ORDERS:
DECISION AND ORDER
The Bureau of Water Pollution Control of The South Carolina Department of Health and
Environmental Control ("DHEC" or "Department") proposes to grant Construction Permit
#18047-AG to Baron Hendrix ("Hendrix") for construction of a waste treatment/collection
system for a turkey facility in Lancaster County. Petitioners Mr. and Mrs. Oscar C. Doster
("Dosters"), adjacent landowners, oppose the issuance of the permit and requested a contested
case hearing. The contested case was heard on May 1, 1996, with jurisdiction granted to the
Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600(B).
Upon review of
the relevant evidence and applicable law, the permit is granted, with additional restrictions
imposed.
Statement of The Case
DHEC issued a proposed Permit to Construct a growout turkey litter waste management
system
to Hendrix on January 24, 1996 (Respondent's Ex. #1). The permit is necessary for Hendrix to be
able to build a turkey facility which will include eight (8) turkey growout barns and will require
the treatment of approximately 6,500 tons of waste per year. The proposed permit, which
includes 20 special conditions, provides for a waste management plan (Respondent's Ex. #2) for
the storage and land application of the litter.
The Dosters own land adjacent to the proposed site of the Hendrix turkey facility. The
Doster
residence is approximately 1,000 feet from the footprint of the nearest proposed growout barn.
The Dosters oppose the issuance of the permit on the grounds that the proposed facility will cause
health problems to their family, and decrease the value and enjoyment of their property.
Petitioners' minor daughter, Anna Doster, suffers from chronic asthma, which requires her to take
medication through a breather machine and to often wear a mask while outdoors. Mitchell Baker,
Mrs. Doster's brother, also lives within approximately 1,000 feet of the proposed turkey facility.
Baker has two minor children who suffer from asthma and also require medication administered
by a breather machine. The Dosters and Bakers fear that the operation of the turkey facility in
such close proximity to their residences will aggravate the children's respiratory problems and
pose a health danger to their families.
Prior to issuance of the proposed permit by DHEC, the Lancaster County Zoning Board
approved
Hendrix's zoning request for clearance to construct and operate the proposed turkey facility. The
Board rendered its decision after conducting a public hearing at which the Dosters announced
their opposition.
DISCUSSION
A. DHEC's Authority to Issue Permit
The proposed project will produce animal wastes in the form of manure and dead animals.
DHEC
has general responsibilities for matters involving 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).
Persons are required to obtain approval of plans for waste disposal systems and acquire a permit
for the installation or operation of disposal systems. S.C. Code Ann. § 48-1-50(10) (1987).
Accordingly, a permit to construct the proposed facility is required from DHEC, and limitations
may be imposed upon the permit. S.C. Code Ann. §§ 48-1-10(12); 48-1-10(4), (5),
and (6)
(1987). The installation or operation of the disposal systems are subject to the conditions set
forth in the permit. S.C. Code Ann. §§ 48-1-50(5) and 48-1-90(a) (1987).
B. DHEC Guidelines and Permit Restrictions
In agricultural permitting, DHEC relies upon informal guidelines for application review and
approval procedures. The written guidelines, entitled "Agricultural Facility Permitting
Requirements Of the Bureau of Water Pollution Control," dated December 1, 1994, are published
and available to the public. 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. While not legally binding, the
guidelines provide uniform procedures and criteria for the permitting process. The Hendrix
application was considered and approved by DHEC in a reasonable manner consistent with similar
applications.
The proposed permit contains 20 separate special conditions prescribed by DHEC which are
consistent with the Department's written guidelines. Reliance upon the interpretive guidelines
does not foreclose application of other standards which are consistent with the controlling statutes
and regulations and rationally related to health or environmental protection. Using sound
professional judgment, additional permit conditions may be imposed if their inclusion will
reasonably provide further health or environmental safeguards. Permits and licenses issued by the
State are granted and are to be used and enjoyed only so long as the restrictions and conditions
governing them are complied with. As the tribunal authorized to grant the issuance of a permit is
also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or
conditions on the permit or license. See Feldman v. South Carolina Tax
Commission, 203 S.C.
49, 26 S.E.2d 22 (1943).
C. The Dosters' Objections to the Permit
At the hearing, the Dosters voiced serious and legitimate concerns about the construction and
operation of a turkey operation adjacent to their home. The Dosters claim the proposed turkey
operation will produce excessive odor, noise, and flies. They presented evidence and expressed
the sincere opinion that the Hendrix farm is an unsuitable location for the proposed facility
because its operation will lessen their family's quality of health and life and decrease the value and
enjoyment of their home. While the Dosters presented justification for the imposition of additional
conditions upon the permit, they did not produce any reliable, probative evidence to persuade the
Court to deny the permit. The waste management plan contained in the proposed permit, with
minor revision, adequately addresses all applicable pollution protection considerations.
