SC Administrative Law Court Decisions

This contested case matter arises from the determination of the South Carolina Department of Health and Environmental Control ("Department") to grant construction permit #17,854-AG (the "1995 permit") to Neal Rogers ("Rogers") for the construction of a hog farm operation. Ilene Rogers, Enoch P. Rogers, Eleanor T. Page, Dannie R. Page, Ebb Rogers, Earl Gleason, Earl Gleason, Jr. and Sarah Gleason (collectively referred to as "Petitioners" unless individually referred to by name), landowners who own real property adjacent to or close to the proposed site, seek to have the decision by the Department to issue the construction permit reversed.

Upon request by the Petitioners, a contested case hearing was conducted on October 22 and October 23, 1997 at the Administrative Law Judge Division ("Division") Offices, Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina. The issues considered were: (1) whether there were applicable guidelines, statutes and regulations which had to be adhered to at the time the Department granted the 1995 permit to Rogers; (2) if there were applicable guidelines, statutes and regulations, whether they were followed in the permitting process; and, (3) whether the 1995 permit expired prior to the completion of the permitted facility.

Prior to hearing the case on the merits, the Respondents filed a Motion for Summary Judgment and Motion to Dismiss on the ground that the Division did not have subject matter jurisdiction. Arguments were heard on the motions on July 15, 1997 and briefs were subsequently filed with the court. By Order dated July 31, 1997, this court ruled that it had subject matter jurisdiction; further, it held that under minimum standards of due process, the Petitioners had the right to notice of the application and permitting process and the right to request a contested case hearing. Also, in the same Order, this court held that the Petitioners timely filed their requests for administrative review of the determination by the Department's staff to issue the 1995 permit. Neither actual nor constructive notice of the issuance of the 1995 permit were provided to Petitioners until February 13, 1997. Further, the Order stated that the filing of the petition for administrative review on February 27, 1997 satisfied the fifteen day filing requirement provided for in S. C. Code Regs. 61-72 § 201.

Upon careful consideration of the evidence and testimony presented at the contested case hearing, the applicable law, the arguments of counsel, and the reasons stated hereafter in the body of this Order, I find and conclude that the decision of the Department to issue Rogers the permit to construct # 17,854-AG is reversed.

Any issues raised in the proceeding or hearing of this case but not addressed in this Final Order and Decision are deemed denied. ALJD Rule 29 (B).

I make the following findings of fact by a preponderance of the evidence, after consideration of all the evidence, the burden of persuasion on the part of the Petitioners and taking into account the credibility of all the witnesses:

General

1. Notice of the date, time, place and nature of the hearing was timely given to all parties.

2. Neal Rogers owns approximately one hundred (100) acres of land in the Fork community of Dillon County, South Carolina, on which a hog farm has been operated continuously from the 1950s until approximately October 1994 (the "Farm"). Rogers also conducts logging activities on his Farm. He had heavy equipment on his Farm during the summer of 1995.

3. Enoch P. Rogers, along with his mother, Ilene K. Rogers, his sisters, Dannie Page and Tommie Page and his brother, Ebb Rogers, each have an interest in an approximately one hundred (100) acre farm (the "Rogers Farm"), which adjoins the Farm owned by Neal Rogers.

4. The Rogers Farm consists of pastures, swamps and woodland and is bounded by the Little Pee Dee River on one side.

5. Neal Rogers has leased and farmed portions of the Rogers Farm for the past twenty- five years.

6. Prior to 1995, hog effluence would seep from the hog operation conducted on the Farm into a ditch running from the Farm into the the Little Pee Dee River.

7. There is a swampy area adjoining the Little Pee Dee River which is within five hundred (500) feet of the lagoon located on the Farm.

8. Prior to 1972, Rogers did not confine the hogs on his property in buildings; they ranged around an old pond on the southern end of the Farm.

9. During the time the Farm was being operated as a hog operation prior to 1995, flies and odor from the hog operation were offensive to Enoch P. Rogers and his family members who owned the Rogers Farm. They are now objecting to the 1995 permit due to the probable and potential onslaught of flies and odor which will be associated with the hog farm operation.

Notice of the Permitting Process

10. Sarah Gleason resides with her husband, Earl Gleason, on property they own in the Fork Community of Dillon County, South Carolina. Her son, Earl Gleason, Jr, also owns real property and lives in the Fork Community; his property adjoins the property of Rogers.

11. Mrs. Gleason, in the latter part of January 1997, learned from neighbors in the community that Rogers was planning to sell his property to a large hog farming operation. Later, she learned that the name of the potential purchaser was C & M Hog Farms, LLC ("C & M").

12. Upon request to the Department, on February 13, 1997 Mrs. Gleason received a copy of the 1995 permit by facsimile from Jason Gillespie of the Department. Prior to that date she had neither actual or constructive knowledge that Rogers intended to apply to the Department for a construction permit to operate a hog farm, that the Department had issued a construction permit to Rogers to construct or expand a lagoon, or that Rogers had in fact constructed a lagoon in the summer of 1995.

