 feet from
the nearest residence. See 24A S.C. Code Ann. Regs.
61-43, Part 200.80(A)(5) (Supp. 2005). The “residences”
that must be considered for this set back include “a
permanent inhabited dwelling, any existing church, school,
hospital, or any other structure which is routinely occupied by the
same person or persons more than twelve hours per day or by the
same person or persons under the age of eighteen for more than two
hours per day, except those owned by the applicant.”
24A S.C. Code Ann. Regs. 61-43, Part 50(EEE) (Supp. 2005). In
the case at hand, Respondent’s proposed poultry barns will be
situated more than 200 feet from Petitioner’s property line
and the home site that Petitioner contends is within 1000 feet of
the site of the proposed barns does not contain a
“residence” recognized by Regulation 61-43. In
particular, the structure Petitioner contends is a residence within
the minimum set back from Respondent’s poultry barns is
currently uninhabited and has been so for approximately ten
years. Moreover, the structure itself appears to be in such a
state of disrepair that it could not be safely inhabited in its
current state. Therefore, regardless of Petitioner’s
prospective plans for the home site in the future,
Respondent’s proposed poultry houses currently meet the
regulatory requirements with regard to the proximity between such
buildings and neighboring property lines and nearby residences.
Potential Discharges from the Proposed Facility
7. Finally,
Petitioner also contends that, in approving Respondent’s
permit, the Department failed to consider the “[p]roximity
[of the proposed facility] to other known point source discharges
and potential nonpoint sources” as required by Regulation
61-43, Part 200.70(F)(6), and failed to fully consider the
potential for pollution created by the manure stored at the
proposed facility. These two claims cannot be
sustained. With regard to the first contention, Petitioner
testified to his concerns with the proximity of the proposed
facility to a number of other poultry farms in the area.
However, in stating these concerns, Petitioner did not present any
evidence to establish the type of discharges, if any, resulting
from these other farms and the impact, if any, Respondent’s
farm would have upon such discharges. Further, in his
testimony, Mr. Elliott, the DHEC staff member who reviewed
Respondent’s application, testified that he did, in fact,
consider the proximity of the proposed facility to other farms in
the area and determined that its operations would not have a
negative cumulative effect upon the area, in part because the
facility is a non-discharge facility in which the manure it
produces will merely be stored in the enclosed poultry houses to be
removed by a contractor, rather than discharged into the
environment.
Petitioner’s general concerns with manure storage at the
proposed facility must fail for similar reasons. Under the
management plan for the proposed facility, Respondent is required
to store the manure produced by the chickens in the poultry barns,
with the manure only to be removed by a licensed contractor who
will dispose of the manure off-site. Accordingly,
Respondent’s permit is classified as a non-discharge permit
that prohibits the proposed poultry farm from discharging its waste
into the surrounding environment. In sum, Petitioner’s
concerns with polluting discharges from Respondent’s proposed
facility are speculative and unsupported by the evidence in the
record and do not provide a basis for denying the permit in
question in this matter.
Conclusion
8. Based upon the
evidence presented at the hearing of this matter, I find that the
Department properly approved Respondent’s application for the
construction and operation of a poultry farm at 1862 Hudson Road in
Cope, South Carolina. In particular, the Department provided
proper public notice of Respondent’s application during the
application review process, approved a site for Respondent’s
proposed facility that complies with the set back requirements of
Regulation 61-43, Part 200, and minimized the potential for any
polluting discharges from the proposed facility by requiring the
farm to be a non-discharge facility. Petitioner’s
arguments to the contrary are generally unsubstantiated by the
evidence in the record and unsupported by the applicable law.
Therefore, Petitioner has failed to meet his burden of proving that
the Department erred in issuing Respondent’s agricultural
permit.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s decision to
issue Agricultural Permit Number 19,033-AG to Respondent Beverly
McPherson for the construction and operation of a poultry farm in
Orangeburg County at 1862 Hudson Road in Cope, South Carolina, is
SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
November 20,
2006
Columbia, South
Carolina
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