This tribunal's consideration of the Dosters' opposition to the issuance of the permit is limited
to
issues of environmental protection and pollution control. This Court must confine its examination
only to those issues specifically related to the construction of a waste treatment and collection
system for the storage and utilization of litter from Hendrix's proposed turkey operation. It is
beyond the scope of the Administrative Law Judge Division to intervene in local zoning matters
or to enjoin a potential future civil nuisance.
While DHEC's authority is broad, in the absence of a duty related to the health and welfare of
the
public, neither DHEC nor the Administrative Law judge Division is charged with the
responsibility of establishing the land use mix within an area. Land use decisions are primarily the
responsibility of the local zoning authority, which exercise wide discretion in decision making. See, Bear Enterprises v. County of Greenville, ___ S.C. ___, 459 S.E.2d
883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). Lancaster County
zoned the
Hendrix property to allow the construction and operation of the turkey facility upon a request by
Hendrix. The zoning decision by the Lancaster Zoning Board came after a public hearing in
which the Dosters participated and voiced opposition to the new zoning classification.
The special conditions in the permit give some protection to adjoining landowners from
nuisances
that may result from the turkey operation and require immediate abatement of any nuisance
created. The additional conditions imposed by this Order provide further protection. While
nuisances should be avoided, the primary control afforded by the permitting process is to prevent
unsanitary conditions which may create health or environmental hazards. Complaints to DHEC
about nuisances created by the Hendrix farm could result in administrative sanctions.
Additionally, if Petitioners are harmed by the operation of the facility, adequate remedies are
available through the civil courts of this State.
D. Additional Special Conditions On The Permit
Because several families live in close proximity to the proposed facility, including children
with
respiratory problems, it is reasonable to place restrictions on the proposed permit to protect those
residents from potential health hazards associated with the removal, storage, and transportation of
litter from the proposed facility. It is probably unavoidable that neighboring residents will, on
occasion, experience undesirable odors and fly problems. Odor and fly problems are at their
worst when manure and other wastes are being moved. It would be of great benefit to the
residents, with minimal hardship on the permittee, for the permittee to be required to give local
residents advance notice of when litter removal from a growout house and transportation of litter
from the facility for off-site land application are to occur.
Other additional minimal restrictions which may aid in eliminating or reducing fly and odor
problems are also imposed, such as requiring twenty-four hour repair of fly-creating conditions
and requiring the maintenance of vegetation as a buffer between the facility and residences. Also,
DHEC witnesses testified that while animal wastes will be stored on the facility site, no waste will
be disposed on site. That restriction should be reflected in the permit's conditions.
Findings of Fact
I find, by a preponderance of the evidence, the following facts:
- Baron Hendrix, of 505 Woodland Drive, Kershaw, South Carolina, seeks to construct and
operate a turkey farm in Lancaster County.
- Hendrix filed an application and waste management plan with DHEC for construction of a
waste treatment and collection system for a turkey farm operation to be constructed in
Lancaster County, South Carolina.
- The proposed turkey facility includes 8 (eight) growout houses with earthen floors topped
with
wood fractions.
- The site was inspected by DHEC and the Natural Resources Conservation Service
(NRCS).
- A waste management plan dated November 21, 1995, was developed for Hendrix by NRCS
Technician Fred E. Plyler, Jr. (Respondent's Ex. #2).
- The NRCS waste management plan was incorporated into the permit application.
- Notification letters of the proposed construction were sent to all landowners within 1,000
feet
of the proposed facility.
- DHEC initially received no objections to the project from adjoining land owners.
- The DHEC Department of Water Pollution Control deemed the application complete and
reviewed the construction permit application and waste management plan under DHEC
statutes and guidelines.
- 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. (1987 & Supp.
1995) as
implemented through guidelines entitled the "Agricultural Facility Permitting Requirements of
the Bureau of Water Pollution Control" (December 1, 1994).
- DHEC issued a state construction permit, #18,047-AG, to Hendrix on January 24, 1996, in
accordance with the construction plans, specifications, engineering report, and waste
management plan submitted by NRCS, and subject to certain special conditions imposed by
DHEC.