13. There is a hill located between the properties of Mrs. Gleason and Rogers which obstructs her view of Rogers' Farm. It is difficult to see the Farm from her property and it would have been difficult for her to observe the construction of a lagoon on the Farm.

14. No notice of intent to construct this operation was published in a newspaper of general circulation to residents in the community.

15. None of the adjoining landowners whose property lines fall within 1,000 feet of the proposed facility were notified by either the Department or Rogers of the submission of the application, of the application process, or of the issuance of the permit to construct dated March 23, 1995. No notification letters were sent to adjoining landowners, either by the Department or by Rogers; no public notice was given; nor were any signs placed on the subject property to notify landowners in the general area of the proposed construction.

16. On February 27, 1997, Petitioners filed a request for a contested case hearing concerning the transfer of the permit from Rogers to C & M and the original issuance of the 1995 permit.

17. The request for the contested case hearing to review the determination by the Department to issue the 1995 permit was filed with the Department within fifteen (15) days of actual or constructive notice of the issuance of the permit.

Construction Permit # 5300 ("1978 permit")

18. On April 26, 1978, the Department issued construction permit # 5300 to Rogers authorizing the construction on his property of a new waste water treatment and/or collection system, which included the construction of a lagoon. The system could accommodate and treat waste from a maximum of 40 sow and litter, 85 sow-gestation, and 500 finishing hogs. From that date forward, hogs were confined in a structure which was built north of the lagoon; however, on occasion hogs were allowed to range openly on the Farm. This permit had no expiration date on its face.

19. There is no evidence that Rogers ever submitted a written request for re-issuance of the 1978 permit pursuant to S.C. Code Ann. Regs. 61-9(16) and (17) (1976), nor is there any evidence that the Department enforced the regulation.

Closed Facility v. Existing Facility/Permitting Process

20. Rogers argues that the hog farming business remained in continuous operation, except for several minor stoppages, between the years 1978 and 1994. However, inspection reports of the Department, which were admitted into evidence at the hearing, verify that on several occasions during this period Rogers was not conducting a hog farm operation at the Farm, nor were there any hogs at the location when it was inspected. Further, an affidavit signed and filed by Rogers with the court indicated that the Farm ceased operation in 1994.

21. Pursuant to provisions contained in a contract executed between Rogers and Carroll's Foods in September 1994, Rogers was to manage, maintain and grow hogs on the Farm, which would be supplied by Carroll's Foods. As part of the terms of the contract, Rogers was required to discontinue the hog farming activities at the Farm for a period of six (6) months to ensure no disease could be transferred to any hogs which were placed there pursuant to the contract.

22. In addition, under the terms of the contract, Rogers was required to accommodate approximately 3,520 finishing hogs.⁽¹⁾ This provision required Rogers to make improvements to the physical facilities at the Farm, since his existing facility was only designed to accommodate a maximum of 500 finishing hogs.

23. Since Rogers wished to resume the raising of hogs on his Farm, on December 21, 1994, he applied to the Department for a construction permit.

24. Rogers submitted the application, together with a Waste Management Plan prepared by Charles E. Martin, field engineer for the Natural Resource Conservation Service ("Service"), Florence, South Carolina, to the Department during December 1994.

25. The application was reviewed by staff within the Department's Division of Water Pollution Control. Subsequently, the Department issued construction permit # 17,854-AG to Rogers on March 23, 1995 ("1995 permit"). The permit authorized Rogers to construct a lagoon which would accommodate 3,520 finishing hogs. The permit also authorized the following:

1. construction of four (4) buildings to house 880 finishing hogs, each to have 180 day storage;

2. land application of any excess wastewater;

3. construction of a wastewater treatment and/or collection system to treat waste generated by 475,200 pounds of finishing pigs steady weight.

26. The 1995 permit provided that construction was to begin prior to September 30, 1995 and be completed by March 25, 1996. Otherwise, the permit would be invalid.

27. During the application process, the Department treated the Farm as an existing facility rather than a new facility. Further, the Department did not consider in the application and review process the site selection criteria contained in the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" manual (December 1, 1994) ("guidelines").

28. Henry Gibson is a former manager of the agricultural Waste Water Division of the Department; he is now retired. Since his retirement, he has been employed as a consultant with the Department. He testified that he was a full time employee with the Department during the permitting process of the wastewater facility on Rogers' Farm. He also testified that when Rogers filed the 1994 application with the Department, the hog farm was treated by the Department as an existing facility rather than a new facility, and that the Department treated the application as a request for an expansion of an existing facility.

29. Mr. Gibson testified that the December 1994 Agricultural Permitting Guidelines were controlling for the issuance of permits for wastewater management facilities at the time the 1995 permit application was submitted by Rogers; however, he stated that they were not applicable to the 1995 permit, nor were they utilized by the Department in its issuance of the 1995 permit to Rogers.