- By letter to DHEC dated January 31, 1996, the Dosters filed an objection to the issuance of
the permit and requested a contested case hearing.
- Upon receipt of the Dosters' objection, the matter was transmitted to the Administrative
Law
Judge Division, and a contested case hearing was conducted on May 1, 1996.
- Notice of the time, date, location, and subject matter of the hearing was given to all
parties.
- Hendrix seeks to construct eight growout houses that will house approximately 45,000
turkeys
per batch.
- The proposed facility will produce approximately 3.25 batches of turkeys annually.
- The turkeys will be raised over sawdust, shavings or brooder litter.
- The proposed operation will produce animal wastes in the form of manure and dead
animals.
- The proposed operation will produce approximately 2,000 tons of animal wastes per batch,
which equates to 6,500 tons annually.
- The litter will be removed from each of the growout houses once each year.
- According to the waste management plan, once litter is removed from a growout house, it
must be either immediately land applied as fertilizer or stored on site for future land
application.
- The proposed Waste Manangement Plan developed for Hendrix by NRCS provides for
storage
and land application of the animal wastes.
- No land application of manure will occur on site.
- The waste management plan requires the use of 597.8 acres of hayland, pasture, and
cropland
for application of the litter from the proposed turkey operation.
- Hendrix has the use of more than 597.8 acres of land for land application of the growout
litter.
- The closest land to be used for application of the turkey litter is at least one to two miles
from
the facility site.
- The Dosters own land adjacent to the proposed site of the Hendrix turkey facility and reside
approximately 1,000 feet from the footprint of the nearest proposed growout barn.
- Mitchell Baker and his family live within approximately 1,000 feet of the proposed turkey
facility.
- The Dosters and Bakers oppose the issuance of the permit on the grounds that the proposed
facility will cause health problems to their family, and decrease the value and enjoyment of
their property.
- Anna Doster, Petitioner's minor daughter, suffers from chronic asthma, which requires her to
take medication through a breather machine and to often wear a mask while outdoors.
- Two of the Baker children also suffer from asthma and require medication administered by a
breather machine.
- The Dosters operate a small private school in their home, under the auspices of an nonprofit
corporation chartered June 10, 1996, known as Jehovah's School of Wisdom.
- The Dosters and Bakers fear that the operation of the turkey facility in such close proximity
to
their residences will aggravate the children's respiratory problems.
- Prior to issuance of the proposed permit by DHEC, the Lancaster County Zoning Board
approved Hendrix's zoning request for clearance to construct and operate the proposed turkey
facility. The Board rendered its decision after conducting a public hearing at which the
Dosters attended and announced their opposition.
- During the site evaluation, plan review, and application consideration process, DHEC
utilized
internally formulated interpretive guidelines which 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.
- Consistent with the interpretive guidelines, DHEC incorporated twenty (20) special
conditions
into the Construction Permit designed to ensure proper operation of the waste management
facility.
- The permit restrictions provide adequate measures to control the times and manner of
spreading the manure.
- The permit restrictions provide adequate measures to control the maintenance and operation
of
the facility.
- The permit restrictions provide adequate measures to control the records required to be kept
by the operation.
- The permit restrictions provide adequate measures to control future changes in the operation
of the facility.
- The permit restrictions to control flies, pests, and odor are reasonable; however, additional
permit restrictions are necessary to adequately protect neighboring residents from potential
nuisances and health hazards associated with flies, pests, and odor.
- The proposed facility is a dry litter disposal system presenting no serious risk of water
pollution.
- A permit to operate the waste management system must be secured by Hendrix within ninety
(90) days of the completion of construction of the system.
- The permit to operate will include the same terms and conditions as the construction
permit.
Conclusions of Law
Based on The foregoing Findings of Fact, I conclude as a matter of law:
- Upon the filing of a request for a contested case hearing with DHEC, the Administrative
Law
Judge Division has jurisdiction over the issuance of environmental permits pursuant to S.C.
Code Ann. § 1-23-600(E) (Supp. 1995).
- 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).
- DHEC has general responsibility over matters relating 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).
- DHEC is authorized to require a party to obtain approval of plans for disposal systems for
animal wastes. S.C. Code Ann. § 48-1-50(10) (1987).
- 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).
- It is unlawful to construct or install a waste disposal system prior to approval of a waste plan
and issuance of a permit by DHEC. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1995).
- The discharge of animal wastes into the environment must only be done in compliance with a
permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).
- 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. CarolinaWater
Service, Inc. v. S.C. Public Service Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).