30. Jason Gillespie, current head of the Agricultural Waste Water Division of the Department, also testified that the 1994 application by Rogers was treated by the Department as a request for an expansion to an existing facility.

Construction Process

31. In April 1995, Rogers contracted with Goodyear Construction Company of Fairmont, North Carolina ("Goodyear Company") to construct an expansion to the swine waste lagoon according to the designs and specifications prepared by the Service and as contained in the Waste Management Plan. The Waste Management Plan is incorporated into the 1995 permit.

32. Goodyear Company completed the digging of the expanded lagoon for Rogers in the spring of 1995. Goodyear Company finished the physical construction of the lagoon on or about June 30, 1995. No final inspection of the lagoon was made by the Service at that time. The four barns authorized by the permit were not constructed by June 30, 1995, nor were they completed as of the date of the hearing in this case.

33. The lagoon was constructed within one thousand (1,000) feet of common boundary lines with various neighbors, including the Petitioners. However, it is more than one thousand (1,000) feet in distance from the nearest residence.

34. Rogers argues that the expansion of the lagoon equates to the completion of the waste collection and treatment system prepared by the Service.

35. Rogers testified he was unable to resume agricultural activities at the Farm immediately after the completion of the expansion to the lagoon because of health reasons. However, notwithstanding the completion of the expansion to the lagoon, Rogers, believing that it was necessary and required, asked for and received from the Department several extensions of the permit to provide for the completion of the construction of the project.

Certification of Completion of Construction

36. Upon completion of the construction as authorized pursuant to the 1995 permit which was issued by the Department, Rogers was required to provide to the Department a Certification of Construction ("Certification"). The Certification is that physical proof which the Department requires to ensure that the construction of a waste management facility has been completed. In its absence, the Department has no knowledge of its completion according to the plans and specifications prepared by the design engineer and as approved by the Department's staff. The Department does not consider the waste management system complete until the Certification has been completed and filed with the Department.

37. The inspection and certification of the construction of the facility at the Farm was to be conducted and prepared by a representative of the Service. In such cases, the Service certifies that construction has been completed in accordance with the approved Waste Management Plan.

38. Only upon receipt of a certification does the Department grant final operational approval for a facility.

39. The operational approval by the Department for the waste management plan and facility of Rogers could only have been issued if an inspection had been made by staff of the Service and it had been certified to the Department.

40. The Service never conducted an inspection nor certified to the Department that the waste management facility on Rogers' property had been completed per the plans as drafted by the Service and as approved by the Department. Without such certification, no final operational approval can be given.

41. The Department has never given its final operational approval for the waste management facility at the Farm pursuant to the 1995 permit.

Negotiation of Sale of the Farm

42. On June 25, 1996, Rogers was granted an extension of the 1995 construction permit in order to complete construction of the waste management facility at the Farm. The date for completion was extended through January 30, 1997.

43. During this period Rogers negotiated with C & M for the sale of the Farm and the transfer of the 1995 construction permit to C & M.

44. Pursuant to a request made by both Rogers and C & M, on February 13, 1997 the Department transferred the 1995 permit to C & M. In authorizing the transfer of the permit, Marion Sadler of the Department granted an extension of the expiration date of the 1995 permit to July 30, 1997. The extension was granted to provide sufficient time for C & M to complete construction as required by the 1995 permit, to obtain the inspection by the Service and to obtain final operational approval by the Department.

45. On March 13, 1997, after the filing of a request for a contested case hearing by the Petitioners, C & M notified the Department of the withdrawal of its request for the transfer of the 1995 permit.

46. By letter dated March 26, 1997, the Department notified Rogers that he was the permittee under the 1995 permit. Pursuant to a written request to the Department by letter dated April 2, 1997, Jason Gillespie of the Department sent a letter on April 3, 1997 to Rogers granting an additional extension of the 1995 permit to September 1, 1997, to provide additional time for the completion of the construction of the wastewater facility.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

General Conclusions

1. The Administrative Law Judge Division has jurisdiction to conduct hearings concerning the issuance of environmental permits pursuant to S.C. Code Ann. § 1-23-600 (B)(Supp.1996). Prior to the passage of Act 181 of 1993, the Department hired hearing officers to conduct these contested case hearings. S. C. Code Ann. §§ 48-1-50, 48-1-150 and 48-1-160 (1976). Now, an Administrative Law Judge serves as the trier-of-fact during the contested case hearing process and issues a Final Decision and Order as required by the Administrative Procedures Act, S.C. Code Ann. § 1-23-350.

2. The standard of proof in weighing the evidence and making a decision on the merits of a case at a contested case hearing is the preponderance of the evidence. National Health Corp. v. S.C. Dept. of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. The permit at issue in this case was issued to Rogers pursuant to the provisions of the South Carolina Pollution Control Act ("Act"), S.C. Code Ann. §§ 48-1-10, et seq. (1987 & Supp. 1997), which requires that a permit be issued by the Department prior to construction of a waste management facility and any discharge of waste from that facility to the environment. S.C. Code Ann. § 48-1-90(a) provides as follows:

It shall be unlawful for any person, directly or indirectly, to throw, drain, run, allow to seep or otherwise discharge into the environment of the State organic or inorganic matter, including sewage, industrial wastes and other wastes, except as in compliance with a permit issued by the Department.

(Emphasis added). In addition, other provisions of the Pollution Control Act require the issuance of a permit by the Department prior to construction or installation of a disposal system or changes to existing disposal systems, and grant the Department the authority to issue such permits and to require applicants for such permits to obtain approval of plans for the proposed disposal system. See S.C. Code Ann. §§ 48-1-110(a); 48-1-50(5) and (10) (1987).

4. 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 and other wastes," as provided in Sections 48-1-10(12) and 48-1-90(a), are broadly defined and encompass dead animals and manure resulting from the operation of a hog facility. S.C. Code Ann. § 48-1-10(4), (5) and (6) (1987). Thus, the operation of Rogers' proposed facility, which inherently requires the discharge of vast amounts of organic animal waste into the environment, is unlawful except as authorized by a permit issued by the Department. Absent a valid permit, the activity proposed at the Rogers Farm is prohibited.

Effect of Absence of Substantive Regulations Governing Permits

5. Under the provisions of the Act, the Department is required to promulgate regulations⁽²⁾ to implement the provisions contained therein. S. C. Code Ann. § 48-1-30 (1987). The regulations must establish binding norms or standards. The section is titled "Promulgation of regulations; approval of alternatives." The statute does not state that the regulations are to be procedural in nature only. It reads that the Department "shall promulgate regulations to implement this chapter to govern the procedure of the Department with respect. . . to the issuance of permits . . . ." (Emphasis added). The legislature recognized the need for the Department to issue regulations that would be substantive ⁽³⁾ in nature and which would contain criteria governing the issuance of all the various permits for which the Department has authority under Title 48. Furthermore, the statute does not give the Department the discretion to decide whether or not to promulgate regulations, but instead mandates their promulgation. The word "shall", when used in a statute, should be construed as mandatory language, in the absence of something in the statute which shows that the legislature intended otherwise. 1960-61 Op. S. C. Att'y Gen. 247.

A thorough reading of the Act makes it clear that the legislature intended for the Department to promulgate substantive regulations. For instance, S.C. Code Ann. § 48-1-100 (A) (Supp. 1997) provides:

A person affected by the provisions of this chapter or the rules and regulations adopted by the department desiring to make a new outlet or source; or to increase the quantity of discharge from existing outlets or sources, for the discharge of sewage, industrial waste or other wastes, or the effluent therefrom, or air contaminants, into the waters or ambient air of the State, first shall make an application to the department for a permit to construct and a permit to discharge from the outlet or source. . . .

(Emphasis added). In addition, S. C. Code Ann. § 48-1-100 (B) reads as follows: "The Department of Health and Environmental Control is the agency of state government having jurisdiction over the quality of the air and waters of the State of South Carolina. It shall develop and enforce standards as may be necessary governing emissions or discharges into the air, streams, lakes, or coastal waters of the State, including waste water discharges." (Emphasis added). Finally, S.C. Code Ann. § 48-1-50 (5) (1987) provides that the Department may issue permits "under such conditions as it may prescribe. . . for the installation or operation of disposal systems. . . ." (Emphasis added).

Moreover, the Department itself has acknowledged its statutory mandate to promulgate substantive regulations. In the synopsis accompanying the Department's new agricultural animal facilities regulations, which became effective June 26, 1998, the Department states that "[t]he Pollution Control Act states that except in compliance with a permit issued by the Department, it is unlawful for a person to discharge wastes into the environment [citation omitted]. The Act mandates the Department to promulgate regulations to implement the Pollution Control Act." South Carolina State Register, Vol. 22, Issue 6, Part II at 1 (emphasis added).

6. Notwithstanding the legislative mandate to promulgate substantive regulations, no regulations detailing substantive guidelines or requirements⁽⁴⁾ for agricultural facility permitting and the waste disposal systems for swine facilities were ever promulgated by the Department or presented to the General Assembly for adoption until September 21, 1997. This only occurred after the passage by the legislature in 1996 of the Confined Swine Feeding Operation Act, S.C. Code Ann. §§ 47-20-40, et seq. (Supp. 1997). This act specifically requires the Department to promulgate regulations for the permitting of confined swine feeding operations. It also contains detailed siting criteria and other conditions to be placed into these regulations. However, at the time of the issuance of the 1995 permit, no criteria existed in statutory form or by regulation which outlined the specific factors which had to be considered or complied with prior to the issuance of a waste water treatment/collection facility/system permit by the Department.