- 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 EnvironmentalControl, 292
S.C. 199, 355 S.E.2d 536 (1987).
- 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).
- "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).
- 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).
- 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 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217
S.E.2d 797
(1975).
- The guidelines utilized by DHEC are reasonable and fairly applied in the application review
process of the Hendrix permit application.
- 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
(1987).
- 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 (1987).
- 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.
- In accordance with S.C. Code Ann. §§ 48-1-30 and 48-1-100(B), DHEC
promulgated 24
S.C. Code Ann. 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 regulations and guidelines
explain the application, permitting procedures, criteria, and standards for a state construction
permit.
- The Special Conditions contained in the Permit give some protection to adjoining
landowners
in that they require, among other things, that any nuisance may require additional controls.
These Special Conditions 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, remedies are available through
the courts of this State.
- Petitioners failed to show by a preponderance of the evidence that State Construction Permit
#18,047-AG should not be issued. The construction permit was properly applied for by
Hendrix and reviewed by DHEC under all appropriate statutes and guidelines.
- Petitioners have shown by a preponderance of the evidence that State Construction Permit
#18,047-AG, as proposed, should be amended to include the following additional special
conditions:
a. Special Condition 11 must be amended to read as follows:
"Good sanitation shall be practiced and leaking waters shall be repaired within 24
hours to
reduce fly problems and prevent runoff from inside the houses. Any wastes wet enough to
cause fly or other problems shall be immediately removed from the houses and transported
off-site for disposal, if needed to eliminate the fly problem. The following maintenance
concerns will be addressed as needed to eliminate the fly problem and to keep the waste
system functioning as it was designed:
(a) Should any spillage occur during the removal or transportation of the
waste, the
permitee will take immediate steps to clean up the waste."
b. Special Condition 16 must be amended to read as follows:
"Dead turkeys must be disposed off-site in a manner approved in writing by
DHEC. Dead
turkeys shall not be disposed of or stored on site in any manner. If a massive die-off occurs,
notify the Department's twenty-four hour number, (803) 253-6488, at once."
c. Add new Special Condition 21, to read as follows:
"Animal waste shall not be disposed of or applied to land on the site, but shall be
removed
from the facility and transported off-site for proper disposal."
d. Add new Special Condition 22, to read as follows:
"The permittee shall maintain existing vegetation along property boundaries as a
buffer to
minimize odors from the outgrow houses and waste storage sites to residences on adjoining
lands."
e. Add new Special Condition 23, to read as follows:
"Prior to commencing litter removal from a growout house or to transporting litter
from the
facility for off-site land application, the permittee must give at least twenty-four hours
advance notice to all residents residing within fifteen hundred feet of the facility."
- Any issues raised in the proceedings or hearing of this case but not addressed in this Order
are
deemed denied. ALJD Rule 29(B).
ORDER
IT IS THEREFORE ORDERED that DHEC Construction permit
#18047-AG be granted to
Baron Hendrix, as amended with the following special conditions:
a. Special Condition 11 must be amended to read as follows:
"Good sanitation shall be practiced and leaking waters shall be repaired within 24
hours to
reduce fly problems and prevent runoff from inside the houses. Any wastes wet enough to
cause fly or other problems shall be immediately removed from the houses and transported
off-site for disposal, if needed to eliminate the fly problem. The following maintenance
concerns will be addressed as needed to eliminate the fly problem and to keep the waste
system functioning as it was designed:
(a) Should any spillage occur during the removal or transportation of the waste,
the
permittee will take immediate steps to clean up the waste."
b. Special Condition 16 must be amended to read as follows:
"Dead turkeys must be disposed off-site in a manner approved in writing by
DHEC. Dead
turkeys shall not be disposed of or stored on site in any manner. If a massive die-off occurs,
notify the Department's twenty-four hour number, (803) 253-6488, at once."
c. Add new Special Condition 21, to read as follows:
"Animal waste shall not be disposed of or applied to land on the site, but shall be
removed
from the facility and transported off-site for proper disposal."
d. Add new Special Condition 22, to read as follows:
"The permittee shall maintain existing vegetation along property boundaries as a
buffer to
minimize odors from the outgrow houses and waste storage sites to residences on adjoining
lands."
e. Add new Special Condition 23, to read as follows:
"Prior to commencing litter removal from a growout house or to transporting litter
from the
facility for off-site land application, the permittee must give at least twenty-four hours
advance notice to all residents residing within fifteen hundred feet of the facility."
AND IT IS SO ORDERED.
_____________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
August 5, 1996
Columbia, South Carolina |