7. Where the General Assembly has expressly mandated that an agency promulgate regulations to govern the permitting process, agency action in issuing such permits in the absence of such regulations is invalid. As a creature of statute, a regulatory body is possessed not only with expressly conferred powers but also those powers necessarily inferred or implied to enable it to effectively carry out and 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); Carolina Water Service, Inc. v. South Carolina Public Service Comm'n, 272 S. C. 81, 248 S. E. 2d (1978); Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S. C. 488, 413 S. E. 2d 13 (1991) (Coastal Council overstepped its statutory authority in formulating and applying test for purposes of permit evaluations without formalizing it by regulation); Charleston Television, Inc. v. South Carolina Budget and Control Board, 301 S. C. 468, 392 S. E. 2d 671 (1990)(Board's failure to promulgate regulations for competitive bidding as mandated by statute rendered agency's lease approval invalid). 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 585 (1948). The issuance of permits by the Department, in the absence of enforceable regulations providing standards for their approval and implementation, not only may exceed the Department's delegated authority as an agency, but also may contravene substantive Due Process rights of the Petitioners and other affected persons since it subjects them to unrestrained and unregulated impacts on their quality of life and use of their property . See Stono River Environmental Association v. South Carolina Department of Health and Environmental Control, 305 S.C. 90, 406 S.E.2d 340 (1991); City of Florence v. George, 241 S.C. 77, 127 S.E.2d 210 (1962).

Applicability of the Permitting Guidelines

8. Assuming, arguendo, that the Department may lawfully issue permits without having complied with the statutory mandate to promulgate regulations, further inquiry as to the effect of the Department's permitting guidelines on this case is warranted. In the absence of regulations, the Department has issued two guidance documents for the permitting of confined animal facilities such as the Rogers Farm: the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina" in April 1985 and the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" in December 1994. Although these guidelines were never promulgated nor approved by the General Assembly as required by the South Carolina Administrative Procedures Act, S.C. Code Ann. § 1-23-120, they are routinely provided by the staff of the Department to each applicant for an agricultural facility permit. Since the guidelines were prepared and distributed to permit applicants as an official document by the Department, they represent the policy of the Department concerning agricultural permits.

Taking these guidance documents to be "policy statements" for agency guidance rather than as rules establishing externally binding norms, see Home Health Service, Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375, 378 (1994), they nonetheless represent the Department's considered interpretation of the permitting requirements of the South Carolina Pollution Control Act for the review of applications for confined animal waste management facilities. A question remains, therefore, as to the applicability of these guidelines to this case and as to the weight which should be afforded them in these proceedings.

9. Rogers and the Department contend that the guidelines are not applicable to the Rogers application, since the Rogers facility was treated as an "existing facility" by the Department. Therefore, Rogers was not required to give notice to his neighbors of the application, nor was the facility required to meet the requirements of the guidelines. However, I conclude that the Department should have treated the Rogers facility as a new facility, for several reasons.

First, Rogers' initial permit was issued in 1978. At that time, 24 S.C. Code Ann. Regs. 61-9 (1976) provided for the issuance of both NPDES permits to discharge wastes into the waters of the State (which are not applicable to this case), and State permits to construct and operate a "treatment works" from which no discharge would occur. A "treatment works" included any lagoon installed for the purpose of treating, neutralizing, stabilizing, or disposing of sewage, industrial waste or other wastes. 24 S.C. Code Ann. Regs. 61-9 §1(32), (35). Accordingly, the Rogers permit was a "State permit" as defined in Regs. 61-9. The regulation provided, inter alia, procedures for applying for State permits, and further provided for the duration of such permits. 24 S.C. Code Ann. Regs. 61-9 § 16 stated that "[a] State or NPDES permit issued pursuant to the State law and this regulation shall have a fixed term which shall not exceed five (5) years. A person who wishes to continue to operate under such permit shall apply for re-issuance of a permit pursuant to Paragraph 17." (Emphasis added). Paragraph 17 provided that a permittee who wished to continue to operate under a State permit had to submit a written request to the Department for re-issuance at least 180 days prior to the expiration of the permit.

Although the 1978 Rogers permit contained no expiration date on its face, by operation of Regs. 61-9, which had the force and effect of law, it expired in five years from the date of issuance, unless Rogers applied to the Department for re-issuance of the permit. There is no evidence that Rogers ever did so. Instead, he merely continued to operate the hog farm. I conclude, therefore, that Rogers' 1978 permit expired in 1983, well before the Department issued the 1995 permit. Accordingly, Rogers' 1995 application should have been treated as an application for a new facility, and the Department should have used the guidelines in evaluating the application.

Second, even if the previous permit had not expired, Rogers admitted that he ceased operation of the hog farm sometime in 1994. While Rogers asserts that he intended to continue operations and was merely interrupting operations at the request of his supplier, the uncontradicted evidence indicates that on several prior occasions when Department representatives inspected the facility, they found that it was not in operation. Moreover, the 1995 application sought a major change in the size of the operation--including the construction of a new lagoon and buildings and the accommodation of 3,520 finishing hogs as opposed to 40 sow and litter, 85 sow-gestation, and 500 finishing hogs. I therefore conclude that Rogers' 1995 permit application should have been evaluated as a new application.

Furthermore, although the Department asserts that the guidelines are inapplicable to "existing facilities," there are many references throughout the guidelines to applications for expansions or renovations of existing facilities. For example, the 1985 guidelines, at "Permits," page 14, paragraph A, state that a "State Permit to Construct" is required "before construction of a new waste treatment system or alteration to an existing system." Moreover, the 1994 Permitting Guidelines set forth requirements for site selection of the facility, placement of lagoons and storage ponds, and waste management plans. These requirements specifically apply to both new and existing facilities, and mention the importance of proper site selection in order to minimize problems for the owner of the facility, the community, and the Department. In addition, even though the Department contends that the "Permitting Procedures" in the 1994 guidelines were inapplicable in this case, it is clear that the Department did follow some of the procedures in the guidelines, including a site inspection and the development of a Waste Management Plan. Thus, the Department implicitly recognized that the guidelines applied to Rogers' application.

10. Having concluded that the guidelines apply in the evaluation of Rogers' permit application, it is necessary to determine what weight should be afforded the guidelines in these proceedings. As previously stated, the guidelines represent the Department's interpretation ⁽⁵⁾ of the permitting requirements of the South Carolina Pollution Control Act for the review of applications for confined animal waste management facilities. As such interpretations of the statutory mandate, these "Guidelines" and "Permitting Requirements" are entitled to consideration by this court along with other factors. However, if the Department is going to publish guidelines, it owes a duty to the general public to abide by them and should not act arbitrarily in failing to follow its own guidelines and requirements in the permitting process. See 330 Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538, 540 (Ct. App. 1992); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E. 2d 531, 533 (1987); S.C. Code Ann. § 1-23-380(A)(6)(f). The Administrative Law Judge, in making the final administrative decision pursuant to the Administrative Procedures Act, will consider as part of the evidence any guideline published by the Department. However, since the guidelines do not have the full force and effect of law and have not been presented to the General Assembly for its approval, they do not establish a binding norm and may only be considered together with all other relevant factors in determining whether a permit should be granted.

Site Selection Criteria

11. The guidance documents recognize that proper site selection is the primary means for minimizing the likelihood of offensive nuisance odors associated with animal confinement facilities. In pertinent part, the guidelines set forth "Site Selection Criteria" for all facilities managing animal wastes, and specify "[f]actors that could have an effect on site selection." Guidelines at 14. These factors include "[d]istance from dwellings (public and/or private) on adjacent property. Transport nuisance, i.e.: odor, dust, noise, etc.," "[p]revailing winds," and "[s]urface features (Topography of land surface." Id. at 15. These are clearly factors that require evaluation and judgment in their application to a particular site since they do not set forth objective standards for acceptability. However, the "Site Selection Criteria" also include a pertinent setback provision which does establish an objective and measurable acceptance standard: "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)." This standard offers the obvious benefit to an adjoining landowner of assuring a minimum buffer to alleviate the impacts of nuisances from the facility, as well as requiring that the facility owner, who stands to profit from the operation, provide the necessary buffer on facility property. In order for the issuance of the Rogers permit to be valid, a preponderance of the evidence must establish that the site for the proposed facility comports with these siting criteria.

With respect to the 1,000 foot siting standard, the plain and unambiguous language of the Site Selection Criteria requires that the production unit--here, the buildings where the swine will be housed--be located at least 1,000 feet from the lot line or property line of the facility site. This obvious meaning is reinforced by the "Note" that an exception for neighboring owners of property within the 1,000 foot setback is to be based upon the execution of a written waiver of the protection of the standard by the signing of an attached "approval/disapproval" form. The earlier version of this standard in the 1985 Guidelines employed virtually identical language and appended a form, Annex C, at 39, which, after giving notice of the facility "within 1,000 feet of my property line" seeks a written and witnessed waiver, "I have no objection to this." Here, the uncontroverted evidence indicates that the proposed Rogers facility is to be located a mere 200 feet from neighboring property lines and no written waiver or approval has been executed. This location directly contravenes the unambiguous and objective 1,000 foot standard contained in the Department's guidelines. The Guidelines as utilized by the Department are reasonable. However, they were not applied in this case. The Department chose to ignore them, treating the expansion of the lagoon as an exception to them.

12. Where the language of a statute or other standard is plain and unambiguous, and conveys a clear and definite meaning, Department staff have "no right to look for or impose another meaning," or to "resort to subtle or forced construction in an attempt to limit or expand [its] scope." Paschal v. State Election Comm'n, 317 S.C. 434, 454 S.E.2d 890, 892 (1995); Sutherland, Statutory Construction, 5th ed., Section 46.01, "The Plain Meaning Rule." I reject the Department's "subtle or forced construction" of the 1,000-foot setback standard in attempting to limit the standard to a mere notice requirement, regardless of the Department's apparent practice of substituting such a notice for the waiver form actually specified in the siting criteria. The Department may not grant a permit for a facility in violation of its own objective criterion. Concord and Triska, supra.

Alternately, viewing the 1,000-foot setback as, somehow, less absolute and simply one of several siting criteria that the Department must consider in deciding on the appropriateness of a proposed site for an animal waste facility, I nonetheless conclude that a clear preponderance of the evidence in this record requires permit denial. The Department's decision to treat the permit as one for an "existing facility," thus ignoring the guidelines, and its decision to issue the permit in violation of the setback standard evidences a total disregard by the Department of its own regulations, guidelines and criteria. The evidence fails to establish that the Department took any steps to assure that the location of the Rogers facility would prevent or minimize nuisance impacts on nearby residents in accordance with the guidelines.

13. I find and conclude that the evidence in this record requires denial of the permit and that the Department's decision to issue the Rogers permit was arbitrary, capricious and an abuse of discretion in light of the overwhelming probative evidence of the proposed site's failure to comport with the Department's own siting criteria and of the potential adverse impact on the health and welfare of neighboring residents. The evidence fails to establish that the Department assured that the location of the Rogers facility minimizes, let alone prevents, nuisance impacts on nearby residents in accordance with its own guidelines. The evidence clearly establishes- without serious dispute- that pungent odors will routinely be generated during the normal, proper, operation of this facility. The offensive and undesirable character of such odors is beyond serious question as reflected by the testimony of witnesses living near the existing Rogers hog farm. Even optimal management practices will not eliminate these normal odors associated with the hog farm.

14. Further, no evidence whatsoever was offered by the Department or Rogers to warrant departure from the 1,000 foot setback standard and to justify a mere 200 foot buffer in its place. If, as the Department suggests, the 1,000 foot standard is a guideline to be departed from, there is simply no evidence justifying such a radical reduction of this important consideration and protection. The Department's failure to rationally evaluate this proposed site against its own express siting criteria or to offer probative evidence justifying departure from these standards represents arbitrary and capricious agency action and an abuse of agency discretion and warrants denial of the permit.

Expiration of the 1995 Permit

15. Even if the Department had properly followed its guidelines in the issuance of the 1995 permit to Rogers, the evidence clearly establishes that the permit expired prior to completion of the facility. The permit issued to Rogers on March 23, 1995, described the project as "(1) Construction of four (4) buildings to house 880 finishing pigs each with 180 day storage. (2) Land application of excess wastewater. (3) Other conditions as stated in waste management plan. (4) Treat waste generated by 475,200 lbs. of finishing pigs steady weight." The permit further stated on its face that "[u]nless construction begins prior to September 30, 1995, and construction is completed prior to March 22, 1996, this permit will no longer be valid." It is undisputed that, although construction of the lagoon was completed in the summer of 1995, construction of the buildings has never been completed, nor has Rogers been issued a certification of completion by the Service.

It is the responsibility of the Department to ensure that present threats, whether real or potential, to the health of the people of the State of South Carolina, including the handling and disposal of animal wastes, are addressed and reviewed in the permitting process. The General Assembly has directed the Department to require parties to obtain approval of plans for disposal systems for such wastes. A permit may be encumbered with numerous conditions which must be met both before the operation begins, during its continued existence and during the continuation of the facility operation. It is the responsibility of the Department to ensure that the minimal amount of waste is discharged into either the air or into the ground.

In accordance with this responsibility, when the Department reviews plans for a facility, it not only reviews the disposal system which may consist of lagoons and water and drainage systems, but it is also concerned with the layout of the buildings which will house the swine. The construction of the buildings according to the plans and specifications is specifically made a part of the construction permit. Wastes and odors can escape from the houses and from the disposal systems which are located within them. The facility must be properly constructed to minimize any such odor problems. Thus, the Department, through the written permit, requires the applicant to construct the houses according to the plans. No final certification for the startup of any swine operation may or will be authorized by the Department until all conditions contained within the permit, including the completion of both the buildings and the waste disposal systems, have been complied with, and the certification of completion has been given by the Service to the Department. Accordingly, the facility is not "complete" until the certification is given to the Department.

In this case, Rogers' permit was issued on March 23, 1995, and provided on its face that it would expire unless construction of the facility was completed before March 22, 1996. The uncontroverted evidence indicates that the construction of the facility has never been completed. Thus, the permit expired on March 22, 1996, unless Rogers applied for an extension prior to the expiration date. The only evidence relating to Rogers' extension is a letter from William F. Stokes of the Department, which is dated June 25, 1996. This letter refers to Rogers' request for an extension on his construction permit deadline, which was dated May 28, 1996--over two months after the March 22, 1996 expiration date. Therefore, the permit had already expired and the Department should have required Rogers to submit a new application under the rules and regulations then existing. Its failure to do so renders the permitting process in this case fatally flawed and warrants denial of the permit.

Evaluation of Other Factors

16. Independent of the siting criteria reflected in the guidance documents, it is imperative that this court consider all relevant factors in determining whether this permit should be issued. Accordingly, this court must consider whether the grant of the permit will create an operation which will unreasonably interfere with and damage Petitioners' and other neighboring residents' enjoyment of life, interfere with and impact their health, and interfere with the use and enjoyment of their property. The Department and Rogers argue that the Administrative Law Judge Division does not have jurisdiction in an action to grant or deny an agricultural permit to consider the emanation of offensive odors as an interference with the use and enjoyment of Petitioners' properties; that it can only consider the totality of the factors, which are limited to issues of environmental and health protection and pollution control. However, this argument fails to recognize that these odors are themselves a threat to the health and welfare of the Petitioners as well as to Petitioners' use and enjoyment of their property. The Department itself has recognized that "nuisance factors" should be considered in the permitting process, as such factors appear throughout the Department's permitting guidelines. Accordingly, no distinction can be drawn in this case between the consideration of the effect of odors and dust emissions on the Petitioners' health and welfare and the effect of those same factors on the Petitioners' use of their property.

17. The Department is principally charged with assuring the health and welfare of the public by controlling air and water pollution. While the Department's authority is broad, in the absence of a duty related to the health and welfare of the public, the Department is not charged with the responsibility of establishing the land use mix within an area. See S. C. Code Ann. § 48-1-20 (Supp. 1997). Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). However, I conclude in this case that the proposed facility poses an impact upon the health and welfare of the neighbors of Rogers. Therefore, the Department has the duty to consider land use factors prior to issuing a permit. I conclude that the granting of this permit and the operation of this facility at the proposed location will unreasonably interfere with neighboring residents' health and damage their enjoyment of life and the use and enjoyment of their property. Lever v. Wilder Mobile Homes, 283 S.C. 452, 322 S.E.2d 692, 693 (Ct. App. 1984) (it is a nuisance to use property in such a way that annoying or injurious odors are emitted). Further, the undisputed evidence in this record establishes that this anticipated nuisance "is inevitable from the proposed use of the premises or will necessarily result." Such nuisance impact is neither "doubtful, contingent, or conjectural." Roach v. Combined Utility Comm'n of the City of Easley, 290 S.C. 437, 351 S.E.2d 168 (Ct. App. 1986); Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 (1962). As a matter of law, the Department may not authorize a nuisance and is required to suppress nuisances dangerous to the public health. S.C. Code Ann. § 44-1-140.

Conclusion

18. The Department is no less responsible under the Pollution Control Act for regulating and controlling the discharge of waste from the Rogers facility, including odors, gases, dust, pathogens and other airborne contaminants, flies and rodents, than for regulating any other pollutants which are injurious to human health, welfare and the environment. "The State of South Carolina has a substantial interest in maintaining reasonable standards of purity of the air and water resources of the State." S.C. Dep't of Health and Envt'l Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302, 304-305 (Ct. App. 1987). The Department "is authorized to take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens," id., 359 S.E.2d at 305, and may "issue, deny, revoke, suspend or modify permits, under such conditions as it may prescribe for the discharge of sewage, industrial waste or other waste or air contaminants or for the installation or operation of disposal systems or sources or parts thereof." S.C. Code Ann. § 48-1-50(5). Moreover, an agency decision must be reached utilizing reasoned judgment and must be based upon adequate determining principles and a rational basis. Deese v. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985). In this case, the Department failed to fulfill its responsibilities by issuing a permit without complying with its own regulations and its siting criteria and without fully considering and investigating the potential impact on the health and welfare of Rogers' neighbors. Accordingly, the permit must be denied.

Based upon the foregoing Findings of Fact, Discussion and Conclusions of law, it is hereby:

ORDERED, that State Construction Permit, no.17,854-AG, was improperly issued to Neal Rogers and that said permit is hereby revoked.

AND IT IS SO ORDERED.

____________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

July 27, 1998

1. A "finishing hog" is a hog which weighs between two hundred twenty (220) and two hundred forty (240) pounds when ready to take to market.

2. "Regulation" is defined in S. C. Code Ann. § 1-23-10 (Supp. 1997) as an "agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency." This statute also states that "policy or guidance issued by an agency other than in a regulation does not have the force or effect of law."

This section further provides that the term "regulation" "includes general licensing criteria and conditions and the amendment or repeal of a prior regulation, but does not include descriptions of agency procedures applicable only to agency personnel. . . ."

3. 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 Administrative Procedures Act.

4. As discussed below, S.C. Code Ann. Regs. 61-9 (1976), at the time of the issuance of both the 1978 permit and the 1995 permit, did provide the procedures by which an applicant could obtain a "State permit," which included a permit for the construction and operation of a no-discharge waste lagoon. See 24 S.C. Code Ann. Regs. 61-9 §§ 1(32) and (35) (1976). However, there were no regulations which provided the substantive requirements for such permits.

5. There are a number of decisions issued by the Administrative Law Judges at the ALJD which have stated that these informal Guidelines are relied upon by the Department in its agricultural permitting. Further, even though they are not legally binding, they do provide to both the agency and to applicants uniform procedures and criteria for the permitting process.